Scotland: Independence Referendum

Lord Browne of Ladyton Excerpts

Thursday 30th January 2014 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, I am extremely pleased to follow the noble Lord, Lord Forsyth of Drumlean, and I join in the thanks and congratulations to the noble Lord, Lord Lang of Monkton, on securing this important debate. In the debates on the Scotland Act last year, I rather unkindly suggested to the noble Lord, Lord Forsyth, that Scotland had given up listening to him a long time ago. With his characteristic quick wit he came back to me immediately and said that he was never aware that Scotland ever listened to him. I can say unequivocally and, I think, uncontradicted by those who have heard him today that we all hope that the people of Scotland—my fellow Scots—listen to what he had to say today.

On that subject, perhaps I may say how pleased I am that the noble Baroness, Lady Goldie, is in her place today and that she will contribute to this debate. I certainly know that the people of Scotland listen to her, and we all wait with eager anticipation for her contribution.

I intend to concentrate on one subject alone in these few minutes: the profound implications of the forthcoming Scottish independence referendum for the defence and security of the UK.

The United Kingdom presently enjoys a very high level of security. However, although we face no existential threat, in the words of the national security strategy:

“Today, Britain faces a different and more complex range of threats from a myriad of sources. Terrorism, cyber attack, unconventional attacks using chemical, nuclear or biological weapons, as well as large scale accidents or natural hazards”.

Consequently, the task of our Armed Forces and our wider security machinery extends far beyond conventional defence. They discharge that remit to an extremely high level of competence. But that competence is built on partnerships—between us and international organisations such as NATO and the EU; between us and our allies, the US, Germany and France; and between Scotland and the rest of the UK. We can meet 21st century threats only with collective capabilities and shared approaches, and independence can only divide that capability, leaving us a little more disparate, but certainly leaving the people of Scotland more remote from the collaborative friendships that have served us so well for the past 70 years.

Let us consider intelligence as but one example. Scotland’s Deputy First Minister, Nicola Sturgeon, accepts that countering the threats facing Scotland would need,

“an independent domestic intelligence machinery”.

However, no part of the existing UK’s intelligence machinery can be disaggregated to an independent Scotland, and no effective intelligence organisation can be domestic. It would have to start from scratch and look outwards to threats that could emanate from anywhere in the world. What Scotland has already, which helps to provide security for its citizens and protect the prosperity of its businesses, could be replicated but not easily, certainly not quickly and not without considerable expense. As we wait for that, Scotland and the rest of the UK may be less effectively secure.

Further, while our relationships across the board with the US may often be misdescribed as “special”, we do have a unique defence and intelligence partnership of trust with the US. It allows us access to intelligence material without which we would be much hampered in containing the 21st century threats that we face. Although obviously secret and perhaps arguably requiring greater parliamentary scrutiny, it is essential to our security. It is improbable that an independent Scotland, particularly one intent on unilateral nuclear disarmament, would enjoy the same relationship. That also has implications, as the noble Lord, Lord Forsyth, said, for intelligence sharing with the so-called “Five Eyes” partners—Australia, Canada and New Zealand—NATO allies and, indeed, with the rest of the United Kingdom.

We must also recognise, as the noble Lord, Lord Forsyth, said, the very human dimension to this debate. Traditionally, Scotland has provided disproportionate numbers of soldiers and operatives to our defence and security forces. I think that I can say without fear of contradiction that no UK unit is without a Scottish presence—nor for that matter an English, Welsh, Irish or Commonwealth comrade. Thousands of Scots serve in our wider intelligence and security forces. Serving with distinction, they form an unbroken line back through Iraq, Afghanistan, countless peacekeeping missions and other crises, and two world wars, and deep into our history. This shared heritage and tradition is stronger than its individual components. The loss of them will not serve the interest of anyone in these islands, especially not the interests of the Scottish people.

