Defamation Act 2013: Northern Ireland
Lord Browne of Ladyton Excerpts(11 years, 4 months ago)
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Lord Browne of Ladyton
My Lords, in his opening sentence, the noble Lord, Lord Lexden, said that this is a short debate. Short it certainly has been, and we know it will last no longer than an hour. However, the contributions have been remarkably informative and, I must say, remarkably comprehensive. I join those who are indebted to the noble Lord, Lord Lexden, for giving your Lordships’ Committee the opportunity to debate this important subject. I personally am doubly indebted to him for his generosity in engaging with me as his neighbour in Millbank House in the preparation for this debate, and for encouraging my thoughts in particular directions.
I speak as one who was in an Executive position for a very happy but all too short period of time, and who was part of the previous Government, which helped to form the structure of the current devolved governance in Northern Ireland. I say at the outset that I utterly respect Northern Ireland’s right to exercise its democratic functions in the way in which we designed it to. I consider this to be a transition phase, and we all look forward to being able to move to a more normal type of politics in Northern Ireland, rather than one which, to a degree, freezes the divisions of that society and its constitutional structure. However, I utterly respect the right of the Northern Ireland Assembly to make its own decisions, as I do the right of the Scottish Parliament.
However, this is not a situation in which we are competing with a decision made openly and properly by the Northern Ireland Assembly where we have had an open debate. From my review of all the evidence of what has happened since we debated the Bill in this House and it received Royal Assent, it would appear that the very opposite has happened in Northern Ireland. Early in his remarks, the noble Lord, Lord Lexden, had the benefit of a quote by Paul McDonnell. I thought that that was utterly comprehensive. It was a skilled piece of drafting by Mr McDonnell, and he encapsulated almost all the arguments in a couple of short sentences. It was very clear what his opinion was about the necessity of the application of this Act to Northern Ireland, for all of the reasons he set out.
The noble Lord, Lord Bew, said that there was no debate going on in Northern Ireland. With respect to him, I do not think that he meant that in the way in which some may have interpreted it. In fact, a debate is going on in Northern Ireland. There is a very public debate going on, with contributions by legal figures, business people, civic society, politicians and the media. There are two sides to this argument. The overwhelming body of opinion is on one side of the argument, and that is the side represented in this debate, but there is another side to that argument.
The only places where this debate is not going on are the Executive and the Northern Ireland Assembly. That is where the debate should take place. Those are the people who have substantial responsibility for the governance of Northern Ireland. The arguments that are put forward relate to the putting off of inward investment; the vulnerability of ordinary citizens in the internet age; and the good business reasons for a consistent regulatory framework in an environment where there has always been a consistent regulatory framework, for the fear of libel tourism.
If these arguments have any substance, it is the responsibility of the devolved politicians in Northern Ireland to engage with them, and to ensure that the people of Northern Ireland have the best regulatory framework in this area and that it serves their needs. It has always been necessary in this area of law and in many others. The noble Lord, Lord Lester of Herne Hill, with his characteristic clarity, set out the dilemma facing the Government. I have some sympathy for the Minister if she chooses to engage with the challenge of the questions that the noble Lord posed. Does she accept that analysis of the conjunction effect of the European Convention on Human Rights and the Belfast or Good Friday agreement? Does she accept that the Government face this dilemma and responsibility and, if so, what do they plan to do about it? That is the principal question.
The noble Viscount, Lord Colville of Culross, in his informative contribution, brought evidence from his journalist colleagues in Northern Ireland of existing practices that show a culture of threat and actual libel tourism. If that is indeed right, there is every reason to believe that whether or not there is a problem with the existing law in Northern Ireland, the potential for it to develop and become a serious problem for these islands is there. Do the Government share that interpretation and recognise that risk and, if so, how do they intend to engage with it?
The noble Lord, Lord Black of Brentwood, explained with some authority in detail why investors will be put off. His argument was eloquently convincing and is reflected in some of the public discourse in the Northern Irish media. There is no reason to believe that people with his level of knowledge should be wrong. Again, this undermines the shared objective of all the Benches in your Lordships’ House to see Northern Ireland flourish. This is a responsibility of the Government. We are investing substantial amounts of money in Northern Ireland to ensure that its economy moves from depending on the public sector to the private sector. Do the Government share the view that investors will be put off, and what do they intend to do about it?
The noble Lord, Lord Bew, as he has consistently in our debates on defamation, made a compelling case for the need for independent thinking and for independent and challenging academic and scientific publications with their important role as drivers of innovation and our economy. All parties represented in this debate went into the 2010 election with a commitment to reform the law of defamation. He said that denying the reform to the people of Northern Ireland, as appears to be the case, was done without the knowledge or consent of the executive Ministers of Northern Ireland and without any explanation, never mind an adequate one. From my perspective as someone who loves Northern Ireland and its people, that is not good enough.
My party supports reform of the defamation laws and is pleased that they are where they are. These opportunities and freedoms should be open—I have to say this as a Scot—both to the people of Northern Ireland and to the people of Scotland. It is a challenge that the Government face and will have to engage with at some time. There is no time like the present. Will the Minister engage with some of these issues?
Scotland Bill
Lord Browne of Ladyton Excerpts(12 years, 7 months ago)
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Lord McCluskey
My Lords, I welcome both Amendment 8 and Amendment 9, which, I understand, are being taken together. As for Amendment 8, I wrote to the noble and learned Lord the Attorney-General for Scotland some time ago suggesting that this would be an appropriate power to be included in the Criminal Procedure (Scotland) Act 1995. My view, which he has echoed, is that this power, used when thought necessary, could sometimes be useful to speed up cases going through the courts. It is clear that the two law officers, the Advocate-General and the Lord Advocate, can be trusted to use this power only in circumstances where it would serve the interests of justice, namely by preventing delay.
I believe I understand the purpose of this amendment and of Amendment 9, but could the noble and learned Lord explain one or two matters? The first is the exception made in the words that conclude Amendment 8,
“otherwise than on a reference” .
Could he explain precisely the purpose of those words? The second point relates to Amendment 9, to Clause 36. This disapplies subsection (5) to certain appeals taken by either of the two law officers. Why is this particular subsection disapplied? The answers will assist those practitioners who may have been confused by the considerable changes that have taken place, both in the Bill itself initially, and in the proceedings in this House to what is now Part 4 of the Bill.
Would the noble and learned Lord also explain under what circumstances and at whose instance a criminal case might be referred to the Supreme Court before the stage at which the facts of the case have finally been determined, and before the case itself has been finally determined by the court below? May I ask in particular, with regard to the commencement provisions in this Bill, when it is envisaged that Part 4 of the new Act will be brought into force? In asking that, I recognise that the Lord Justice-General—the Lord President—will have a considerable amount of work to do in preparing an act or acts of adjournal to cover the new matters. I have no doubt that he will have to consult widely on that; however, I hope that it could be done within months, rather than in any longer period. When is it envisaged that Part 4 will be brought into force?
I made an error in speaking to the Committee some time ago. I referred at that stage to the judges who had been consulted by the noble Lord, Lord Hamilton, before he put in his written representations. I mentioned that one of them was the noble and learned Lord, Lord Phillips of Worth Matravers. In fact, the two judges referred to were the Lord Chief Justice of England, the noble and learned Lord, Lord Judge, and the Lord Chief Justice of Northern Ireland, Sir Declan Morgan. I apologise to the noble and learned Lord, Lord Phillips, for that mistake.
Finally, I express my thanks to the Advocate-General for Scotland for the very careful and considerate way in which he has dealt throughout with the Bill and all the representations he has received. Two groups made a considerable contribution to the shape of the Bill and I shall mention them in a moment. The Advocate-General said that he would listen, which he undoubtedly did. He also made judgments with which I am happy to say that I agree. The two bodies are those mentioned by him. The group led by Sir David Edward, known as the expert group, made a substantial contribution to analysing the problems. Secondly, there was the group of experts that I had the honour to chair. We could not call ourselves the expert group because that name had already been appropriated by Sir David Edward’s group, so we called ourselves “the Supremes”. However, we kept that name to ourselves for reasons of modesty and to avoid confusion with the pop group of the same name. Between us and with the help of others in your Lordships’ House, we now have in the Bill a scheme for appeals on human rights issues in criminal cases in Scotland in the Supreme Court, and for other compatibility issues, that is greatly superior to the one that somehow found its way unannounced into the Scotland Act 1998. Time will show whether I am right.
Lord Browne of Ladyton
My Lords, for the reasons set out in his initial remarks by the noble and learned Lord, Lord McCluskey, I also support these amendments. They improve the provisions of the Bill, to which my noble and learned friend Lord Boyd of Duncansby has made a significant contribution over time, as have those others mentioned by the noble and learned Lord, Lord McCluskey. I understand that the exercise of a power of this nature has proved beneficial in the past to the administration of justice in Scotland and that it would be to the detriment of the powers if it were not included in the provisions of the Bill.
Lord Wallace of Tankerness
My Lords, I thank the noble and learned Lord and the noble Lord, Lord Browne, for their welcome for these amendments. As I indicated, they reflect listening and working together, not only between the various groups but between the Lord Advocate and me and the respective officials in the United Kingdom and Scottish Governments. The noble and learned Lord, Lord McCluskey, made the point that the amendments will allow an opportunity for cases to be expedited in certain circumstances. Very often, these are circumstances in which a number of cases are waiting for a determination before they can be resolved.
The noble and learned Lord asked why the words,
“otherwise than on a reference”,
appear in Amendment 8. As I sought to explain, these relate to circumstances in which a case is being heard by the High Court on appeal. Therefore, it is different from a situation in which the High Court deals with a case on referral. Those words apply to an issue that comes up on an appeal that should be referred to the Supreme Court.
The disapplication of subsection (5) is the subject of Amendment 9. As I tried to explain in speaking to the amendment, it is anticipated that if there has been a referral from a lower court to the High Court on appeal, it will be possible for either law officer then to refer to the Supreme Court without a requirement for leave from either the Supreme Court or the High Court of the Justiciary. I hope that explains it.
The noble and learned Lord also asked when it is anticipated that these changes will come into effect. I cannot give him a clear date but I share his expectation and hope that it can be done in a matter of months. As he rightly points out, there is considerable preparatory work to be done. I strongly suspect that an act of adjournal will be required, which will need work by the Lord Justice-General, the Lord Justice Clerk and the court authorities in Scotland. However, we hope to make good progress in implementing this.
Lord Browne of Ladyton
My Lords, those who have been engaging in our deliberations on the Bill and following its process cannot have failed to notice that not only have we been able to consider it today—a Tuesday—but that we have not had to wait until the fag end of the day’s business to do so. Of course the deep irony is that this is the day on which we least needed to get on early to consider the matters before us. However, we are moving through the Bill at a pace, and as we are nearing the end of our consideration of it I think it appropriate for me to make a few remarks.
I do not think that anyone could disagree that the Bill has been subject to rigorous scrutiny during its passage through this House, and I am confident that it is a better Bill because of that scrutiny. At least two Members of the House—my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Wallace of Drumlean—have made significant contributions.
Lord Browne of Ladyton
I am sorry—it is Lord Forsyth of Drumlean. On this occasion I cannot even give the excuse that I am tired. In Committee and at Report these two noble Lords paid assiduous attention to almost every detail of the Bill and ensured that we all had the opportunity to scrutinise it rigorously.
I also want to thank the noble and learned Lord the Minister. I extend my thanks beyond him to the Bill team and to officials in the Treasury who have shown me the greatest courtesy. In a sense they have supported me by giving me access to substantial amounts of information on the Bill. Throughout this process they have engaged with our Benches and with my noble and learned friends Lord Davidson and Lord Boyd of Duncansby, and my noble friend Lord Eatwell, who have shared the responsibility for our Front-Bench work on the Bill. They have engaged with us very positively and I am exceptionally grateful to them for that: it has made my job much easier. I think that we have improved the Bill particularly on the issue of references to the Supreme Court—a process in which my noble and learned friend Lord Boyd of Duncansby has been intimately engaged. The process has been wholly satisfactory and I think that we can all be satisfied with the final result.
I feel duty bound to inform noble Lords of the conversations with the Government that have taken place since Report on the issue of the conditions for using the extraordinary power to add new devolved taxes that is now contained in, I think, Clause 23. There was significant consensus across the House that it would be valuable to place in the Bill the conditions for using this extraordinary power—first, to safeguard its use by the Executive, and, secondly, as a way of obtaining the buy-in of the Scottish Parliament on these criteria. As I was substantially responsible for encouraging that consensus across the House, I have a responsibility for, in a sense, disappointing the House at this stage in the debate.
As I have also been very careful to say at all stages of the Bill, we have to be mindful of the political realities that we currently face. We have been treated to some interpretation of those political realities in our rather extended and diverse debate on the Bill, but one has become used to that in considering some of its aspects. The political realities are such that the Government’s commitments at Report were unsatisfactory, as I said in the debate. In essence, a year after enactment they are to bring forward a report on implementation of the financial provisions which will make specific reference to the list of conditions for using this power. That is the issue that exercised my and other noble Lords’ minds. Significantly, we have learnt since Report stage that the report will also be submitted to the Scottish Parliament, which will have an opportunity to thoroughly debate and agree to the provisions. That at least provides the opportunity for the engagement of the Scottish Parliament that I sought. However, it is not guaranteed to happen and I am not overplaying it.
Those additional facts, combined with the clear priority of the LCM—the legislative consent Motion, which was to be debated before we came to Third Reading—were, on balance, enough for it to be considered unwise to bring forward further amendments on this issue. With some reluctance I accepted that conclusion, despite being aware that I was disappointing the expectations of many noble Lords, and noble and learned Lords, in the House. I had encouraged those expectations, so to that extent I apologise. If it has in any way damaged my relationship with noble Lords or reduced their view of my worth to this House then I shall have to endeavour over the course of the coming months and years to remake that. However, that is where we are.
I turn now to the amendments of the noble Lord, Lord Forsyth of Drumlean, as somebody has to. I do so with some reluctance because I know how it encourages him to come back.
I start off by saying that I have sympathy with his analysis of the paucity of understanding of the full implications of this Bill in Scotland. I agree with him that we ought to ensure that the Bill is better understood in Scotland. I almost immediately part company with him thereafter, for two reasons—first, because renaming the Bill will do little to address that deep-seated problem for which many of those in devolution parties have to take responsibility. It is inappropriate to expect those who do not support devolution but seek independence for Scotland to trumpet the opportunities and potential benefits of a piece of legislation that reinforces devolution. Although it will probably never settle the argument of Scotland’s relationship with the rest of the United Kingdom, for some people in Scotland—and I expect this to continue throughout the rest of my life—if properly understood, it will strengthen the union.
The responsibility lies with us. It is potentially helpful, but not the answer, to simply change the Long Title of the Bill. I understand why the noble Lord, Lord Forsyth, seeks to do that, but you do not have to listen to him for very long to realise that it is a vehicle for him to articulate arguments that he has been articulating to the people of Scotland for some time in the confident knowledge that, if he lives long enough, some day he will be proved correct. The fact of the matter is, with all due respect to the noble Lord, that although we listen to him intently and I enjoy immensely his ability to make an argument, the people of Scotland stopped listening to him a long time ago. It is unfortunately true and I am sorry about it, because they would be better informed, perhaps, if on occasion they did listen to him—but they stopped listening to him a long time ago. That is part of the problem. The British tourist abroad, speaking slowly and loudly, does not work any longer with Scotland. Those of us who put ourselves forward for political office have an obligation to make our arguments in a much more sophisticated way and go with the grain of people’s expectations. Of course, we all have responsibility for generating those expectations, as indeed I did—and disappointed expectations at Report on this Bill. Those of us who believe in the union all have our DNA to some degree in the state of the Scottish scene at the moment, and we have a responsibility to deal with the issues and challenges generated from that.
This is a good Bill, and I fundamentally disagree with the noble Lord, Lord Forsyth, in that regard. It is a constitutionally significant Bill, and the new tax-raising and borrowing powers are worth in the order of £5 billion to £6 billion, marking an historical development in the financial accountability and autonomy of the Scottish Parliament. Furthermore, measures such as the devolution of drink-driving and speed limits as well as the regulation of air weapons ensures that the devolution settlement continues to respond to the needs and aspirations of the people of Scotland.
In recent months, much reference has been made to a new, notional devolution settlement, or maximum devolution, which for the most part has taken the form of a fill-in-the-blanks exercise. But ultimately politicians are kidding themselves if they think that the people of Scotland are interested in some esoteric debate about devo-max versus devo-plus versus the status quo. This Bill is the consequence of a sensible process; its origins lie in the Calman commission, and I repeat my thanks to those Members of this House and others who served on that commission. The work that they did has not been given the credit that it deserves, and it is well worth revisiting the argumentation for the recommendations that gave rise to the Bill. The Bill presents the people of Scotland with a clear and concrete vision for the future of devolution, a vision that is evidence-based, thanks to the Calman commission; has the support of Scottish business, Scottish civic society, experts and academics; and will when properly understood and implemented support the future prosperity and aspirations of Scotland within the union.
Scotland Bill
Lord Browne of Ladyton Excerpts(12 years, 7 months ago)
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Lord Steel of Aikwood
The nine months starts after that. I hope that my noble friend is not going to press his amendment.
In the second section, it is of course the case that the single question should relate to the future of Scotland in, or out of, the United Kingdom. You cannot assume that it would be in the United Kingdom.
Leaving that to one side, the kind of information that we would need is what the effect would be, to take one example, on the financial situation in Scotland if it were independent. There seem to be three options: Scotland is in the eurozone, which used to be SNP policy; or it is dependent on the Bank of England, in which case it is not proper independence; or else we have a Scottish currency like the old Irish punt. These options need to be spelt out. That is the kind of information for which my noble friend is pressing, and I hope that when my noble and learned friend comes to reply he will be able to give us some indication of the kind of work that is going on on these issues.
Lord Browne of Ladyton
My Lords, I, too, welcome the general thrust of the amendment of the noble Lord, Lord Forsyth, in so far as it encourages the preparation and dissemination of objective and credible information about the effects of separation on all aspects of public policy and, by implication, the benefits of the union to the people of Scotland. I resist the temptation to add to the growing list of areas of public policy for which this momentous decision will have potentially detrimental implications. The noble Lord, Lord Forsyth, listed a significant and impressive number of them, which were then augmented by the intervention of my noble and learned friend Lord McCluskey and, indeed, by my noble friend Lady Liddell.
My own view is that there is hardly any area of public policy in Scotland that will not be affected in some way by the decision, should the people of Scotland decide to separate from the rest of the United Kingdom, which I am confident—and certainly sincerely hope— they will not. It is inarguable that this is the most important decision that the people of Scotland will ever, collectively, have to make. It cannot be made unless it is informed by facts: not assertions, not massaged statistics, but facts. On the analogy that if you want to leave a club you can leave it but, if you want to stay and change the rules, then everyone who is still a member of the club has a view, the rest of the people of the United Kingdom are also entitled to know what the facts are.
I agree with the general thrust of the debate and the implication of the noble Lord’s opening remarks that the Bill is not the appropriate place for this debate. Whether or not the points that the noble Lord, Lord Steel, made in relation to delay and the wording are correct, I do not think we will try to impose this amendment into the Bill. That is the right thing to do. If there is to be no statutory obligation on Secretaries of State to provide the necessary information to inform this debate then, at the very least, there needs to be a clear undertaking from the Government that they will place an obligation on Secretaries of State to put that information in the public domain. They should draw on the broader debate that is taking place here about what mechanism or mechanisms should be deployed or created in order to disseminate this information and to give it the stamp of credibility and objectivity that will be necessary to inform the debate.
I would be concerned if there were to be a proliferation of initiatives. I accept that it is entirely appropriate and correct that the Select Committee on Economic Affairs, of which the noble Lord, Lord Forsyth, is a member, should address its attention to this important decision. It is at the heart of political life in the United Kingdom at the moment and there would be no better work for the committee to do. I expect that in the other place the Select Committee on Scottish Affairs will carry out similar work and that other organisations, such as academic institutions, will wish to address themselves to this work in the coming period.
In Scotland, a well resourced institution which can bring together this work and give it a genuine stamp of credible objectivity is necessary. Many people in the professions in Scotland—including the legal profession, academics, economists, people who have served in the Armed Forces, people who understand and have made significant contributions to international affairs over the years, many of whom sit in this House—could make a contribution to the debate.
Those of us who are trying to put together the infrastructure that will inform the debate in Scotland ought to apply our minds to the creation of a genuinely credible and independent institution operating out of Scotland—perhaps an academic institution—which could be a receptacle in which all the information could be deposited, verified independently and disseminated. We should clearly invite the nationalists to contribute to that discussion so that what comes out of it has that stamp of credibility and objectivity, and not the taint of a political objective.
Lord Pearson of Rannoch
My Lords, perhaps this would be an opportunity for me to refer to the anomaly—some would call it the absurdity—of the present requirement for a sound moderator, or silencer, to be treated as a separate weapon and be separately registered on a firearms certificate. After all, the silencer is only a tin can which is screwed on the end of the rifle. When the Government are looking into this area in collaboration with the Scottish Government, I suggest that this would be an opportunity to remove that requirement.
Lord Browne of Ladyton
First, my Lords, I thank the noble Earl for his great courtesy in writing to me extensively on this issue to introduce the arguments that he intended to make in support of his amendment. I was in the privileged position of having almost all of the points that he made in advance of his addressing your Lordships’ House, so I thank him for that. Unfortunately, despite his great courtesy to me, I cannot find myself being in a position of supporting his amendment. I am sure that he will appreciate why since, in Committee, I argued for even greater devolution of responsibility over air weapons to the Scottish Parliament. It would be entirely perverse and inconsistent for me now to support the restriction on the exercise of the limited devolved powers that the Scottish Parliament is going to receive, having made that consistent and coherent point before.
I do not accept the dismissal by the noble Lord, Lord Forsyth, of this argument as not being sufficient justification, because to restrict the power that one devolves in this fashion undermines devolution. I do this for two reasons. First, if we agree to devolve this power to the Scottish Parliament, we should trust that Parliament with this power. Secondly, I see no reason to believe that the Scottish Parliament would not be persuaded by the arguments that the noble Earl has made about the potentially unintended consequences of an onerous regulatory process. I am sure that, in consultation, it will be capable of regulating in a way that deals with the issue at the heart of the noble Earl’s amendment, although not at the heart of his broader argument about implications.
I do not propose to repeat all the reasons why the people of Scotland are so exercised about the misuse of air weapons, and why there is a public demand for some form of regulation. I and the noble Lord, Lord Forsyth, have spoken about those before. I congratulate the noble Earl on giving us, in the official record of our debate, a repository of the success of restrictions imposed on air weapons and the obvious effect that sensible regulation has had on their misuse. It would be utterly ungracious of me to point out that I do not remember the Gun Trade Association arguing for these restrictions, and I remember being persuaded on some occasions by lobbying from that area that these restrictions would not work, and would merely cost a lot of money unnecessarily. However, that does not alter the fact that at some stage these arguments may prove to be true, even if they did not in relation to those restrictions.
I congratulate the noble Earl on at least being honest and willing enough to say, from the perspective and interest that he has, that regulation of this nature can be positive and can have a beneficial effect and that if it perhaps has a cost, and if that cost is saving lives or injuries, then it is a cost that society may be prepared to bear.
For the reasons I have given, I am unable to support the noble Earl’s amendment but I congratulate him on his contribution to the debate today, and on providing a quarry of argument which I am sure will inform the Scottish Parliament’s exercise of the powers that I hope it will be given.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Shrewsbury for again giving the House the opportunity to discuss these matters. His amendment seeks to ensure that if, following devolution of the regulation of air weapons anticipated by this clause, the Scottish Government were to introduce a system of visitor permits for air weapons, holders of firearms or shot-gun certificates issued in other parts of the United Kingdom would not be required to obtain such a permit in order to use air weapons in Scotland. As has been said, in devolving the regulation of air weapons, the Government are acting on a recommendation of the Calman commission, and we believe that the regulation of air weapons is best controlled locally. My noble friend Lord Shrewsbury has made a very well reasoned case and, as has been noted, he indicated that where sensible and proportionate restriction or regulation of air weapons has been used, it has been done so to some effect. Nevertheless, it is our view, as indicated earlier and in the Bill, that this issue is better decided by the Scottish Parliament.
I do not think that this is a small point. I say to my noble friend Lord Forsyth that the nature of devolution is that a power is devolved, and it is then up to the devolved body to determine how it wishes to exercise that power, obviously within the constraints of the law—and, taking into account some of the very pertinent points made by my noble friends Lord Shrewsbury and Lord Gardiner of Kimble, when that body comes to make policy conclusions. Not the least of these is the cost effectiveness. My noble friend has focused on the cost implications of establishing and enforcing a licensing regime, and I recognise the points that he has made so clearly. These will be matters for the Scottish Parliament and Scottish Government to take into account. We hear them regularly talking about the restrictions and restraints on their funding, but the block grant will have to fund any measures that they take. This will obviously be one of the considerations that they have, obliged as they will be to put forward with any accompanying Bill a memorandum on its cost implications.
As I know my noble friend is aware, the Scottish Government have set up a Scottish firearms consultative panel, and I understand that the director of the Gun Trade Association, an organisation of which my noble friend is the honorary president, sits on that panel. The panel is currently considering, if there is to be devolution of this power, how best to implement any proposals for regulating air weapons. The panel will consider cross-border issues. Indeed, I understand that there was a meeting on Monday at which cross-border were on the agenda. If this amendment were included in the Bill, it would fetter the Scottish Government’s and Scottish Parliament’s discretion as to how they might go about the task of regulating air weapons following devolution and would second guess the ongoing work of the Scottish firearms consultative panel. However, as I have indicated, the arguments put forward by my noble friend are very persuasively articulated. I am sure that the Scottish Government will be open to representations made to them when they are shaping any legislative proposals.
My noble friend Lord Caithness raised the possible costs that would feed through into other parts of the United Kingdom. Those will of course depend on the actual nature of the policy that is put in place. I see the noble Lord, Lord Empey, in his place. He will no doubt correct me if I get this wrong, but perhaps it is worth bearing in mind that, as I understand it, air weapons are controlled in Northern Ireland and any person wishing to go there from Great Britain with an air weapon must apply for a certificate of approval. There is a special form available on the website, which needs to be submitted via a sponsor about six weeks in advance of any visit, but there is no fee. However, a visitor to Northern Ireland from outwith Great Britain requires a visitor’s permit, the point being that air weapons are already devolved to Northern Ireland. I have always believed that one of the strengths of devolution ought to be a willingness to look at experience in other parts of the United Kingdom where policies have been taken forward. Indeed, there is a policy already in place regarding the regulation of air weapons. I hope that what happens in Northern Ireland will be looked at by the consultative panel.
Lord Cameron of Lochbroom
My Lords, it is not merely a matter of syntax—it is what the Crown Estate Commissioners represent. They represent a single body with jurisdiction over the Crown Estate in each of the four constituents of the United Kingdom. It is clear that the amendment would cure the problem and recognise that responsibility. I therefore have no hesitation in supporting it.
Lord Browne of Ladyton
My Lords, noble Lords will remember that in Committee I spoke to an amendment in my name and in the names of my noble and learned friends proposing the amendment of the title in the Bill to the simple title of “Crown Estate Commissioner for Scotland”. That did not find favour with the Government—particularly, as I recollect, with the Advocate-General for Scotland—but in the course of the debate it became clear that the Committee was of one view: the least attractive title for the Crown Estate Commissioner was the one that was in the Bill.
The noble Lady, as she has told the House, spontaneously came up with this proposal in the course of the debate, and it appeared to find favour with the government Benches—at least, they were more inclined to respond positively to it than they were to the proposal that had emanated from the opposition Benches. My own view is that there is a distinction between the proposal that I put forward and the one that the noble Lady put forward, but it is in the category of a distinction with little difference. But I understand why the Government may be more inclined to respond positively to something that comes from the Cross Benches. In those circumstances, as Members of the House will see, my noble and learned friends and I have appended our names to the noble Lady’s amendment. I support it for all the reasons that she articulated then and which have been debated at some length. Therefore, I do not think that we need to go into them again.
I was not convinced by the noble and learned Lord’s defence of the title “Scottish Crown Estate Commissioner” but I was convinced by his defence of the process of selection that I had also sought to amend. I have repeated that amendment by laying Amendment 11, but for the purposes of forward planning I advise that when it comes to the appropriate time I will not be moving it.
The Duke of Montrose
I am very interested in this issue, on which I spoke in Committee. However, I am still rather puzzled as to what the Scottish Parliament will gain from this aspect of devolution because, as far as I can see, it already has powers to introduce any speed limit that it wishes on any road. As I drive along roads in Glasgow and out in the country, I come across speed limits that are set at 40 miles an hour and 50 miles an hour. Therefore, I hope that the Minister will indicate why this aspect of devolution is required.
Lord Browne of Ladyton
My Lords, I support the noble Lord’s amendment. My reading of the Calman commission report is that it made no distinction between the types of vehicles that should be included in this aspect of devolution. I believe that this amendment supports the Calman recommendation and that the power should be devolved in full, as was recommended by that commission. I agree with the noble Lord, Lord Forsyth, that the omission of HGVs would create confusion on Scottish roads, should there be an unnecessary change of speed limits.
When this issue was raised in Committee, I think the Minister said that the distinction arose as a consequence of the development of signage, which was deeply convincing. However, he also wisely indicated that it would be proper for him to take the issue away and reflect on it. Therefore, the signposts are clear. The House’s position is well signposted for the noble and learned Lord. I hope that he has followed the direction of those signposts and has persuaded his colleagues in the Department for Transport that this is a common-sense proposal. I will resist the temptation to speak to Amendment 13, which I would have supported had the noble Lord spoken to it. As he did not, it is not appropriate for me to speak to it.
Scotland Bill
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Lord McFall of Alcluith
My Lords, as a predecessor of the noble Lord, Lord Empey, as Minister for Education in Northern Ireland, I was very aware of the number of Northern Ireland students who went to Scotland for their education and, indeed, stayed in Scotland or in the UK generally as a result. I was left with the lasting impression that education is a UK-wide initiative. In a globalised world where the transfer of wealth and economic power is going from west to east, we have to keep the integrity of the UK education system, but I fear that we are losing it with the current situation in Scotland.
The noble Lord, Lord Vallance, and Scottish universities have made the point about the stability of the system. In particular, cross-border student flow is given at 24,000 students from England applying to Scottish universities, which could cause chaos for 2013. That is a legitimate argument, but the main issue here is the actions of the Scottish Funding Council, which in a letter in December last year said that £27.8 million was going to be taken off Scottish universities. In the next four years, the sum will be more than £100 million. That is not a capricious act on the part of the Scottish Funding Council; it is because the Scottish Government have stated that that is the case. That will decrease the teaching grants as well as the quality of student experience at Scottish universities.