Scots are everywhere in the defence architecture of NATO, where they enjoy considerable influence. They are accorded that influence because of their individual contribution but also because they come from the tradition, training background and experience of service in the UK Armed Forces. The armed forces of most European states of similar size to Scotland are restricted by their scale to home defence and exercises and to limited international involvement. Those few countries that are the exceptions established their military capability over years when defence spending was considerably higher, and that opportunity is gone for decades. Why would serving Scottish men and women choose to leave that tradition and join the armed forces of an independent Scotland when they could stay where they are and also enjoy the opportunity of promotion, advancement and the influence of being part of a UK larger force?

The inevitable loss of human and intelligence capability during the early decades of a separate Scotland, added to the loss of jobs in defence industries, the local impact of the removal of the Faslane naval base, the huge start-up costs for unique armed forces, the loss of access to intelligence and the loss of scale, will create very real risks to the people of Scotland and significant challenges for the rest of the United Kingdom. In the words of General Andrew Mackay, former GOC 2nd Division and commander of British forces in Afghanistan:

“It is easy to argue from within the comfort of a nearly 300-year-old Union that an independent Scotland would only require a small fighting force. It is not likely to be so comfortable after you have jettisoned your allies and you are on your own”.

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Browne of Ladyton Excerpts

Wednesday 16th January 2013 Lords Chamber

[Lord Browne of Ladyton]

My Lords, I am content to be associated with the challenge of the noble Lord, Lord Sutherland, to the Scottish Parliament and I am delighted to follow him. The earlier part of his contribution, in which he went through the elements of the proposed question and the criticisms that his expert group had made of it, was helpful and instructive. It complemented nicely the contribution of the noble Lord, Lord Crickhowell, who spoke with the authority of the Constitution Committee and its helpful report.

That report, although properly directed to a Minister of the UK Government, should really be directed to the Electoral Commission. The fact that the Constitution Committee of this House, with its modest resources, although it has a very distinguished membership, produced such an authoritative and well argued report in a comparatively short time reinforces the criticism from the noble Lord, Lord Forsyth, that the Electoral Commission, with all its significant resources, could not produce a report on the same issue in a time that was in step with the important decisions that needed to be made in relation to the process of this referendum.

It will be of no surprise to the noble Lord, Lord Forsyth, that even were he to divide the House, I would not have voted for his amendment. That is not because he is not a powerful advocate—he knows the view that I hold of his ability to make an argument—but for the reasons that my noble friend Lord Reid of Cardowan set out. I just think it would be bad politics at this stage in this process to support such an amendment to the Motion before the House. That is not to say that I do not have a lot of sympathy with many of the arguments that the noble Lord rehearsed, and which have been reflected in other contributions.

As I am speaking so late in the debate, I am in the fortunate position of not needing to repeat many of the points about the question, the role of the Electoral Commission or expenses. There is both the amount of expenses that the Electoral Commission proposes to allow for the conduct of the referendum and the fact that it appears that we have allowed foreign money to interfere with our domestic politics, contrary to everything that I think we would all agree on about not allowing that to happen. There are people taking advantage of that to bring in foreign money to influence significantly the conduct of this decision in Scotland. I say to the noble and learned Lord, Lord Wallace, that if our regulatory legislation on the conduct of elections has such an obvious lacuna in it that we are allowing foreign money to be used in this way to affect political decisions in this country, it is incumbent on us quickly to close that loophole. As it appears that it is planned that the referendum will take place in late 2014, we have the time to do that. If we can do something to achieve the closing of a lacuna in our electoral regulations to stop this happening, it is incumbent on us to do it. We all agree that we should not allow foreign money to be used in this way and should do something about it.