We are facing a crisis at the present time and it is appropriate for us to debate this. If we were only debating Amendment 1A, then I would not be supporting the noble Lord, Lord Forsyth, and others. However, we have Amendment 59, which is giving us a year’s grace. Frankly, the Scottish Government are having their cake and eating it. This amendment should be saying to them: “You cannot have your cake and eat it. If you want to provide quality education, then you have to be honest about it”. A dishonest conversation has taken place in Scotland and there is a narrow, introspective approach to education where there should be an inclusive, global approach. If we are making a plea for anything tonight, it is to be honest in our debate and ensure that we will look at the UK as a whole and keep the integrity of the UK education system, so that we have a more prosperous country with increased skills which can accept and face up to the challenges of globalisation in the years ahead. We should not run backwards, as, sadly, I think is happening in Scotland at the moment.
Lord Browne of Ladyton
My Lords, in opening my contribution to this debate, I am tempted to repeat what other Members have said and express my frustration and disappointment that, once again in dealing with this Bill, we have been deprived of a substantial amount of the time that was planned for debating it. In the interest of time, however, I do not intend to go into that in too much detail, other than to say that the frustration that all noble Lords feel about this, and have repeated almost every day of the Bill’s deliberations, is exacerbated by the fact that it now appears that it was all unnecessary because we have managed to add a week to the Recess.
We understood that this was because time was limited and we would lose the Bill if we did not do certain things before certain dates. Managing that against the challenge of trying to find time for the Government to make their position clear about the way forward on a referendum for Scotland, and allowing that to feed into our deliberations, caused me to go along with some of that inconvenience. Now we discover that it was all unnecessary because we can add a week to our Recess. Much of this could have been done on the other side of the Recess. I say that with deep regret. I excuse, once again, the noble and learned Lord from any responsibility for this because I suspect that it came as much of a surprise to him as it did to the rest of us that we could have an extra week’s Recess and that this week was not precious and necessary for the conclusion of the Government’s business. The reason for that is that the decision about the Recess dates is entirely within the gift of the Government and was not, and cannot be, discussed in the usual channels. I deeply regret that we are in this position because it appears it was all unnecessary.
I turn to the amendments tabled by the noble Lord, Lord Forsyth. We had the advantage of debating at length a similar amendment on the second day in Committee. I intend, by reference to that debate, to shorten my remarks. I support devolution. I even support the asymmetric devolution we have in the United Kingdom; I am not a federalist in that sense. Devolution is an incomplete process and it is for the people of the regions of England to decide when they are ready for it. There is quite significant devolution across these islands, including substantial devolution to those who run this great city of London. Of course, one of the consequences of devolution is that there will be different policies and different consequences as a result of those policies across the United Kingdom. If that makes people feel uncomfortable, they should not support devolution. However, those of us who support it are prepared to live with that.
When we debated this last time we established that, with the possible exception of rights of audience for the legal profession, there is only one example of the practice of discrimination as a consequence of separate policies, and that is the issue which is concentrating our minds today. The practice of discrimination appears to apply only to the funding of higher education student fees. It is for that reason that this is such a significant issue and why it has attracted the interest of the House. The need for a resolution to it appears to have captured the imagination of noble Lords. In Committee we had the benefit of a contribution by the noble Lord, Lord Sutherland, which he has augmented today. Also, the Minister set out in detail the history of how differential fees came about and how long they have been in existence.
Lord Browne of Ladyton
That is the point: it has got worse. It has got worse now after 11 years and the answer appears to be that we will impose a solution by amending the Scotland Bill because we have the Scotland Bill before us. The noble Lord, Lord Forsyth, shakes his head. I am sure that is not what he intends but that is what we are doing. From what I can gather having listened carefully to what noble Lords have contributed, those who were involved in decision-making and those who have been party to the process, we are doing this without any attempt to try to get what a number of noble Lords, including the noble Lord, Lord Sutherland, the noble Lord, Lord Empey, and others, have called for, which is a discussion across the United Kingdom to see if we can resolve this issue. Everyone’s briefing appears to be that we have been put into this position because of the activities of others and these are the consequences.
Lord Forsyth of Drumlean
The noble Lord, Lord Stephen, made an important point in his speech which I do not think is appreciated. We have been using the term fees but there are two issues here: one is fees and the other is the teaching grant. The fees have been of the order of £1,800 per head; the teaching grant has been £5,800. I understand the noble Lord’s problem in that he feels that his colleagues may have played a part, but when the noble Lord, Lord Stephen, and his Labour colleagues decided on this, the issue was the fees of £1,800. The £5,800 per place taken by rest of UK students has been paid every year up until now. It is only next year that that money is being taken away. That is the £28 million that the noble Lord, Lord Sutherland, is discussing.
The Scottish Government have changed the position and the numbers are very much larger. They have used opportunistically the position where students are going to have to pay high fees in England to turn the rest of the UK students into a cash cow for the universities. That is where the change has occurred and why my noble friend Lord Steel says it has got much worse.
Lord Browne of Ladyton
I appreciate that it has got much worse but the catalyst was a similar action by the coalition Government in that in England they transferred the burden from the public purse to the student. It was a similar action. This is not the place to debate whether student fees in a particular place are right. In the context of devolution, the debate is about whether it is appropriate for your Lordships’ House to impose on the Scottish Parliament an obligation, or a restriction, on a power that they have been exercising in a particular way for the best part of 10 years, when no attempt has been made to have a serious cross-UK discussion about the situation to see whether it can be resolved.
Lord Foulkes of Cumnock
I am not going to argue that ultimately this Parliament can decide anything it wishes in relation to any part of the United Kingdom. I certainly would not argue that because I respect devolution and was a great advocate for it. Could my noble friend deal with the point raised by the noble Lord, Lord Selkirk of Douglas, about discrimination. Discrimination is still a matter for the United Kingdom Parliament—it is a reserved area—and is it not overwhelmingly an issue of discrimination that has been raised today?
Lord Browne of Ladyton
I am happy to deal with that point, but I will deal with it directly by responding to my noble friend on this issue. My noble friend was a Member of the Scottish Parliament for four years, during all of which time the Executive of that Parliament had the differential fee. I am not aware of my noble friend at any stage during his time in that Parliament raising this issue as one of discrimination against students from England, Wales and Northern Ireland or suggesting that something should be done—where the power lay, and where it was created.
Lord Foulkes of Cumnock
I shall answer my noble friend’s question and I hope that he will answer mine. It never came up specifically as an issue. My noble friend needs to take account of the point raised by the noble Lord, Lord Steel, that we are talking about an issue entirely different in scale. As the noble Lord, Lord O’Neill of Clackmannan, said in relation to the National Gallery of Scotland—can you imagine that gallery saying, “Are you Scottish? You can come in free”. If the gallery had then asked an English person to pay £1, they might have said, “Okay, it’s only £1”. But imagine that they were asked for £10, £20 or £30—that is the kind of scale that we are talking about. It would be entirely wrong, and this is the same principle. It is discrimination.
Lord Browne of Ladyton
It is discrimination, but I do not think that a little discrimination is any better than a lot of discrimination. The fact of the matter is that there has been discrimination for 10 years, and we have established in this debate that no serious attempt has been made across the United Kingdom to deal with it.
I will deal directly with the point raised by the noble Lord, Lord Selkirk. There is an argument, and I am attracted by it, that we reserved to this Parliament the right to deal with issues of discrimination and that, as a matter of law, we can deal with it here. I am not learned enough in the law in this area to know whether that is so, but as a matter of law, in terms of devolution, we can deal with anything; we are the sovereign Parliament. We do not need to rely on the reserved area to claim our right to deal with it—we can deal with anything.
This is politics and we are doing this in the context of probably the greatest challenge that the union of the United Kingdom has faced in any of our lifetimes. Those of us who believe in this union are trying to manage a difficult political situation in which all of the parties represented in the Scottish Parliament have their DNA in this discrimination to some extent. I exclude the noble Lord, Lord Pearson, from that. We now decide in an entirely opportunistic way—encouraged, as the noble Lord, Lord Forsyth, points out, by the nature and the scale of the discrimination—to deal with it by imposing these conditions.
And when do we do it? We do it at a time when a Government Minister can come to the Dispatch Box and say that they have just negotiated a legislative consent motion to deliver this Scotland Bill, which is the policy of all our parties after weeks if not months of negotiation. We are just at the point where we can do something that can ensure that all the negotiations and discussions are wasted. We are back to square one again, back into confrontation and back into giving those who lead the Scottish Government the script that they want: that the unelected House of Lords has told the people of Scotland what they can do. They will say, “They give us devolution with one hand and then take it away. They let us use it for 10 years and then, when we use it in a way that they don’t like, they take it away. That is exactly why we need to be independent of these people”. This is bad politics in my view.
There is a way forward. We should accept all of our responsibilities for the situation that has been created by the actions and the interactions of the Government at the UK level with the history that was left to the nationalists when they became the Scottish Government and the challenge that they faced in terms of university funding. We should sit down together and try to resolve the situation—not in the interests of whether we have the right to impose this but in the interests of the young people whom we want to live, work and be educated together for the benefit of the United Kingdom. That seems a much more sensible way of dealing with the situation, rather than trooping through the Lobbies tonight and making a point which will be to the detriment of the issue that most of us feel passionately about—the preservation of the union.
Lord Foulkes of Cumnock
I wonder if my noble friend could explain why I got a text saying, “Whip off”.
Lord Browne of Ladyton
My noble friend is an experienced Member of this House and has been a Member of other parliaments. I understand this position, and I think that he should understand the position, too. The Opposition Benches are voting against this amendment. He is not obliged to vote.
Scotland Bill
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Lord Stoddart of Swindon
My Lords, I will not interfere in Scottish matters; I would not dare. However, I have concerns about the business of the House and the way in which the House is being treated. Last Thursday the House sat until, I think, 10.38 pm. Last night it sat until 12.43 am. That is not good enough, particularly when Members of the House of Commons enjoy the privilege of going home very much earlier.
We in this House have repeatedly implored the Government not to bring forward so much legislation that is so badly produced that we have to spend a huge amount of time not only discussing the overload of legislation but correcting the many mistakes that have been made in the framing of that legislation. At the end of every Session, as far as I can remember, we have come up against the problem of time and important Bills have been rushed. The noble Lord, Lord Forsyth, and other noble Lords who spoke were absolutely right to express concern and to raise the matter of rushing through a very important constitutional Bill at the very end of a Session.
I intrude into the debate to express the hope that for the next Session the Government will recall what happened in this two-year Session. If they cannot get things right in a two-year Session, perhaps we may hope that they will reconsider their programme for the next Session to ensure that both Houses of Parliament can consider legislation at a proper pace and level without being kept here in the watches of the night, and that they will produce less legislation that is better prepared so that we can have a little more time to discuss Bills at leisure, at proper length and as deeply as necessary.
Lord Browne of Ladyton
The consideration of this Bill in Committee in this House has been peppered with expressions of frustration from all parts of the Committee at the way in which we have had to handle this business. I have already had my say in that regard, and I welcome the noble Lord, Lord Stoddart of Swindon, to the group of us who have had our say and have expressed how disappointed and, in some cases, angry people have been about what has happened. I do not intend to repeat what I have said in the past, which noble Lords who have heard me speak on this subject before will be pleased to hear.
However, I want to add myself to the list of those who will be shown in the record of today’s proceedings as not criticising the noble and learned Lord, Lord Wallace of Tankerness, who has not been part of the problem but has been, with many of us, part of an attempt at a solution. I thank him for the fact that we have a Written Statement today, because in the normal timetable of the way in which these complicated matters have to be considered in government—and I know what they are—we would not have had a Written Statement, so he must have persuaded somebody who is fairly senior or fairly influential, which are not necessarily the same thing, to have it prepared for today. I think we are all grateful to him for doing that. I want to record how grateful we on these Benches—particularly the Front Bench but the Back Benches too—have been for the open and transparent way in which the Government and the Bill team have engaged with us on the progress of negotiations with the Scottish Government and in trying to find ways of dealing with these complex and difficult matters in a more efficient way.
Since we last met in Committee, there have been two developments of significance. The noble Lord, Lord Forsyth, referred to both of them. As my noble friend Lord Foulkes suggested, they both raise some optimism for the future handling of the Bill, but they bring with them their challenges. The Written Statement reflects the outcome of the negotiations. I do not know about the noble Lord, Lord Forsyth, but I knew that a negotiation was going on, and I think that, on each occasion that he referred to it, the noble and learned Lord indicated that there would be some negotiated agreement that would potentially involve some change to the Bill, so I expected that.
In my darker moments, I anticipated perhaps greater changes to the Bill than there have been, but I am not entirely sure that we can appreciate the significance of the elements of the negotiation that relate to the financial provisions of the Bill without some significantly greater explanation from the Government and greater time for study of them. I was not aware that these particular negotiations were going on. They adopt into the way that Scotland’s budget and the block grant will be adjusted following recommendations from the Holtham report. That report relates to the way in which the Welsh Assembly Government are funded. When I discovered that this morning, I downloaded the executive summary of the Holtham report. It is 72 pages. I do not think my printer would have enough ink in one cartridge to print the whole of the Holtham report.
I have tried to find in that executive summary exactly what this mechanism is and what its implications are. I suspect that I have not succeeded. I suggest to the noble and learned Lord that at some point soon, because we are running out of time, the Government either provide the House with a commitment that we will be given an adequate opportunity to scrutinise properly what amount to significant new details of the process of devolving tax and borrowing powers, or explain the mechanism for doing so, if it can be done in short.
Lord Forsyth of Drumlean
My noble and learned friend is absolutely right. Amendment 74B is indeed about the impact on the privileges of the House of Commons. Everything that I said can relate to that if I think very carefully on my feet. Amendment 74B relates to the previous debate that we also had with my noble friend Lord Sassoon about enabling new taxes to be created in Scotland by Order in Council. That related to new Section 80B created in Clause 28, which is the power to add new, devolved taxes. It says:
“Her Majesty may by Order in Council amend this Part so as to … specify, as an additional devolved tax, a tax of any description”.
I cannot think of an example since ship-money where it has been possible by Order in Council to create a new tax. We have very particular procedures for creating new taxes. The Finance Bill right up until, I think, 1969 had to be considered on the Floor of the House of Commons in Committee. Special rules apply to the conduct of the Finance Bill, including—still, I think—that it is not subject to guillotine. The noble Lord, Lord McAvoy, would be able to help me with that. I certainly think that it is not subject to a guillotine in Committee. The Chancellor of the Exchequer has a leeway, given to no other Minister in the Government, to have as big a Bill and as much time as required. That is because the Finance Bill is central to the whole nature of Parliament, which is about voting and raising means of supply.
The particular innovation in this Bill enables a completely new tax to be created. Mr Alex Salmond might decide he wants a window tax or a tax on landed estates or our local income to finance local government. All that is required is that an Order in Council is approved by both Houses of Parliament. As has already been pointed out, Orders in Council are not normally able to be amended and are not normally voted against in this House. I am most grateful to my noble and learned friend for telling me which amendment I am speaking to. I have tabled this amendment because I cannot understand how, given the position of this House in respect of taxation, it can be right that first, new taxes can be created by order in the other place and, secondly, this House should be involved in consideration of the imposition of new taxes by order. That seems to impact upon the privileges of the House of Commons.
In truth, however, this amendment is simply another opportunity to raise a serious constitutional innovation, which creates very unfortunate precedents. I am hoping that even at this late stage I can impress upon my noble and learned friend that the explanation we were given for these powers being contained in the Bill, when we considered them earlier, was that the Calman commission had recommended that there should be powers in the Bill to provide for additional, specified taxes. This Bill does not provide for additional, specified taxes; it gives a completely open-ended power.
We have just received, as was referred to earlier, an indication of the agreement that has been made in order to get Alex Salmond’s permission for this House to continue with the Bill. This is the deal that the Government have entered into. It provides for the inclusion of some new taxes—some of which we have already debated, such as the aggregates levy. Why can my noble and learned friend not amend the Bill on Report and make provision for those specified taxes to be included? I do not like the order-making power. He could put that provision into the Bill and it could be approved, then it would go back to the House of Commons and would be approved there. Why can we not have a list of specified taxes which are to be included rather than this open-ended and highly undesirable procedure, which I believe challenges the very basis of this House? I beg to move.
Lord Browne of Ladyton
My Lords, the amendment moved by the noble Lord, Lord Forsyth, seeks by very specific provision to restrict the operation of Section 28 of the Act. We on these Benches are broadly content with the Act, but the noble and learned Lord who speaks for the Government on these matters will, I hope, remember that we moved an amendment seeking to put into the Bill at least a mechanism, which would lead further into secondary legislation, to have some reflection of the criteria that need to be satisfied before either a new or an existing tax could be considered appropriate to be devolved. In response to that amendment, the Government’s position was that those criteria were already set out in a White Paper predating the publication of the Bill.
Our position on these Benches is still similar to that of the noble Lord, Lord Forsyth. It would be better if there were some restriction in the operation of Section 28—or, at least, some shape to how it would operate—by reflecting through primary legislation into secondary legislation the criteria that need to be satisfied, since it appears that the Government have a clear and advanced view of what those criteria will be. This is an issue that we intended to return to on Report, having looked at the drafting of an appropriate amendment. I gave notice at the conclusion of the debate in Committee on Clause 28 that that is what we intended to do. To that extent, we are in agreement with the noble Lord, Lord Forsyth, and I think also with the mood of the House when we debated this provision.
Reflecting on the specific terms of the agreement with the Scottish Government, it appears that the Government’s position on the aggregates levy is now that it will be devolved, as I understand it, not if but when the issues which are preventing its devolution are resolved. Up until now, I had thought that the conditionality in relation to the devolution of the aggregates levy was in the control of the European court. It now appears, though, that the Government’s confidence that these issues can be resolved is such that they were able to agree with the Scottish Government that the aggregates levy will be devolved when that resolution takes place and these issues are resolved.
If that is the case then I agree, with regard to that tax, that it would be more appropriate to have in the Bill a provision that could be activated and brought into force at that point, and that this House and the other place would have an opportunity to consider the implications otherwise for the devolution of the aggregates levy in detail. When we debated that issue, if I remember correctly, the noble Lord, Lord Forsyth, proposed a detailed amendment covering the aggregates levy, and the noble Lord, Lord Sassoon, told him that technically it was broadly correct. I may be misquoting his exact words, but he said that the noble Lord had made a good job of it and that it was fit for purpose. If that is right, at least the Government are in a position where most of the work has been done. That may need to be tweaked, and I dare say that the Government would not want to accept someone else’s amendment wholesale and may want to change it slightly, but we could be in a position on Report to have a debate that would do two things: satisfy this House’s desire to have a debate about the detail of that tax and its devolutionary implications, and immediately show good faith to the Scottish Government because this would put a provision in the Bill that could be activated to devolve the tax.
I turn to the amendment. One of the coincidences of this amendment coming forward, or it may be not entirely a coincidence, is that this House has been exercised by the issue of financial privilege in some detail in committees, briefings, debates and discussion since the House of Commons recently claimed financial privilege in respect of Lords amendments to the Welfare Reform Bill. When I saw the amendment of the noble Lord, Lord Forsyth, I was not clear exactly what he was getting at, but there was no shortage of briefing available to me about financial privilege.
Lord Forsyth of Drumlean
I was simply trying to find a way of raising the subject again. There was no deeper meaning behind it.
Lord Browne of Ladyton
I do not know whether I am grateful to the noble Lord for that, because I had a very clever ending to this part of my contribution and he has prevented me moving towards it as quickly as I wanted to.
I have never been able to do this before in a debate: I intend to quote the Clerk of the Parliaments. There is a Library note on the issue of financial privilege; it goes into this issue in some detail, and only our Parliament could produce something like this that was so interesting and esoteric. Paragraph 18 of this report says:
“In conclusion, it may be worth making two points … First, until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.
It seems, and I am grateful for this, that this is the complete answer to the noble Lord’s amendment. It would be ill advised of this House, given that it has that power, to seek for the first time to try to control it with legislation at its own hand. I cannot, as I am sure the noble Lord will be devastated to hear, support his amendment in these circumstances.
Lord Steel of Aikwood
My Lords, my noble friend Lord Forsyth has a technical point about taxation through Orders in Council, but I want to come back to this basic point regarding the Bill: Section 28 talks in bold type about the power to add new devolved taxes. That is something to which my noble friend is opposed; he does not want the Scottish Parliament to have the power to create more taxes, but I do. I think I am right in saying that the Calman commission also wanted to give the Scottish Parliament the power to add more taxes. Going back even to the referendum that we had, I know that my noble friend keeps saying that there is a difference between varying taxes and adding new ones, but that is too subtle a distinction.
Lord Browne of Ladyton
My Lords, I do not support the noble Lord’s amendment. In case anyone should be in any doubt about this, I do not support a referendum on any aspect of this Bill because I do not think that it is appropriate for us to make any of the provisions of the Bill conditional on a referendum, either by the Scots, the whole of the UK or indeed the English. I shall perhaps have an opportunity to explain later that referendums are for extraordinary circumstances and this is not one of those sets of circumstances.
Secondly, in this context, I would never support a referendum by the people of England in any event because, in my view, that would be a fundamental misunderstanding of the concept of devolution. Devolution depends on the relationship between the United Kingdom and Scotland and not between England and Scotland. I am not being pedantic; I could go on to say why England, and not Wales and Northern Ireland. The noble Lord nods so I am sure that he gets the point. This is a vehicle for him to have a wider and broader debate and I understand that. It is important that we do not repeatedly categorise these issues as issues between England and Scotland. This is about devolving power to a part of the United Kingdom and holding that part of the United Kingdom in the United Kingdom. We have done it to Northern Ireland and to Wales and we have done it substantially to London in many aspects of public policy.
It is challenging and difficult for this Parliament and for people to understand because it is utterly asymmetric across the country, but, in my view, it is a celebration of the diversity of the United Kingdom. I know that there are those among us—the noble Lord, Lord Steel, is one of them—who would like to see a more federal structure where there was less of an asymmetry and much greater clarity. However, the reality is that many parts of the United Kingdom are not ready for that, as they have made clear to us, and it should not be imposed upon them. Ironically, in the history of devolution in Spain, that sort of structure was imposed on the Spaniards and those who were least interested in it made the most out of it. I say that in passing. So I do not support a referendum. I would certainly not support a referendum by only English voters.
I turn to the no-detriment principle. I thank the noble Lord for raising this issue again. In the absence of my noble and learned friend Lord Davidson of Glen Clova, who is part of our Treasury team and is also a Scottish affairs spokesman, I have to deal with it. I was reluctant to engage myself in the debate the last time it came up, but got slightly frustrated with the misrepresentation of what I thought was the no-detriment principle. I stuck my nose into it, suggesting, indeed, that this letter be written, but it appears that the letter has just given those who wish to misrepresent the no-detriment principle even more ammunition to do it.
The no-detriment principle in this context was first raised, as I understand it, in the Command Paper that accompanied the Bill. My understanding of the no-detriment principle is probably best expressed, interestingly enough, in a paragraph of the Holtham report. This may be entirely the wrong part of the Holtham report for the purpose of the agreement that has now incorporated this into mechanisms for the future between the Scottish Government and the UK Government, but it does what I want it to do. It is paragraph 5.2 of the substantial executive summary of the Holtham report. The executive summary is 72 pages long. I shudder to think what the whole report is like, and I certainly do not intend to spend a weekend between now and the Report stage reading it.
If I have understood the Written Statement from the Secretary of State for Scotland, the principle of no-detriment is now to be qualified by reference to the Holtham report and the mechanism in it about budgets and block grants. If I have misunderstood that entirely then, at the risk of encouraging the same sort of pantomime that we saw earlier in another place, perhaps someone on the Front Benches could either nod or shake their head, but if I am right this encapsulates the no-detriment principle:
“Risks consequent on the actions of the Assembly Government should be borne by its budget and risks consequent on the action of the UK Government should be borne by UK budgets. Risks outside government control and arising from elsewhere should be pooled across the union”.
It goes on to refer to how difficult that is to do. I accept that it is very difficult, but as I understand it, that is what lay behind the no-detriment principle. If Holtham is now to be incorporated into that agreement, then that may make it easier.
If that is right, with all due respect to the noble Lords who have supported this interpretation, adjusting the block grant for Scotland in response to policy decisions made by the UK Government in no way undermines the accountability of the Scottish Parliament or the Scottish Government. They are accountable for what they do. The point about the no-detriment principle is that they should not be accountable to their electorate for what the UK Government do. We can call it what we like, but that is essentially what this is trying to achieve.
I see the noble Lord moving in his seat. This is what I fear, of course, when I start to get into this area of complexity. Before I allow the noble Lord to intervene, perhaps I may remind the Committee that when we were discussing the developments before we started on the fifth day of Committee I said at the outset that it would be extremely helpful if, between now and the conclusion of the debates on the Bill, the Government set themselves the task of explaining where we are now in relation to this principle and how it works. It may be that the noble Lord, Lord Forsyth, will never be satisfied that accountability should be encapsulated only in the actions of the Scottish Parliament. He has a very distinctive view about the Bill and about the Parliament’s relationship with the rest of the United Kingdom, which few of us share. However, some of us could be satisfied that there might be a way of expressing this with greater clarity than it has been, and perhaps also of incorporating it into part of the Bill before it is beyond amendment so that it becomes clearer than it is at present.
It now appears that we have not only to read a Command Paper but be sufficiently familiar with the details of the negotiations between the Scottish and UK Governments and no doubt adept at finding our way around the full version of the Holtham report to understand how the no-detriment principle will work. I prefer the simple statement in paragraph 5.2. If that is what the Government are about, I support them. If they could find a way of making that clear in a way that we could refer to in future to ensure that that is what will happen when people adjust grants, I would support them even more. I look to the noble and learned Lord, who has not until now dealt with these financial provisions—neither have I—to reassure the House that in the near future there is a mechanism that will allow us to do that.
Lord Wallace of Tankerness
My Lords, I am in a position similar to that of the noble Lord, Lord Browne, in having to deal with matters that hitherto were dealt with by my noble friend in the Treasury. I fully accept that my noble friend’s amendment is a hook. I share the view expressed by the noble Lord, Lord Browne—
Lord Browne of Ladyton
My Lords, I support the general tenor of this debate in so much as it encourages the noble and learned Lord to explain the Written Ministerial Statement more fully and how we will take forward—if we are to do so—the agreement that has now emerged between the Scottish Government and the coalition Government. It would appear that that agreement has encouraged the Scottish Government to do no more, according to the Statement as I read it, than to,
“table a Legislative Consent Memorandum recommending that the Scottish Parliament votes in support of the Bill on a further Legislative Consent Motion for the Bill”.
That sentence has been somewhat extravagantly interpreted, perhaps for other purposes, by some of my noble friends and other noble Lords.
It is incumbent on us to pay appropriate respect to the Scottish Parliament, which will have to debate a Motion. No doubt some members of that Parliament may disagree with the agreement that their Government have reached. How they vote will be a reflection of the way in which that Parliament operates, which seems to copy our voting discipline substantially, from what I can see: that is, people often conform to the position adopted by their party. I was amused by the idea that a country that did not have a genuine separation between its Executive and its legislature would no longer qualify for membership of the European Union. Given that our Executive seems to be part of our legislature, if we were not already members of the European Union, we might struggle to get membership of it on that criterion.
I approach this issue in this way because I have been on record repeatedly in this Committee as being confident that the Scottish Parliament would pass a legislative consent Motion. I am confident because it has already done it and because many significant Members of the Scottish Parliament have already voted for a legislative consent Motion on most of what is before us in this Bill. To the extent that the Bill has been amended, it has been amended at their request. It therefore did not seem consistent or politically likely that that Parliament would not pass a legislative consent Motion at some stage. I have said this before and I am not saying it now in the knowledge that an agreement has been reached. I have been confident that that would happen. However, I have also said before, and I repeat, that as far as I am concerned that has never been a condition precedent for us getting on and dealing with this Bill. I have been prepared to entertain debate with noble Lords about what we need to do if there is no legislative consent Motion, although I have been confident that there would be one, and it seems that my confidence was not misplaced.
However, from my perspective of the politics of Scotland and where we are at this challenging time, it is important that we keep our word to the Scottish people and pass this Bill, which has its genesis in Calman and prior to that in the Scottish Parliament and all the devolution parties in Scotland. We should proceed to offer these additional powers to the Scottish people through their Parliament. It would then be a matter for the Scottish Parliament to decide whether to accept them, and it would not be our responsibility, and certainly not the responsibility of an unelected Chamber of this Parliament, if it did not offer them.
As far as I am concerned, it has never been a condition precedent of completing this work that we guarantee that there will be an LCM. However, it now appears that there will be one. At least to the extent that we can anticipate that the agreement that has been reached will persuade the Members of the Scottish Parliament to vote for this LCM, I think we can work on the basis that there will be one. However, we need to get more detail from the Government of what this deal that they have struck with the Scottish Parliament actually means.
I have already said this afternoon that the Government should assure the House that Parliament will be provided with an adequate opportunity to scrutinise properly what amount to significant new details on the process of the devolution of tax and borrowing powers. I do not fully understand the relevant paragraphs in the Written Ministerial Statement. We do not have much time to get to grips with them, but we will never do so if no one explains them to us. What exactly does the reference to the Holtham report mean? The noble Lord, Lord Forsyth, referred to the paragraph that states:
“The Government will work together with the Scottish Government over coming months and years to give operational effect to the powers including the block grant adjustment, in a fair and sustainable way”.
What does that mean? How will that agreement, when it is reached, be subject to parliamentary scrutiny here in our Parliament?
The next bullet point states that the Secretary of State for Scotland and Scottish Ministers will produce between them,
“annual reports to the UK and Scottish Parliaments on the progress of transferring the tax and borrowing powers to the Scottish Government”.
There must be some method of accountability envisaged in this deal that allows this Parliament to be assured that the Bill we are passing in the context of the deal that has been struck will ensure that the Government are answerable for what they are doing in relation to these issues.
I am content that we should continue with this debate provided we are given some explanation of how this process is to be carried out. I am happy to engage, time permitting, in any number of briefings outwith this Committee with Ministers, or with Members of this House more broadly, so that they can explain how this process is to operate. I would also like to be assured that Members of the other place will get the same briefing, because it is absolutely certain that they will get 15 minutes to debate all this and decide it when it gets back to them. They may all be cut off in mid-sentence as they try to tease out what this means. I therefore encourage the noble and learned Lord to come to the Dispatch Box now, or at some stage over the next few hours, and explain how this is to be done.