I intend to concentrate on a small number of points which I think are genuinely additional to what we have already heard. My first point is in support of the noble and learned Lord’s argument that this is being done properly in devolving the power to the Scottish Parliament. I was interested in the irony of the argument that my noble friend Lord Reid of Cardowan deployed for this: the analogy of those leaving the club being entitled to make this decision for themselves, while those who stay and want to change the rules have to do that with everybody in the club. I may be wrong, but I think the first time I heard that analogy was when it was deployed by the noble Lord, Lord Forsyth of Drumlean, in making the argument that there should be only one question in this referendum and that if we went on to the issue of devolution max—a phrase that has slipped away from this debate, thank goodness—that was a matter for everybody in the United Kingdom, not just one for the people of Scotland, and that it therefore had no part in this referendum. I agreed with him then. The noble Lord, Lord Forsyth, may be sitting there thinking that there is a degree of irony that this argument was deployed so skilfully by my noble friend Lord Reid to undermine the argument that the noble Lord was making.

However, there is an additional argument as to why it is right, in the circumstances that we find ourselves in politically and democratically, that we should devolve this power to the Scottish Parliament. The current Scottish Government won an overwhelming majority, a majority that overwhelmed all of the other unionist parties in the Scottish Parliament in 2011 on a manifesto that pledged to deliver a referendum on the issue of independence. Of course we can say that was beyond the competence of that Parliament and we can make all these clever arguments, but actually we were left with a democratic problem. The answer to that problem—we have to face up to the political reality of that—is to give the Scottish Parliament the power to run this and then deal with the issues in that context.

My second point is about the way in which we are proceeding. I agree with all of the points that the Constitution Committee has made, which are essentially criticisms of the way in which the Edinburgh agreement was concluded and presented and the lack of parliamentary involvement, scrutiny and engagement in that. But that agreement has now been made. We have to decide whether to respect that agreement made by the UK government leadership and the leadership of the Scottish Government. We have chosen to respect it, and I think that is right. It appears that we have here an order that we have a role to play in, which is what we are doing now. We also have an interesting constitutional linkage between the order and the agreement, the status of which appears to be a matter of dispute. I say that because I understand that the principal legal adviser to the Scottish Government is describing the agreement in a very particular way that is in contradiction to the way in which it is being described here. What is the legal status of the Edinburgh agreement? Can it be used by those who seek now to use it as some sort of legal platform to allow them to do other things, or is it, to paraphrase what the Secretary of State for Scotland said, simply an agreement between the UK Government and the Scottish Government as to how the referendum is to be run?

That leads me on to my third point, which is directly about the question. I will be astonished, as I think everybody will be, if the Electoral Commission does other than advise the Scottish Government that the draft question that they have proposed is inappropriate and will have to be changed quite radically, for all of the reasons that we have heard. The noble Lord, Lord Forsyth of Drumlean, in an excellent speech, described it as a misleading question. The fundamental problem with it, from my point of view, is not that it is misleading but that it is leading—leading in the way in which lawyers deploy that word: it is a question that begs its answer. A question that can instinctively be answered yes, as the noble Lord, Lord Stephen, suggested, is a leading question. In certain parts of the conduct of legal proceedings, we have a history and a tradition of not allowing those sorts of questions to be asked because they lead the witness to an answer. We do that for the very good reason that in certain circumstances, when people are engaged in that kind of a relationship with an interrogator, they incline to say what the person wants to hear. So it is a leading question, and I cannot for the life of me believe that the Electoral Commission will say that it is an acceptable question.

The real issue is whether the combination of this order and the agreement that the UK Government have extracted from the Scottish Government lead to the Scottish Government putting before the Parliament that they control effectively a proposal in a Bill for a question that reflects the advice that the Electoral Commission has given. In other words, will they respond properly to that advice? Whether we can have confidence that the man who leads the Government at the moment can be trusted to do that or not, we need to know that there is some form of audit or enforcement of that process that goes beyond our ability to be able, at some future election, to make the nationalists pay the price for what they did then, as the noble Lord, Lord Forsyth, said.