I have already said that I broadly welcome the other aspects of this agreement—the non-financial elements—because I do not think that they represent the hollowing out of the Bill that was suggested earlier. They are comparatively small concessions. However, as my previous contributions to this debate, and those of my noble and learned friend, have indicated, they are concessions that we were encouraging the Government to implement in another way because we thought they went beyond the Calman recommendations, which we support. Legislative consent Motion conditionality is less relevant to the Bill now than it ever was. In any event, it was never relevant to my support for it. However, we now have a much more complicated environment that has generated the possibility of that LCM. When the noble and learned Lord comes to the Dispatch Box now or at some stage within the next few hours, I urge him to explain to us the implications of that much more complex environment.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friend Lord Forsyth for his amendment. He obviously had great prescience in tabling it because it has been debated today when a Written Ministerial Statement has been brought forward paving the way for a legislative consent Motion. As the noble Lord, Lord Browne of Ladyton, made clear, that is what it does—it paves the way for a legislative consent Motion, and it will be a matter for the Scottish Parliament to determine whether to pass it. However, as the noble Lord, Lord Foulkes, indicated, he would be rather surprised if the majority party in the Scottish Parliament did not take the lead from its leader.
I was asked by the noble Lord, Lord O’Neill, for more details. I have not held any direct negotiations with the First Minister on these matters. My right honourable friend the Secretary of State has been primarily responsible for the negotiations involving individual Scottish Ministers. The Written Ministerial Statement sets out the agreement that has been reached and we should be happy to provide further details to facilitate debate on Report. I had already indicated as much with regard to the Holtham proposals. Clearly, if other issues need to be raised, it is only right that I should facilitate that debate. As I think was acknowledged in our short debate before agreeing to go into Committee, a considerable amount of hard work was done to ensure that that agreement was concluded and, in turn, to ensure that that happened before today’s debate.
It is difficult for me to make other arrangements while I am here on the Front Bench, but I am more than willing—even at the conclusion of our discussions this evening—to meet noble Lords to arrange for briefings on paper, and perhaps to see what other briefings between Members of your Lordships’ House and relevant officials could be facilitated, so that when we come to Report or Third Reading, when there may be a bit more time, your Lordships will be properly informed and briefed.
I certainly pick up the point made by the noble Lord, Lord Browne, that Members of the House of Commons have more than a legitimate interest in these matters, because if this House chooses to pass amendments—and the Government will be bringing forward amendments to reflect some aspects of the agreement that require changes to the Bill—they will also have to be considered in the House of Commons. I certainly want to facilitate such discussions as best I can and, if it is thought suitable—and it is not at a ridiculous hour, which I hope it will not be—I shall be more than happy to meet anyone who wishes to have a preliminary discussion at the end of our proceedings today about how those discussions might best be achieved.
It has always been the Government’s intention to secure a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and it goes without saying that we are pleased that we were able to do that in terms of changes to the Scotland Bill and supporting non-legislative arrangements, and that the Scottish Government have also tabled a legislative consent Motion in support of the Bill. It includes finance and non-finance changes. I believe that these changes meet the tests that my right honourable friend the Secretary of State indicated were important, and by which this Government have set store, for any changes to the Bill package—namely, that they are based on evidence, maintain the cross-party consensus that supports the Bill and will benefit Scotland without detriment to the rest of the United Kingdom. We have gone further than in any other Bill in working between parties in Scotland and across the United Kingdom to build on a cross-party consensus. We have carefully considered and—where appropriate and where the case has been properly made—we have taken on board the views of the Scottish Government and Scottish Parliament. This has allowed an agreement to be reached.
My noble friend asked about the legislative consent Motion, and the position was also reflected in the contribution of my noble friend the Duke of Montrose. It may be useful if I say something about legislative consent Motions in the absence of the noble Lord, Lord Sewel, who I am sure would be able to correct me if I got it wrong. During the passage of the Scotland Bill through your Lordships’ House, the noble Lord, Lord Sewel, said that,
“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/98; col. 791.]
It is a convention; it is not law. The words “not normally” are there. An example occurred earlier this Session when the Scottish Parliament passed a legislative consent Motion objecting to parts of the Welfare Reform Bill. The Scottish Parliament consented to some parts that were within devolved competence and rejected other parts that had implications for Scottish Ministers. The United Kingdom Government—probably one of my noble friends from this Dispatch Box—moved amendments to excise those parts from the Welfare Reform Bill.
Lord Reid of Cardowan
I hesitate to start discussing another referendum when we have spent so long on this one. To try to take the hypothetical situation, Scotland wishes to stay inside the United Kingdom and the Scottish Parliament or people wish to go on to discuss further powers. The negotiations conclude with what is effectively a federal system in the United Kingdom that affects Wales and Northern Ireland as well as Scotland. Then, one option is for the British Parliament to address that. Another might be, hypothetically, to put it to all the peoples in the UK at the same time as a referendum on the constitutional settlement. The important point is that the first decision has to be a simple one: “Do you want to stay inside the union, or be outside it as a separate nation state?”. That is a decision for the Scottish people alone.
Lord Browne of Ladyton
My Lords, I hope that noble Lords will forgive me if, in the interests of attempting to be brief—I have tried this before and it has not worked—I do not make reference to their contributions to the debate in any great detail. I shall also resist the temptation to go down many of the hypothetical routes or cul-de-sacs that have opened up in the course of the debate. I will try to concentrate on the nub of the issue.
I do that principally because, as the noble Lord, Lord Forsyth, indicated in his opening remarks, there is now a great degree of unanimity across the House about where we are. It may have taken us much longer than it should to get here, and that may be because, as the noble Lord, Lord Lang, pointed out, for a time it was not clear what lead the Government were to give on these issues. That is now much clearer. It may also be that we had, to a degree, a hangover from the past in the sense of the Scotland Bill, which I think we were committed to seeing through. Managing all these things together was challenging and difficult. I do not envy the noble and learned Lord and his colleagues in the Scotland Office having to work their way through this. I congratulate them on getting us to where we are to date. There are still challenges ahead and some of those have been identified in this debate. Given that there is a significant degree of unity and unanimity across the Committee on how we should approach this and the challenges that face the Government, it does not seem very fruitful to pick through all the possibilities. Apart from anything else, I know that that would just encourage Members of the Committee to have other ideas. They might want to make interventions and develop other lines.
I listened carefully to the Minister’s contributions this afternoon. I carefully read the Written Statement which his right honourable friend the Secretary of State for Scotland laid today and which was referred to in this Committee. From the degree to which the consultation has been reported either by the noble and learned Lord or in the Ministerial Statement, or from other pieces of information that are now allowed, we seem to be able to come to some conclusions about where the Government ought to be, and we can encourage them to continue on this path in their ongoing discussions with the Scottish Government.
It appears that the Government have comprehensively won the argument about legality. I do not think there is any question about that. I was privileged to be present when the noble and learned Lord spoke at length on this issue at Glasgow University. He was persuasive then, and the consultation document is persuasive. Since then, the Scottish Government have tried to undermine that advice, but unsuccessfully—so much so that the Deputy First Minister, Nicola Sturgeon, went to the same location, ostensibly to deliver a competing lecture on the issue, and ended up avoiding the question altogether. I understand that during her speech on independence and its virtues, she referred to one text-book supporting the view that she and her fellow Ministers held about legality, and that she was intervened upon or questioned by an undergraduate who pointed out to her that his instructions, when he appeared as a student at the university, were that you should never be in a position where you have to quote a text-book to support a legal proposition as that was just bad law, and she was flummoxed by it. If she was beaten by an undergraduate at Glasgow University, perhaps she should give up trying to make the argument.
The Government appear to have won comprehensively the argument on legality, and they also appear to have done so on the argument that we have to have this referendum as soon as practically possible. That is now being supported by growing evidence from those in business and other walks of economic life in Scotland. They suggest that evidence is now emerging that the uncertainty about Scotland’s future is starting to damage investment in Scotland, and consequently jobs and people’s incomes.
The Government appear to have comprehensively won the argument about the question. I do not think there is any doubt that everybody is of the view that it is best to have one clear question—so much so that the Scottish Government were forced to concede that point in their own consultation document, at least as a headline, although they did exactly what my noble friend Lord Reid of Cardowan suggests. They created a consultation with an amorphous group of people in Scotland, to whom they said: “If you persuade us that we need to go further and have another question, we will reluctantly concede to that but our position is that there should be one question”. I will come back to the issue of the question. I am not in a position to judge between the competing questions that have been proposed in our debate this evening, but there is a mechanism for working out the appropriate, fair question. We should at least begin that process now, so that when proposals are made to the Electoral Commission and to others who have to take responsibility for adjudicating to some degree on questions, they will be in a position to do that.
The Government appear to have comprehensively won the argument that the referendum ought to be run if not by the Electoral Commission then at least according to the rules that it sets and for it to be accountable to the Electoral Commission. I would prefer it to be run by the Electoral Commission. If I have not covered all the bases relating to the issues of contention, then somebody should point that out to me, but I think that is it. It appears that the Government laid out their stall, found support across Scotland and won the argument comprehensively, and now are able to say, “Not only do we know that we have won the argument but here is the evidence in the response to the consultation showing we have won it”. That puts the Government in a strong position, but in negotiating terms it puts them in a difficult position because it does not leave them very much room for manoeuvre, but they should not have very much of that on these issues.
I am inclining to the position that I have always been in about legislative consent Motions regarding the Bill. It is that the Scottish Government, inevitably and for political reasons, will have to come to that position too. As they have gone out and tried to sustain arguments in other areas, they have found that increasingly difficult, and their credibility is being undermined. I suspect that in the negotiations, which I hope will not take too long, the Scottish Government will be brought to that position.
Lord Foulkes of Cumnock
I can understand why my noble friend says that using this Bill to discuss or legislate for a referendum might not have seemed appropriate. However, if the amendments had not been put down all those months ago by the noble Lord, Lord Forsyth, and myself, and if the pressure had not been put on the Government, does my noble friend think that we would have had two consultative documents? Does he think that we would have achieved what we have achieved today? Is there not extra advantage in putting down amendments, even though at the end of the day they may have to be withdrawn? Does it not achieve something in the end, and has something not been achieved in relation to this?
Lord Browne of Ladyton
I thank my noble friend for his intervention, although I have no idea what the answer is to the question that he asks. We get many amendments that allow us to explore issues that are of less relevance and importance to the people of Scotland, but I certainly welcome amendments that allow us to explore issues that are important. Through their amendments, my noble friend and the noble Lord, Lord Forsyth, have been utterly diligent on this Bill. They deserve a great degree of credit for the amount of work that they have put into preparing amendments, by which they have created opportunities for some very good debates in Committee. They will be a quarry for the future for many good arguments that can be put forward about the positive nature of the United Kingdom.
To go back to my point, the noble and learned Lord says, “Not this Bill”, and I agree. He says that the preferred option is a Section 30 Order in Council, and I agree. The consultation reveals some very good and compelling arguments in some of the responses about why that is the right way to go. I have adopted some of them. The noble Lord, Lord Forsyth, asked the Minister, “What if there is no Section 30? Where does that leave you?”. The noble and learned Lord answered, “If agreement cannot be reached, we need to consider other options”. I understand why that form of words is the most that he can give your Lordships.
Lord Browne of Ladyton
The noble Lord, Lord Forsyth, asks me why. The simple answer is: because he is a government Minister. The noble Lord should know that, and I am sure that he was adept at giving those sorts of answers himself when he was at the Dispatch Box.
Lord Forsyth of Drumlean
I never really felt much constrained by collective responsibility, as the noble Lord will recall. My noble friend Lord Deben is indicating that he agrees, which is a bit alarming. I thought that the noble Lord was going to say that the Minister could not say this because he did not want to put a gun to the Scottish Government’s head, but it is quite important that it is clearly understood that we are determined to resolve this question and that we have the lines that we have discussed. It is also clearly understood—and I understand where the noble Lord is coming from—that we would much prefer to do this on an agreed basis and for the Scottish Parliament to legislate, but at the end of the day this is going to be done.
Lord Browne of Ladyton
I am sure that, from the point of view of the record and those who read it, it is probably better that the noble Lord says this and is not contradicted from the Dispatch Box, rather than that those words be put into the mouth of a Minister. I do not want to go too far down this road.
My point is that there are precious few options anyway. Without persuading, badgering or compelling the noble and learned Lord to go any further than the words that he wants to use, it is clear to me and, I think, to everyone who has heard this debate that the options are limited. Whatever option the Government choose in future if that set of circumstances arises, there will be an opportunity for your Lordships’ House to have a detailed debate on the way in which the referendum is conducted.
That leaves us with the challenge of how we achieve that debate if it is a Section 30 Order in Council. We have been teasing out from the Government some concessions regarding that with proposals that have been made—one from my noble friend Lord Sewel and some from others—about iterations. However, it would be helpful if the noble and learned Lord indicated, perhaps even repeating what he said before, that something will be done to structure a process that allows the content of the order to be debated at some length here and in the other place before it gets to the point where it is set in stone and has to be either accepted or rejected and cannot be amended. I have so much faith in the noble and learned Lord, from the years that I have known him, because of his reputation before I knew him and from my dealings with him, that I know he will do his best to deliver that. If he gives the House an undertaking that some process will be found, I will accept that and play my part in that process.
Lord Forsyth of Drumlean
This is all very sensible and I have no problem with any of it, but will the noble Lord say a bit about the timetable? How long will this process run for? I would be horrified if we found ourselves coming back here at the end of the year with this matter still not resolved. Does he think that this needs to be done by the Summer Recess? He said earlier that it should not take too long. How long is too long?
Lord Browne of Ladyton
Clearly it could be done by the Summer Recess, and that would be my preference. It would be contradictory to issue a consultation document and argue for the resolution of this issue as soon as reasonably practicable and then put practical blocks on that being done because we cannot get through the process here. We in this Parliament have all had experience of dealing with things in an emergency. In the context of Northern Ireland, for example, in order to maintain momentum in the peace process or to respond to circumstances, we have taken legislation through each House in one day. So if there is a will there is a way, and there ought to be a will because this is the most important question that the people of Scotland have ever been asked—or at least since 1707—and, as we have heard repeatedly from noble Lords, it has serious implications for other parts of the United Kingdom. People have lots of investment in this. The Government should treat this as a priority and find a way forward. We have stuck to a timetable that is associated with the consultation that the Scottish Government have issued, and to respect them we must observe that timetable. Beyond that, though, we need to move as quickly as possible.
With regard to the noble Earl’s three or four amendments, I think we were all interested in the history lesson that we had about the islands of Orkney and Shetland, the observations about Rockall and indeed the argument about a complementary referendum for the United Kingdom after the Scottish people have had their say, if they determine to leave the United Kingdom. Like other attempts to amend the Bill, the complementary referendum falls down on the next question, which is: if the Scottish people decide to leave and the rest of the United Kingdom wants to keep them, how do you keep them in the United Kingdom? Unless you were going to ask that question, why would you hold the complementary referendum? I listened to my noble friend Lord Reid explaining the necessity for dealing with these issues in series. Many of us who have been in this debate consistently had got to that point a while ago. I read in some of the responses to the consultation attempts to explain this by analogy, but the best analogy that I have heard for this is that if you are a member of a club and you choose to leave, that is a decision for you, but if you are a member of a club and you want to change the rules, that is a decision for all the members of the club. That seems to be common sense. The analogy belongs to Sir Malcolm Rifkind, by the way; maybe he got it from someone else, but he said it to me and I thought, “That’s exactly the position”.
Consulting all the other members of the club about changing the rules, if that is what we choose to do in future, will be a complicated and difficult process because there is a lot to be done if we enact the Bill. First of all, we have to work out the exact implications of what we have already devolved to the Scottish Parliament. We have learnt a lot in this Committee about Clause 28, which is quite substantial devolution. We have to persuade those people who are good at making up phrases to describe what they want and what it means—they had their opportunity with Calman to come forward and explain what all that meant, and precious few of them appeared—and then find some mechanism beyond the separate party mechanisms of finding an inclusive, all-party process of measuring whether all this is in the best interests of Scotland and the rest of the United Kingdom. Then perhaps we can decide how we are going to ask for approval from the people of the country for that deal if we come to some recommendation. That, however, is a process for another day; it cannot be done in the context of this Bill.
I shall deal with the noble Earl’s other two amendments about the islands. My suspicion was that what lay behind those amendments was oil, which was perhaps doing a disservice to the noble Earl as I listened to him explaining the history of the islands and his knowledge of the island of Rockall and how it was claimed for the United Kingdom. He was quite candid about the issue towards the end of his remarks. I say to him that if that is the intention of any person in relation the Bill, that is not a game that people on these Benches will play. The challenge that we face is to persuade the people of Scotland to stay in the United Kingdom for good, positive future reasons. If we cannot meet that challenge, I will be no part of telling the voters of Scotland that if they vote for independence the UK will take away their oil. Starting down that line would be utterly counterproductive.
I must caution the noble Earl. Whatever the underlying motivation may be for these amendments—respecting the wishes of the people of the high north with regard to the United Kingdom, or the history of the island of Rockall, which is much more chequered and less specific than it first appeared—now that he has linked this issue to oil, I ask him please not to repeat these arguments in Scotland, as they will damage our ability to keep the union together.
The Earl of Caithness
That was not my argument. I was responding to an intervention by the noble Lord, Lord O’Neill. My argument was not about oil. That was not my intention at all, particularly with regard to the Orkney and Shetland amendments. As for Rockall, I just wanted to know what the legal position is.
Lord Browne of Ladyton
I am glad to hear from the noble Earl that that is the case. The legal position is that the island of Rockall would not be part of the United Kingdom if it were not so close to Scotland. If we break the relationship between Rockall and Scotland, we will lose our basis in international law for claiming it in the first place. We should be very careful about that.
Lord Maclennan of Rogart
My Lords, I would like to say how much I sympathise and agree with the speech of the noble Baroness, Lady Taylor. In the world in which we live, where there is great mobility, residence is not a true test of connection. It is much the easiest way to determine the outcome of a referendum but it is not necessarily going to reflect the views of those who care for Scotland and sense that they belong to it. In my former constituency, Caithness and Sutherland, because there is not a substantial amount of employment in the area, many local people go all over the world to use the skills that they cannot exercise in Scotland. But there is no doubt that they go back when they have completed their jobs, and if they have earned a lot of money, they go back earlier. That is a quite a common occurrence.
I could also talk about my siblings, all of whom feel very strongly that they are Scottish, but for various reasons work in different places. My younger brother works in Glasgow and clearly would be entitled to a vote. My middle brother works all around Britain but returns to Scotland whenever he is free to take a holiday. My sister has worked in Scotland, but she is widowed and now spends part of the time on her own in Greece. However, she still identifies herself strongly with Scotland.
What we are looking for is a referendum that actually reflects the views of those who consider themselves to be Scottish, but it is a difficult issue. I do not think we want just to snap up the easiest decision. I commend the suggestions made by the noble Baroness, Lady Taylor, and my noble friend Lord Selsdon for some clever consideration. If this is left to the Electoral Commission, I hope that it will not simply take the easy way out.
Lord Browne of Ladyton
My Lords, I have already had my say on the issue of different referendums quite extensively and there are only two aspects of our debate on these amendments that I have not expressed a view on, so I shall concentrate my remarks on them. First, I turn to the role of the Electoral Commission. A number of possible roles for the Electoral Commission are reflected in the amendments that have been proposed by noble Lords. It seems to me that the role of the Electoral Commission in relation to referendums is now settled. We had two referendums in 2011 and the Electoral Commission played a role in respect of them both which your Lordships’ House seemed well satisfied with. I have heard no criticism of its role in terms of supervision.
It played a specific role in testing what has become known as the intelligibility of any proposed referendum question in relation to both of the 2011 referendums. I understand that the commission indicated in its response to the Government’s consultation that it does not have the legal power to play that role in relation to the proposed referendum on Scottish independence and it has asked the Government to consider, as indeed have other consultees, using this Bill to give it that power so that it can get on with testing the intelligibility of the proposed questions. Of course, it could take all the questions that have been proposed in amendments and test their intelligibility on Scottish voters, focus groups and others. The commission is willing to do that job and I think that the Government should consider amending the Bill on Report to give it that power.
Otherwise, much as the proposals in the amendments before us are attractive and beguiling, I think that we should ask the Electoral Commission to play exactly the same role it has played in previous referendums, particularly the two which were conducted under legislation passed in this House and in the other place for the referendums held in 2011. There was endless debate about its role and agreement was reached before it set off on its work.
I say this for a very good reason: if we want the process that determines how the referendum will be conducted to be seen as legal, fair and decisive—and we expect now that that will be either in the context of a Section 30 order and the preparation for it, or some other option should the Section 30 order not be consented to—we have to avoid creating special processes or, dare I say, a special franchise for the election. The arguments of those who construct emotional, historical or family reasons for everyone who has an interest in the future of Scotland to be included in a franchise are very interesting. If we were to be all-inclusive we could find a way of doing so, but that would leave us open to the accusation that we are creating a special franchise in order to influence the outcome.
If the referendum is to be seen as legal, fair and decisive we should look to a pre-existing franchise, which is what the consultation did. It referred to the two pre-existing franchises in Scotland—the one for the United Kingdom Parliament and the other for the Scottish Parliament and for Scottish local government—and asked for opinions on which of the two those who responded to the consultation preferred. I am content with either of them but I veer towards the one for the Scottish Parliament. However, we can have that debate in the future when we come to look at the matter in the context of a decision, rather than in the context of a proposal, which is where we are at present.
With all due respect to my noble friend Lady Taylor, I know of the difficulties we had not only in persuading members of the Armed Forces to register but in facilitating that registration so that they could vote. I have great sympathy for people, particularly those in the Armed Forces, who are ordered to be somewhere rather than making the choice and thus being denied the franchise. We ought to look more generally at that issue to see whether we can resolve it and make it easier for members of our Armed Forces to exercise their vote. However, I resist the temptation to do that for this particular exercise for the reason I have articulated.
Lord Wallace of Tankerness
My Lords, this group of amendments has allowed us to look at a number of the practical, important issues which arise in the context of a referendum. As I indicated earlier, it is an opportunity for your Lordships to express views on this. Although we found consensus on a number of issues in the earlier debate, clearly on the issue of franchise there have been different views, to which I shall try to respond.
On a preliminary matter which I am not quite sure related to the independence referendum, the noble Lord, Lord Foulkes, raised a question on the so-called West Lothian commission, which is to look at the implications for the House of Commons of devolution. Its formal remit is to consider how the House of Commons might deal with legislation which affects only part of the United Kingdom following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The noble Lord asked about submitting evidence. I was not aware that it was not receiving evidence—I am not sure whether the noble Lord meant oral evidence or written evidence—but the commission that has been established is independent of government and I would be wary of trying to intervene. The commission should be free to undertake such work as it deems necessary to consider proposals for handling the parliamentary consequences of devolution.
A number of noble Lords—my noble friend Lord Steel and the noble Lords, Lord Watson and Lord Foulkes—raised the question of timing. The United Kingdom Government’s firm view is that the question of Scotland’s constitutional status should be resolved sooner rather than later. The continuing uncertainty about Scotland’s future is damaging to Scotland and until the issue is resolved that uncertainty will remain and, I suspect, grow. In our consultation paper we asked for views on the timing of the referendum and the majority of responses were in favour of holding it sooner than the Scottish Government’s proposal to hold it in the autumn of 2014. Recently, my right honourable friend the Secretary of State set out a timetable for a referendum to be held in September 2013. We believe that that is a practicable timetable and see no need to delay. That view has been expressed by others. CBI Scotland said:
“The timetable should certainly provide for sufficient facts and analysis to be made available to business and the wider public and for the issues involved to be fully considered but, on balance, we believe that the referendum can and should be held sooner than currently planned”.
By “currently planned”, I think it means the preferred date of the Scottish Government. There seems to be a general consensus in your Lordships’ House on this.
The amendment of my noble friend Lord Steel would ensure that any referendum on Scottish independence was administered by the Electoral Commission. A number of colleagues and noble Lords expressed their support for this and, again, I think there was widespread support for it. My noble friend Lord Selkirk of Douglas gave some practical examples of when he believed that the Electoral Commission would have been of considerable benefit. I am sure we are not calling now for a recount of the Lothian regional vote in 1999. History might have been different in so many ways if there had been a different outcome there.
The Government’s view is that it is right that the Electoral Commission should oversee the referendum. It is a well-established body, known to be credible, independent and politically impartial. As the noble Lord, Lord Browne, pointed out, two referendums in 2011 were overseen by the Electoral Commission without criticism. It has the experience and expertise required to oversee this referendum and can play a key role in ensuring that the referendum and its results are seen to be fair and decisive.
Previously, the Scottish Government suggested that they would create what they called a Scottish referendum commission to oversee the referendum, answerable only to the Scottish Parliament. As my noble friend Lord Steel indicated, it is not a particularly satisfactory position when one of the players nominates the referee. The United Kingdom Government believe it is unnecessary to create a new commission—undoubtedly, that would be done at additional cost—when the Electoral Commission is already in place and has demonstrated its capability. We are pleased that the Scottish Government now agree that the Electoral Commission should lead on the oversight arrangements for the referendum and we will continue to engage with the Scottish Government on this. Again, a number of responses to the consultation concurred with that.
Scotland Bill
Lord Browne of Ladyton Excerpts(12 years, 8 months ago)
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Lord Browne of Ladyton
My Lords, I am sure that your Lordships' House is delighted to return to Committee on the Scotland Bill. It seems some time since we discussed these matters—and indeed it is, so we are glad of the opportunity to debate this important piece of constitutional legislation.
The amendments I will move and speak to today are probing in nature. Amendments 44B, 45A and 45B seek to explore the apparent inconsistency between the names and the appointment processes of the Scottish Crown Estate Commissioner and the BBC Trust member for Scotland as they are set out in the Bill. Noble Lords had the benefit of a debate that took place in Committee on 2 February 2012 on Amendment 44A, which was moved by my noble friend Lord Sewel in an attempt to identify the reason for these apparent differences. I shall return to the Hansard report of that debate shortly; I give the Minister notice that I will draw on the words of his colleagues in the debate to support the amendments that I have tabled.
I will say also that I welcome Amendment 45 in the name of the noble Lord, Lord Selkirk of Douglas. I put my name to it as it exactly replicates an amendment tabled in another place by my honourable friend the Member for Rutherglen and Hamilton West, Tom Greatrex, but not debated because of insufficient time.
Amendments 44B and 45A amend the title given in Clause 22 to the new commission role from the “Scottish Crown Estate Commissioner” to the,
“Crown Estate Commissioner for Scotland”.
I recognise that in itself this is a minor change to the Bill, but it raises a wider point about the consistency of the new roles for Scotland that are created by this Bill. The proposal for the change in title is derived directly from the format established in Clause 20 with the,
“BBC Trust member for Scotland”—
not the “Scottish BBC Trust member”. We believe that there should be consistency in the Bill in the naming of the new executive roles in Scotland and we ask the Minister why the decision was taken to use a different configuration for the title of the “Scottish Crown Estate Commissioner”.
The point about inconsistency becomes more important with the issue raised by Amendment 45B. The appointments process for the BBC Trust member for Scotland is that:
“A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment”.
However, the appointments process proposed for the “Scottish Crown Estate Commissioner” is in,
“the recommendation of the Chancellor of the Exchequer”,
in consultation with Scottish Ministers. This is the exact point that my noble friend Lord Sewel raised in the debate on 2 February. I am looking now at the Official Report and the words of the noble Baroness, Lady Rawlings, in seeing off my noble friend’s amendment. She said that,
“broadcasting remains a reserved matter”.—[Official Report, 2/2/12; col. 1785.]
So does the role of the Crown Estate Commission. She went on to say:
“It is our view that this”—
my noble friend’s amendment—
“does not give the Scottish Government sufficient involvement in the appointment process. Securing the agreement of the Scottish Government is the appropriate way of involving them in the appointment process for the BBC Trust member for Scotland. The existing provision gives the Scottish Government an important and appropriate power and the UK Government do not wish to weaken this. I hope that this satisfies the noble Lord, Lord Sewel, and I urge him to withdraw his amendment”.—[Official Report, 2/2/12; col. 1786.]
I draw exactly on that argument and wish to apply it to the appointment of the new Scottish commissioner for the Crown Estates.
Amendment 45B brings the appointments process for the Scottish commissioner closer into line with that of the BBC Trust member by proposing that Scottish Ministers should make the recommendation,
“with the agreement of the Chancellor of the Exchequer”.
These are not issues on which I will seek to test the opinion of the House. I raise them in an effort simply to elicit further information from the Minister about the reasons for these inconsistencies. I am fully prepared to accept that there may be good ones, but I cannot for the life of me at the moment think of what they are, but I wait with bated breath.
I would also like to speak in support of Amendment 45, which replicates a provision tabled by my honourable friend the Member for Rutherglen and Hamilton West to probe the appointments criteria intended for the new role of the Scottish Crown Estate commissioner. At present, there has been no discussion and no detail presented about the sort of qualifications expected of this important role. I look forward to hearing from the noble and learned Lord what conversations the Government have had with the Crown Estate Commission with regard to the proposed new role and the appointments process and qualifications expected. In anticipation of this debate, I had inquiries made of the commissioner’s office as to what qualifications would be expected. With all due respect to the answer I received, it did not make it any clearer to me exactly what would be expected of a commissioner, never mind the one who represented Scotland.
Lord Wallace of Tankerness
My Lords, I shall explain. The BBC Trust is constituted in a very different way and using the expression “the BBC trustee for Scotland” makes sense in that context. The amendment would not affect the appointments process—
Lord Browne of Ladyton
I am grateful to the noble and learned Lord the Advocate-General for Scotland for giving way. When I came into the Chamber of your Lordships’ House today, the Advocate-General for Scotland was answering a Question about Wales.
Lord Wallace of Tankerness
Because I have been asked to answer to your Lordships' House on matters relating to the Wales Office, as indeed I am asked to answer on matters relating to the Scotland Office, although I am not a Scotland Office Minister, and on matters relating to the Attorney-General’s Office as well. It would be unfortunate if it were suggested that the Crown Estate commissioner for Scotland was only for Scotland and did not have responsibilities. To answer the noble Lord’s point, I do not exercise any functions as Advocate-General for England because it does not have an Advocate-General.
Lord Wallace of Tankerness
I am grateful to my noble friend for the shoring up. The very fact that we have had this debate on the wording suggests that if we had proposed something else, I can imagine that he would have been one of those saying, “Of course, you mean that this person can make a contribution only in respect of Scotland and that is not acceptable as that person needs to have a wider remit”. As I indicated to the noble Lady, Lady Saltoun, her suggestion is worthy of further consideration and I shall consider it. If it answers the key point, which is that the person should have knowledge of Scotland and should not be restricted in terms of their qualifications—the broad totality of what is required for the board should be a factor in that person’s appointment, but the person might also have a special responsibility for Scotland or particular interests there—then that might well address the need without being unduly restrictive or indeed giving a misleading description of what that person’s role would be. I thank the noble Lady for that suggestion, to which I will most certainly give consideration.
Because of that wider responsibility, it is important that the appointment of all commissioners should be made by the sponsoring Minister, in this case the Chancellor of the Exchequer. I reassure noble Lords that he will make a recommendation for the appointment of this particular commissioner only after consulting Scottish Ministers and listening carefully to what they say. That appropriately balances the need for both a Scottish interest and a UK-wide perspective on the appointment process.