In those circumstances, is it legitimate to consider that a refusal to take that advice and an insistence on a question—a question which the Electoral Commission said was entirely inappropriate and leading and misleading for that reason—is reviewable in a legal sense in the light of the agreement that the Scottish Government have entered into with the UK Government? I ask that not because I am such a clever lawyer that I have worked it out for myself, but because I had an informal conversation with one of the leading legal brains in this country, whom I will not identify, who suggested to me that such a decision would be reviewable. If there is a preponderance of that view among other leading lawyers in the United Kingdom, that will be enough to ensure that the Scottish Government behave in the way in which we want them to.

That is an example of exactly the sort of thing that it is quite legitimate for us as politicians and the UK Government to be exploring publicly in this environment. When we debated the Scotland Bill we had concerns about what the Government would agree with the Scottish Government. We set them off, in a sense, with a mandate not to do certain things. They have to be congratulated on coming back and meeting a substantial part of that mandate. The noble and learned Lord who will be responding to this debate deserves a significant degree of credit. The way in which he conducted himself in the early stages of this controversy, particularly the speech he made at the University of Glasgow, changed the whole tenor of the debate in Scotland. He carefully and calmly pointed out the legal basis of the powers of the Scottish Parliament and of the UK Government in the devolution settlement. He did the same thing on Scotland’s potential membership of the European Union, in a speech he skilfully gave in Edinburgh, and changed the debate.

However, there are still some issues for which we could use the same sort of devices to shift in a way that would allow us to have the confidence that this referendum would be legal, fair and decisive when it is conducted.

[Lord Forsyth of Drumlean]

I am not a lawyer and I wonder whether the noble Lord might give me some free legal advice. I asked my noble and learned friend why the Edinburgh agreement was not linked to the order. Perhaps naively, I assumed that it was to avoid any litigation. This whole process was started on the basis of trying to get a legal base that would avoid any legal challenges interrupting the process. Is the noble Lord arguing that there would be the opportunity for litigation if it was linked, or is he arguing that there might be an opportunity even if it was not linked?

[Lord Browne of Ladyton]

There is at least an issue worth exploring as to whether, with the current arrangement of an agreement—a public agreement, which raises a level of expectation—and the order, if the Scottish Government behave in a particular way, the decision to do so might be judicially reviewable. I do not look forward to the prospect of getting bogged down in litigation which might end up in the Supreme Court, for the obvious reasons of the relationship between the Supreme Court and the Scottish Government. I do not want to resurrect all that, but if there is something in this—I think there may be—the very fact that it is being aired in the public domain with reliable, informed and trustworthy legal advice, such as the sort of advice that the noble and learned Lord, Lord Wallace, gave publicly on previous issues of controversy, could well settle these issues so that we could have confidence that we were moving forward. That is my point.

My final point is that at one stage not too long ago we were led to believe that the UK Government would deploy their resources in such a way that we would get a series of papers that would set out their view on the implications of independence for Scotland and its separation from the rest of the United Kingdom. That information is crucially important to the debate. I hope the noble and learned Lord, Lord Wallace, will take the opportunity when he replies to the debate to indicate to the House where we are in the expectation of that. We know that the Scottish Government are deploying all of their resources towards the objective of a yes vote in the referendum in 2014. There is no reason at all why the UK Government, whose policy is to keep the United Kingdom together, should not deploy extra resources in order to achieve that objective. We should be utterly open about that. The sooner the Government are able to do that, to disaggregate that information from the information that only they hold for the rest of us to be able to deploy in this debate, the better. I am delighted that we have this order now because we are getting to the meat of the issue. I am desperate to get to the meat of the issue, but I want to be in a position where I can make arguments that are convincing.

Constitutional Settlement

Lord Browne of Ladyton Excerpts

Thursday 11th October 2012 Lords Chamber

[Lord Browne of Ladyton]

My Lords, I thank and congratulate the noble Lord, Lord Maclennan, on proposing the Motion at the beginning of the debate. As we have been reminded by my noble friends Lord McConnell and Lord Foulkes and as the noble Lord, Lord Kerr, reinforced, the noble Lord, Lord Maclennan is, if not uniquely, at least very well-qualified to introduce this issue because of his consistent history as a great veteran of constitutional change. There is another reason of which he may not care to be reminded: in a sense, he is a one-man coalition and has a reach across the political spectrum of the United Kingdom which is not unique but is very extensive.

In the first minutes of the speech of the noble Lord, Lord Maclennan, my heart sank as his wide-ranging introduction, which covered, among other things, globalisation, the reform of multilateral institutions, the role of the Enlightenment and the better governance initiative, made me think that I had agreed to respond to a debate that was well beyond my scope. I was glad to see that in the substance of his speech he came back within the scope that I had anticipated. I have some notes that address some of those issues, although when the noble Lord, Lord Steel of Aikwood, intervened in the speech of my noble friend Lord Soley and introduced the idea of your Lordships’ House becoming a revising chamber for the devolved Assemblies and Parliaments, my heart sank again as I thought I would have to grapple with procedural and other complications of that sort. The noble Lord will excuse me if I am not tempted into a discussion about whether the Parliament that he presided over has an adequate structure of committees to provide that revision and anticipation. That is a debate for another date. That may be work for a constitutional convention or some other institution which may be created at some time in the future.

Once again, I am indebted to my noble friend Lord McConnell of Glenscorrodale for his consistent contributions which set out the progressive case for the union of the United Kingdom. He does it very well because he not only does it by assertion but explains the reasons for it in a way that is accessible.

That leads me to my second point, which is that when I looked at the words of this Motion, I thought that there was a danger of this becoming another kind of Scot fest, with arguments about independence or the pros and cons of independence and nothing else. As one of those who has argued consistently since I have been in this House for a diversity of voices in a debate about the future of the United Kingdom, I am delighted to see that the noble Lord, Lord Cormack, and my noble friends Lord Judd and Lord Soley have ventured into the Scottish environment to make a contribution. However, I regret that the diversity of voices in this debate did not manage to extend to a woman’s voice. I should like to hear the voices of more women in the debate about the union of the United Kingdom because they have a significant amount to offer.

It has become fashionable recently for politicians to explain what is called their back story. We have heard a lot of that over the past couple of weeks. My noble friends Lord McConnell and Lord Judd, in explaining their back stories, explained why these islands are so important to so many people. I come to this Chamber every day from a household in London where I have a son who has made a choice to pursue his career here. He is unlikely to go back to Scotland, although he may go elsewhere. The diversity and integration of these islands are crucial to this debate. Hearing voices from beyond Scotland from people who have connections with Scotland and who value those relationships, in exactly the same context as my noble friend Lord McConnell explained, is valuable. There are probably no Members of the House who do not have connections somewhere across these islands without going very far back. When we scratch the surface we find that we are all in a sense connected to each other.

I shared the view of my noble friend Lord Hughes of Woodside when I first looked at the words of the Motion. The topic of the debate is extremely timely—and has become even more timely with yesterday’s unofficial announcement that there has been an agreement at least about the number of questions in the referendum. I was concerned that the wording would be unhelpful to the arguments that I want to make, first, because I do not believe that come 2014 we will face a landscape in which the UK is broken apart. I am not complacent but I do not believe that that is what the people of Scotland want or what they will vote for in 2014. I am pleased that my noble friend Lord McConnell does not believe it, either. The words could have been misinterpreted to suggest that that was what he anticipated.

Secondly, I was uncomfortable about the wording because I thought it implied that the people of Scotland deem the current devolution settlement grossly deficient, and consider that a much more radical constitutional settlement is required to prevent secession. I know that legitimate voices in this debate suggested that we need to go further in the context of devolution; I will come to that in more detail. However, I do not believe for a moment that the people of Scotland are overwhelmingly of that view. It may be that there is a preponderance of political commentary on some of these issues—we have already heard comments about that—but that is not my sense of where the people of Scotland are. I will come to the polling figures in a moment because I agree with the noble Lord, Lord Steel of Aikwood, on this issue.