There is particular concern over why there has been a different process for that appointment from that for the Scottish member of the BBC Trust. The BBC Trust has a different constitution from the Crown Estate. Under its charter, the BBC has obligations to broadcast to all parts of the United Kingdom and to have a member of its trust for each of the nations that make up the United Kingdom. That is very distinct from the position of the Crown Estate, which has no such requirements. Indeed, as I indicated a moment ago, it does not even have to have a presence in any particular part of the United Kingdom.
The appointment of all Crown Estate commissioners is by Her Majesty on the recommendation of the Chancellor, reflecting the UK-wide responsibility of every commissioner. The UK Government will still need to discuss the Scottish appointments of both organisations with Scottish Ministers to ensure that the best people to represent Scottish interests are appointed.
The noble Lord, Lord Browne, asked about the status of the Crown Estate in the Bill. It is certainly the Government’s intention to consider the report of the Scottish Affairs Committee alongside the request that was made by the Scottish Government for further powers in relation to the Crown Estate. The Government believe that the Crown Estate operating on a UK-wide basis offers the best value across the whole of the United Kingdom, but we recognise the role that the Crown Estate plays in local communities and wish to work with it to ensure that it operates most effectively with them.
Particular to that is the coastal communities fund, which was mentioned by my noble friend Lord Selkirk. The Chief Secretary to the Treasury announced the establishment of that fund, which will be financed by the Government through the allocation of funding equivalent to 50 per cent of the revenue from the Crown Estate’s marine activities. It is linked to revenue that is raised by the Crown Estate’s marine activities each year and the funding will be available on a bid basis. The Government will welcome bids from charities, businesses, social enterprises and local organisations. In that way, we can build a stronger link between the activities of the Crown Estate, particularly in coastal communities, including those that are affected by such activities. It is a very positive step, which recognises the role of the Crown Estate.
I have indicated that I will certainly give further consideration to nomenclature and thank the noble Lady for her helpful suggestion. However, I have also indicated that there is a distinction between the constitution of the Crown Estate on the one hand and that of the BBC Trust on another. The latter has a specific requirement to serve specific parts of the United Kingdom, which is why not only the nomenclature but the mode of appointment is different. On that basis, I urge the noble Lord to withdraw his amendment.
Lord Browne of Ladyton
I am very grateful to all noble Lords who have taken part in what proved to be a much more interesting debate than I expected. I made clear in my introductory remarks that these are probing amendments, which implied that I had no intention of dividing the House. Having listened to the argument, I am severely tempted to do so because it may turn out to be the high point of my career in the House of Lords but I will resist the temptation.
I am grateful to the noble Lord, Lord Forsyth of Drumlean, who immediately got the point that underpinned the argument about nomenclature. However, I agree with the noble and learned Lord, Lord Wallace of Tankerness: I always thought that the adjective qualified the “Crown Estate” commissioner, rather than “Crown”, which is exactly what led to the confusion that has been apparent in the debate. I have to say that I am far from totally persuaded that,
“Crown Estate Commissioner for Scotland”,
bears the narrow interpretation or function that the noble and learned Lord has attributed to it. Try as I might to apply that argument consistently to many other titles, at least one of which I have held as a former Secretary of State for Scotland, it did not seem to me to stand the test of that destructive analysis.
However, I am pleased that the noble and learned Lord has, on behalf of the Government, indicated that he is prepared to take away the issue of nomenclature and think about it. There needs to be clarity of language in the politics of Scotland. We may sometimes misinterpret and play with words for the purposes of debate but people in Scotland use these words very carefully. I have learnt in my political career that where there are strong divisions of opinion—for example, in Northern Ireland—vocabulary and phraseology matter to people and are used in particular ways. Therefore, I am grateful to the noble and learned Lord for agreeing to take this issue away.
I am persuaded by the noble and learned Lord’s explanation of the reason for the different phraseology as regards the process of identification, selection and appointment. I was not aware of that difference and had not uncovered it in my researches. I am grateful to all noble Lords, and particularly to the noble Lord, Lord Selkirk of Douglas, for tabling an amendment, the style of which may have been influenced by one of my colleagues. That was helpful as it gave the noble and learned Lord the opportunity to put on the record information about the appointments process which will benefit that process and the openness of government. This has been a worthwhile debate. As usual with this Bill, issues which are apparently comparatively straightforward turn out to be interesting and educational. I beg leave to withdraw the amendment.
Lord Browne of Ladyton
My Lords, I speak only because of my support for a previous amendment that was withdrawn, and I shall explain that position. As the noble Lord, Lord Selkirk of Douglas, explained, the effect of the amendment is to impose upon the Home Secretary an obligation to consult,
“with such persons as he or she considers appropriate”—
I suppose in this case it is “she”—when making regulations under Section 10 of the Misuse of Drugs Act but, peculiarly, only when such regulations apply to Scotland.
At first, I was attracted to the idea of a statutory requirement to consult. I was so attracted that I and my noble and learned friend sought to move a complementary amendment imposing a similar obligation on Scottish Ministers in the exercise of the new powers relating to licensing that they will enjoy when the Bill in enacted. However, after more detailed research, I have come to the conclusion that the imposition of such an obligation is not necessary in either case, which is why I have withdrawn from the Marshalled List the amendment that stood in my name and that of my noble friends.
I will not detain the House further, but the reason for that is because my research has revealed an extensive commitment to consultation by the UK and Scottish Governments and the Scottish Parliament that it would appear has been rigorously observed over a long period. As noble Lords would probably agree, whether voluntarily or by practice that does not require regulation or legislation, good practice can be developed and it is best left that way. That is my view but I shall leave the noble and learned Lord, Lord Wallace, to explain the detail.
Lord Wallace of Tankerness
My Lords, Clause 23 gives Scottish Ministers the power to license Scottish doctors to prescribe three controlled drugs—cocaine, diamorphine and dipipanone—for the treatment of addiction. The Calman commission recommended that responsibility for the licensing of controlled substances used in the treatment of addiction should be devolved to Scottish Ministers as part of their responsibility for health and well-being. The UK Government consider that Scottish Ministers are best placed to consider the particular circumstances in Scotland when deciding which doctors should have the authority to prescribe or administer the three controlled drugs used in the treatment of addiction. That relatively narrow devolution is set out in Clause 23.
I am grateful to my noble friend Lord Selkirk for his interest in this clause. As I have indicated, the Government certainly want to ensure that the Scottish Government have the necessary powers and abilities to tackle drug misuse effectively. That is why we have introduced Clause 23. However, it is perhaps important to indicate that while Scottish Ministers can consider the particular circumstances in Scotland when deciding which doctors based in Scotland should assume the responsibility to prescribe or administer specific drugs, they do so pursuant to regulations made under the Misuse of Drugs Act 1971 by the Secretary of State—the Home Secretary.
My noble friend’s amendment would require the Secretary of State to consult the appropriate persons before such regulations were made. The power to make regulations and the responsibility for the form of those regulations is reserved to the Secretary of State. The Secretary of State is already required by statute to consult the Advisory Council on the Misuse of Drugs before making regulations made under the 1971 Act. As a matter of good practice, the Secretary of State will consult key partners, and often the public, before implementing changes to regulations made under the 1971 Act. The Home Office has recently completed a three-month public consultation on proposed changes to, and the consolidation of, the Misuse of Drugs Regulations 2001. I am afraid that I cannot tell my noble friend Lord Maclennan whether NICE was consulted but, as I can ascertain, that would seem to be one of the bodies that might have been consulted. In the context of the consultation, officials from the department met their counterparts from the Scottish Government to discuss the proposals.
The Bill is devolving the licensing function to Scottish Ministers, and they will consult whoever they think appropriate while exercising that function to license doctors in Scotland. The making of the regulations remains reserved to the United Kingdom and the Home Secretary and I respectfully ask my noble friend to withdraw his amendment. I am sure that this point will have been noted by others, not just in the UK Government but by Ministers in the Scottish Government.
Lord Lang of Monkton
My Lords, I had not intended to take part in this debate because I have not had the opportunity to do the groundwork in order to understand what my noble friend Lord Forsyth’s amendments are all about. The House is greatly in his debt for bringing to our attention the most extraordinary proposal contained in the Bill. Listening to the noble Lord, Lord Steel, I got the impression that he was arguing that we should support the Bill because we know that it is a bad Bill and that the financial provisions will not be adequate for Scottish needs. I am happy to let him intervene and correct that if I am wrong, but if he does so I know that several other people have now argued almost exactly the same point. Personally, I believe that if a Bill is bad you should not pass it, which is why in my Second Reading speech I called for it to be withdrawn. To pass a Bill because you know it is bad seems to be fundamentally wrong.
We know that the Bill will not meet the needs of the Scottish finances because in order to do so it would have to ensure that as the Barnett formula was withdrawn over time, Scottish incomes rose at the same level at least as UK public expenditure has done over the years. Research done by a couple of academics, Professor Hughes Hallett and Professor Scott, discovered that in the eight years to 2008 there was a differential between those two measurements of 0.21 per cent per annum. Over a period of time, Scottish incomes were not rising as fast as UK revenue.
There are countless arguments which could explain why the Bill cannot work and that the finances provided by this 10 per cent tax discretion will be inadequate, but that alone seemed to be a telling one. I noticed that the answer given by the Treasury in previous discussions in another place—I would be grateful if my noble friend Lord Sassoon addressed this matter in his wind-up—was that that had been true over the past eight years but would not be true over the next five years because public expenditure has been heavily reined in. I suspect that incomes in Scotland are also being pretty heavily reined in, particularly because there is a higher preponderance of public servants whose numbers are likely to be reduced and whose incomes are being controlled, and partly because the Scottish economy is in a very much poorer state than the rest of the United Kingdom’s.
One could dilate on a whole load of other reasons why the finances will not work, but the provision in the Bill to create a new tax seems to have been inserted subtly and quietly by the Government because they, too, know that the provision will be inadequate. With the Bill we are not talking about a provision to help Scotland take control of its finances and create a new accountability; in fact it is to demonstrate the complete inadequacy of provisions of this kind for Scottish accountability. That means that it is not a Bill at all but a Trojan horse.
Many noble Lords seem keen to use the failures of the Bill, which they all discern, as a springboard to bring in another Bill to create devo-max, if you like to call it that, more high taxation and other measures. Almost every measure that the Scottish Government might like to control in due course, like pensions responsibility and social welfare, will reveal further inadequacies in the Scottish capacity to provide for them once they are transferred out of the United Kingdom. Noble Lords are creating this springboard towards separation where, under what they call devolution, we shall be independent in Scotland in all but name, and possibly ultimately in name as well. That would create a situation that is not what we are supposed to be debating, so the whole debate is being conducted under a cloud of self-deception in the hope that no one will notice that failure is built into the provisions of the Bill.
My noble friend Lord Forsyth has put his finger on this point extraordinarily effectively, and I am ashamed that I had not noticed it myself when reading the Bill. I ask my noble friend on the Front Bench to address this issue and explain why the provision is there and how he thinks it will be used in future.
Lord Browne of Ladyton
My Lords, I agree with the noble Lord, Lord Lang of Monkton, that we owe a debt of gratitude to both my noble friend and the noble Lord, Lord Forsyth of Drumlean, for the amendments that they have brought forward to this part of the Bill and for the way in which they have put forward the arguments that have opened this debate.
This is the heart of the Bill. It is an important constitutional Bill, as I said in my opening remarks today when the Committee convened. I also said that noble Lords could be forgiven for thinking otherwise, given the management of its passage through the Houses of Parliament. I regret that. To the extent that I have agreed on occasion to days and dates for the management of the Bill, on reflection I now regret doing that because it is such an important constitutional Bill. No Members of the Committee should be mistaken that this is not a Bill of constitutional significance and of potential practical significance for the people of Scotland. However, without the provision that noble Lords seek to delete with their respective amendments, I do not believe that the Bill could be described in these terms at all. What was left of the Bill would be far less significant. Indeed, the Secretary of State for Scotland, Michael Moore, said in his evidence to the Scottish Affairs Select Committee that without this provision, this would be,
“a smaller, less impressive Bill”.
Those are the words that he used and they are recorded not only in the evidence that he has given but quite clearly in volume I of the fourth report of Session 2010-12 of the Commons Scottish Affairs Committee, to which I shall refer later on because it raises a number of other important and serious issues that need to be addressed before we conclude our deliberations on the Bill. He said that it would be a smaller and less impressive Bill, and that view is reflected in the Select Committee’s report.
Lord Browne of Ladyton
I thought my noble friend Lord Maxton said that. I am sorry; it was my noble friend Lord Sewel. If I had had a private conversation with the noble Lord, I might have been able to reveal that beforehand. The noble Lord, Lord Kerr, in part of his contribution that was very helpful, blew that out of the water. States in the United States of America have, within the federal structure, the ability to raise taxes without being sovereign. Across the world, I am sure there are many other examples that I do not know about of devolved Administrations having the power to raise taxes within constitutions that deny them sovereignty. I am certain that I could find them if I had the research facilities available to me.
Lord Forsyth of Drumlean
I will not make a smart-alec point—although I should not say “Smart Alec” in this context in this debate—about other states that can raise taxes. I follow the noble Lord’s argument, which I absolutely respect. However, I respectfully suggest that he needs to distinguish between the ability to raise taxes and the ability to create new taxes. The point that his noble friend and I were making is that this clause gives the Scottish Parliament the power to create completely new taxes. His noble friend argued, as I did, that that is distinct from being able to raise taxes. There are states in the US that can set the sales tax but, as far as I am aware, do not have the freedom to invent completely new taxes. However, I might be wrong about that.
Lord Browne of Ladyton
Someone had to create the sales tax in the first place. I might be wrong but I do not think that in the United States the creation of a sales tax is a federal function that is then devolved to the states.
Lord Browne of Ladyton
May I just answer this point first, if noble Lords will allow me? I am perfectly willing to try to dredge up examples as I stand here, but it would be pointless. I fundamentally disagree, as does the noble Lord, Lord Kerr, that the difference between creating new taxes and raising taxes is as fundamental as the noble Lord, Lord Forsyth, says it is. There is very little meeting of minds between us in this, but there is no meeting of minds even in relation to that.
Lord Sewel
I am grateful to my noble friend for giving way. The comparison to the United States is very ill judged. The United States is a federal system. The United Kingdom is a unitary state with devolved Administrations, which is fundamentally different when you talk about sovereignty.
Lord Browne of Ladyton
We have already had the benefit of a very interesting contribution from my noble friend Lord Morgan, which I will read with care, about the Protean nature of sovereignty. I merely responded to the point that I understood my noble friend Lord Sewel to make—that the defining characteristic of sovereignty relates to taxation. He seems to be conceding the point that it does not. I am sure that if we all read what the noble Lord, Lord Morgan, said this afternoon and perhaps read more extensively what he has probably written on the subject, we will conclude that it does not. I make the point in passing that I do not think taxation is the defining issue of sovereignty.
On the genesis of the power, the noble Lord, Lord Forsyth, asked whether it was recommended by Calman. The true answer to that is that it was not, but the power has its roots in the recommendation of the Calman commission, which concluded:
“The Scottish Parliament should be given a power to legislate with the agreement of the UK Parliament to introduce specified new taxes that apply across Scotland”.
I am not entirely sure whether that statement has a sufficient shock effect for the noble Lord, Lord Forsyth, as I think he indicated that he would be surprised if Calman recommended that. However, there can be no doubt that the Bill goes further than this. As I said, the power was not recommended by Calman but it has its roots in the recommendation of the Calman commission.