Thirdly, I was uncomfortable because the wording seems to imply that the case for considering the issue of the future constitutional settlement in general is contingent on the break-up of the United Kingdom, or the prospect of such a break-up. Again, I am pleased that the noble Lord, Lord Maclennan, indicated that it was not his intention to suggest this, and that his was a different argument. I will take advantage of this opportunity to address some of these concerns and issues because, first, as the noble Lord, Lord Steel, said, polling has consistently showed that the majority of the Scottish public are not in favour of secession.

Since last year, the number of people in favour of breaking up the United Kingdom has steadily declined, depending on which poll one looks at, from about 38% or 40% to the most recent poll, conducted by TNS BMRB, which shows 28% of respondents supporting secession. Much more importantly, it shows a trend of a hardening of the vote of those who had not made up their mind in favour of the status quo. That is welcome news and will reinforce the trend that the UK and Scottish Governments have finally reached a point of agreement on the terms of the referendum. Despite the reassurances given to the House yesterday by the noble and learned Lord, I am not sure that I am as content that they appear to have agreed to change the nature of the franchise for this individual purpose—for many of the reasons that have already been expressed in this debate.

Now is the time to focus on making the case for why the United Kingdom is stronger together than apart. It is time to begin a frank discussion about what departure from the union would mean for Scotland. It is also time to consider the strength of the devolution settlement as it stands. That is because it is misleading to imply that great consideration has not been given, and given recently, to the question of the constitutional settlement in relation to Scotland. This is in many ways the big con of those who argue for independence. The only way that Scotland can achieve meaningful autonomy is by leaving the United Kingdom, but it is arguable that the Scottish Government already have many, if not all, of the tools they require for autonomy. The Calman commission process was set up by all the unionist parties when I was the Secretary of State for Scotland. It was completed by this Government in the Scotland Act 2012. Despite the continued assertion and insistence of the noble Lord, Lord Kerr, that it is a ragbag, it is part of a process to consider the ways in which the devolution settlement can be strengthened. In short, it grants the Scottish Government new tax-raising powers, including powers to set a Scottish rate of income tax and borrow on the capital markets that are worth in the order of £5 billion to £6 billion. Crucially, it also makes provision, subject to agreement, to devolve further taxes in the future. We will not go into the detail of the debate we had on the Scotland Bill in relation to those powers. Here, achieved, is a clear and concrete vision for the future of devolution, a vision that is evidence-based and has the support of Scottish business, civil society, experts and academics. It will support the future prosperity and aspirations of Scotland within the union.

Before I have even addressed the meat of this debate, I have run out of time. Perhaps I may ask the indulgence of the House to say something that I think is very important. I commend to all those who wish to make a contribution to this debate the speech made by the noble and learned Lord, Lord Wallace of Tankerness, on 2 October at the Edinburgh Centre for Constitutional Law. I have captured the BBC’s “Scotland’s future” web page. If you had to rely on this page, you would not believe that that speech had even been made, which is an utter disgrace for a public sector broadcaster. I do not have time to do it justice, but this speech sets out in a thoughtful, reasoned, accessible and persuasive way many of the arguments that I would wish to make.

I also want to say this to the noble and learned Lord: the BBC has been remiss, but he should also capture the page on the Cabinet Office’s website on constitutional reform. It still contains a list of things that have now been consigned to the dustbin of constitutional reform in this country and makes no reference to the ongoing process in Scotland. I suggest that the Government ought to listen carefully to what has been said in this debate to find a way of identifying at least the interim, or even the long-standing, end they have in mind for constitutional reform. They can draw on the Constitution Committee of this House and others, and then they can come back to this place to explain the process of how that will be done across all parties in a way that they can all buy into together.