The Bill goes further than the recommendation, not only prescribing a much wider power for the creation of new Scottish taxes, which is the concern of the noble Lord, Lord Forsyth, but allowing for the future devolution of existing UK taxes, as Scottish Financial Enterprise and the Scottish Affairs Select Committee, to which I have previously referred, have pointed out. However, there is also no doubt that the breadth of this provision answers a specific call for the further flexible development of the devolution settlement. That is why it is so important to the Bill and of such great significance and cannot be dismissed as a small step. I say that with all due respect to the noble Lord, Lord Steel. It is a very significant step in the devolution settlement. I agree with the noble Lord, Lord Forsyth, that it is a pity that this measure has not been accorded due significance in public debates by those who should have known about it.
The significance of the Calman commission’s recommendations as a whole lies in providing a framework for the continued development of devolution in a legitimate and managed way. I support that. However, I argue that if we agree with the principle of greater financial accountability for the Scottish Government—we on these Benches broadly agree with that; I do not think there is much discontent about that on our Benches—the decision over whether additional taxes should be devolved in the future comes down to a decision about the practical impact of such a devolution for Scotland and for the United Kingdom as a whole. To that extent I agree with the noble Lord, Lord Kerr.
Thus, this is not in my view an issue of constitutional principle. The issue of constitutional principle is whether we agree to the devolution of taxes, which is what the Bill is specifically about. Thereafter, it is a matter of the practical requirements of such a power. I hope that noble Lords who think they disagree with me will bear with me as I think that I will answer the point that is milling round in their heads about why this argument is deficient. It is for this reason that we have tabled Amendment 51B, which would place a duty on the Secretary of State to seek parliamentary approval for draft regulations on the conditions that must be met by any proposed tax for it to be devolved and the specific consultative procedure that must be followed by the Scottish and UK Governments. It has become a habit in this Committee for noble Lords to say that the drafting of measures may be deficient. The drafting of the relevant amendment may indeed be deficient, but this is the best that I could do. If the Committee and the Government are inclined to support it, we can make it much better between now and Report.
I believe that much of the concern expressed by my noble friend Lord Sewel and others about the wide-ranging nature of the power in new Section 80A could be allayed if the Government set out in more specific detail the criteria that will be expected of any new candidate for devolution and a clear process by which those criteria will be applied. I regret that we have got this far without that becoming apparent for the reasons that I am about to go into. The big problem is that Parliament is being asked to approve the allocation of a significant and wide-ranging power to the Executive with practically no information about how this will be used in practice and the safeguards that will exist to constrain it.
Indeed, the Select Committee, to which I have already referred, understood this well. It concluded in its report that it was,
“disappointed that, when pressed, the Secretary of State could not give us examples of the type of tax which could potentially be acceptable … We are also concerned by the absence of any clear process or mechanism by which the criteria will be applied”.
In his evidence, the Secretary of State for Scotland, Michael Moore, set out extensive and broad criteria that he said would need to be applied to any tax for it to overcome the hurdles necessary for devolution.
The Select Committee went on to ask the Government,
“to provide a more thorough and detailed explanation of how this process would work, during the passage of the Bill through this House”.
We should bear in mind that the committee is talking about the other place. I commend the report of the Scottish Affairs Select Committee more generally to noble Lords. I do not know how many of them have had the opportunity to read it, but I commend it. I particularly commend paragraphs 92 to 96, although I do not intend to read them out at this time of night, and the evidence of the Secretary of State, Michael Moore, because it reveals significantly the basis of a mechanism for dealing with this issue.
Noble Lords should not underestimate the importance of the power provided by Clause 28, and I do not think that they will do so after this debate. It provides a real and tangible mechanism for the continued strengthening of the devolution settlement and the devolution of further powers. In many ways it is the antithesis of the further undefined devolution that has been alluded to by the Prime Minister of late and, indeed, by the First Minister in his flirtation with the concept of devo-max, whatever that might be.
Lord Forsyth of Drumlean
I hope that the noble Lord might help me. Is he saying that he thinks this clause is too broad in its scope and that there should be some kind of constraint by way of criteria as to which taxes could be invented? As it stands, a wealth tax, a further tax on inheritance or a roof tax could be implemented, although a poll tax is probably less likely. Is he saying that, speaking for the Opposition, he favours some kind of procedure that would constrain the ambitions of a devolved Administration in this respect, or is he saying that this measure goes to the heart of the whole Bill and that it constitutes devo-max?
Lord Browne of Ladyton
I am not saying that this is devo-max; I am saying that this is the Bill. The Bill is a very significant piece of legislation and a remarkable advance in the potential devolution in Scotland. However, as the noble Lord has pointed out, it is misunderstood and has not been properly explained. Broadly, it is not supported or championed in the observations of those who have brought it to this Parliament. More specifically, it has not been championed by the Prime Minister, who has suggested in fact that it is just a small step and that greater steps can be taken in future.
The people who drafted the Bill and are responsible for it may not have intended to do this, but they have given us the answer to the challenge for the future post the referendum on the issue of separation. They may not know that they have given us the answer but they have. Now they need to build the other part of the mechanism that allows this Parliament—the sovereign Parliament—to play its proper role in deciding what the criteria are in advance of specific proposals of the sort of devolution that can take place. In other ways, they should spell out, as Michael Moore did in his evidence to the Select Committee, the criteria that need to be applied and would need to be met before a tax—either a new one or a part of the United Kingdom’s existing taxation—could be devolved.
We need to amend the Bill to provide that mechanism. I believe that it can be provided by regulation, which is why the amendment has been drafted in the way that it has. At the risk of boring noble Lords, particularly the noble Lord, Lord Forsyth, I do not think it is an issue of principle, once we establish the principle, as we will by passing the Bill, that taxation can be devolved in this way to the Scottish Parliament. It is a mechanism to make sure that that is done properly and in a way in which the various parts of this deal take their proper responsibilities. That is the bit that we are missing because this Parliament is entitled to be confident that any devolved taxes will be used for the benefit of the Scottish people and the union. It is for this reason that we believe the Government have a duty to enshrine conditions to this effect in some form of legislation—regulations would be quite sufficient. This would provide a clear regulatory framework that can be approved by this Parliament and then used flexibly in the future in the context of a changing settlement between the United Kingdom Parliament and the Scottish Parliament —between the United Kingdom and the people of Scotland.
I say to the noble Lord, Lord Sassoon, whom I welcome to our Committee’s deliberations—I do not know how much previous experience he has had of Scottish political matters, but over the next few hours he is in for a crash course—that the Scottish Affairs Select Committee raised these issues in its report on the Bill almost a year ago today. I therefore hope that having had the benefit of a year to consider the matter further—and I am sure the noble Lord has been thinking of nothing else—at the very least he will be able to provide this House with some sort of detailed explanation of the mechanism and criteria to be applied on the use of this power. If he cannot do so, it would be helpful if he provided us with at least some hypothetical examples of taxes that could meet such criteria.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, one thing on which I think we are all agreed is that we are getting to the heart of the Bill. There is a range of views about how significant the changes are in Clause 28, but we all recognise the importance of what we are discussing.
The Government are quite clear that the Bill delivers substantial new powers to the Scottish Parliament—powers that have been included as a result of careful and detailed consideration. I want to focus on what is in the Bill, not on what hypothetically might be in it. The Government have been clear that any consideration of further powers to be devolved is for after a referendum on independence. Let us therefore concentrate for now on what we have in front of us.
I should also say at the outset that as an intruder from outside Scotland and a Briton from elsewhere, as the noble Lord, Lord Browne of Ladyton, suggested, my observation is that to date devolution in Scotland, of which the Bill is part of a continuing process, has been delivered as a result of lengthy discussion, analysis of evidence and cross-party consensus. That was how the settlement was delivered in 1997 and that is how the measures in the Bill have been developed. I am grateful for the noble Lord’s confirmation at the outset that he believes that the tax-raising powers granted in this clause are appropriate.
Lord Sassoon
My Lords, recommendation 3.3 of the Calman report states:
“The Scottish Parliament should be given a power to legislate with the agreement of the UK Parliament to introduce specified new taxes that apply across Scotland”.
In Calman, certain taxes were specified. In this Bill, we are building on that and building in a procedure which is proportionate and would require the agreement of both Parliaments in future to deal with specified taxes—taxes that might be specified in future. I have explained to the Committee what the criteria are. We have an amendment that sought to tease out what they are and I explained them. The critical one relates to the macroeconomic effect. It is entirely right that we take the Calman recommendation and think about how there might be new taxes to be specified in future. It is not some open-ended invitation for the Scottish Parliament to introduce things. There are very clear safeguards, including an appropriate parliamentary procedure in London.
Lord Browne of Ladyton
I intervene with some trepidation in this fashion because I made clear in my remarks in this debate that I seek to support this Bill. However, the noble Lord is making it more difficult for me to support this Bill for a few reasons which I will explain, because I want to pose a significant question to him. First, he said in his introductory remarks—which I passed over but I come back to—that these matters were specifically debated and passed by the other place. He should be careful about deploying that argument, given the paucity of debate there was on any of these provisions in the other place because they were timetabled. Quite large chunks of this Bill were never scrutinised at all.
Secondly, he has repeatedly characterised my amendment—which I will not press this evening—as seeking further and better explanation. It is actually not: it is seeking a part of a construct which translates what he has said on criteria and mechanism—which he says is good and is in the White Paper and the Command Paper, and was in the evidence of the Secretary of State—into regulations that this House and this Parliament can debate and decide upon. That is different.
Thirdly, he encourages us to believe that the construct of co-operation between the Scottish and UK Governments that has been put in place is already starting to address some of these issues. The joint Exchequer committee that he refers to has met once, on 27 September, which was after the Second Reading debate in this House. This was an issue that I raised on Second Reading; his noble and learned friend the Advocate General for Scotland sent me a detailed letter about what happened about these co-operative processes, but they are not functioning at all. They are barely functioning and no significant progress is being made in relation to the co-operative work that is necessary. The Minister shakes his head. Perhaps he will address the two issues that I have raised in this intervention. The first was about criteria and process translated into regulation. The second was a question: what is happening between the United Kingdom Government and the Scottish Government about preparing for the devolution of this power?
Lord Sassoon
I think that the noble Lord made at least three points. The first concerned the degree of scrutiny in another place. It highlights the very valuable, indeed essential, role that this House customarily plays. It is no different with this Bill. Of course, there was committee scrutiny as well as scrutiny in the formal stages of the Bill.
Lord Sassoon
Perhaps I may answer the questions that the noble Lord has already raised.
Lord Browne of Ladyton
I refer to scrutiny and point out, again with some diffidence to the noble Lord, that this is a constitutional Bill. Everything that happened in relation to the Bill happened on the Floor of the other place. The Bill went into Committee there. It was timetabled by the Government and many of these provisions were not debated.
Lord Sassoon
My Lords, I will not stand here and criticise or question the way that another place goes about its business. We are now giving the Bill—and this clause in particular—appropriate scrutiny, and I will take as long as I need to give appropriate answers to the questions that were raised.
Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012
Lord Browne of Ladyton Excerpts(12 years, 9 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the draft order was laid before your Lordships’ House on 10 January 2012. In asking your Lordships to agree that it should be considered, I shall provide the Committee with a brief summary of what the order seeks to achieve.
The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Housing (Scotland) Act 2010, which I shall refer to as the 2010 Act. The Lords Merits Committee has reviewed this order and has not noted it as being of special interest.
The 2010 Act made provision for the regulation of social housing in Scotland, including the establishment of the Scottish Housing Regulator. The 2010 Act repeals Scottish Ministers’ regulation and inspection functions under Part 3 of the Housing (Scotland) Act 2001. In their place, it establishes the Scottish Housing Regulator as an independent body with the objective of safeguarding and promoting the interests of persons who are or who may become homeless, of tenants of social landlords, and of recipients of services provided by social landlords. The Scottish Housing Regulator will operate within a set of priorities agreed with Scottish Ministers but will be accountable to the Scottish Parliament for the efficient use of public resources.
The order will make the Scottish Housing Regulator a part of the Scottish Administration. An important effect of this arrangement is that staff of the agency who presently discharge functions on behalf of Scottish Ministers under the Housing (Scotland) Act 2001 and are currently civil servants will transfer to the Scottish Housing Regulator and continue to be civil servants. The order will ensure that UK legislation is updated to reflect the changes made in the 2010 Act, and will ensure that UK legislation can continue to operate where it interacts with the new devolved legislation. It will also ensure that the Crown Suits (Scotland) Act 1857 does not apply to the Scottish Housing Regulator, with the effect that the Lord Advocate cannot be sued in the place of the Scottish Housing Regulator.
The order demonstrates the Government’s commitment to working with the Scottish Government to make the devolution settlement work. I hope that the Committee will agree that this order is a sensible use of the powers in the Scotland Act to achieve a practical outcome. I commend the order to the Committee and I beg to move.
Lord Browne of Ladyton
My Lords, I thank the noble and learned Lord for his words of introduction. I should say at the outset that I have no issue of principle with, or any objection to, the order before the Committee. I shall take only a few minutes of the Committee’s time to make some points of context and to raise one point for clarification.
As the noble and learned Lord and indeed the Explanatory Memorandum make clear, the order is consequential on the provisions of the Housing (Scotland) Act 2010—unusually, I suppose, for an Act of the Scottish Parliament, which among other things makes provision about the regulation of social housing in Scotland. It is unusual to the extent that it is not normal for regulations to be made here in consequence of an Act of the Scottish Parliament when there are provisions, as the Minister has pointed out, to ensure that where necessary consequential provisions require Acts of this Parliament they will be carried out in the context of the Scotland Act 1998.
In turn, the 2010 Act is just the legislative leg of a journey that started back in October 2007 with the publication of Firm Foundations, the discussion document on the future of housing in Scotland that set out the new SNP Scottish Executive’s proposals for reform and their policy ambitions for Scotland. The SNP entered government with an ambition to increase the rate of new supply of housing in Scotland to 35,000 units per year from the 25,000 per year that they inherited from the previous Scottish Executive, and they had an election pledge to build 6,000 socially rented houses for each year in government. However, they are far from realising their primary target; indeed, today the website of Shelter Scotland, drawing on the Scottish Government’s own statistics, shows that in 2010-11 just over 16,000 new homes were built in Scotland, which, as anyone who knows basic arithmetic will see, is 9,000 per year fewer than what they inherited. As a result of the SNP’s cuts to the affordable housing budget, the social sector will fall by 30 per cent this year, which will choke off growth in social housing. At the same time, the SNP has rejected Labour’s five-point plan for jobs and growth in Scotland that would use the revenue generated from the bank bonus levy to create jobs and fund the construction of 2,500 affordable homes in Scotland. Instead, the nationalists have slashed new build approvals to an unprecedented low and seem to have scrapped their manifesto promise and previous targets.
My second general point is that, to the extent that the order reinstates the independent regulation of social housing in Scotland, we support it. However, the real disappointment of the 2010 Act is the missed opportunity to improve the regulation of the private rental sector in Scotland. A strong and responsible private rental sector is vital to delivering affordable housing, and we are committed to rooting out rogue landlords and placing stronger duties on all landlords to maintain standards in the properties that they rent. Those who have represented constituents in Scotland will know that the conduct of these landlords is the bane of many communities there.
I make all these points because, despite the fact that a whole chapter of Firm Foundations was devoted to the rented sector, since then the SNP Government have focused on restricting the right to buy and restructuring the administrative arrangements, of which the set of regulations before the Committee are but a part. They have avoided completely the problems that arise from the private rental sector in every single community in Scotland, and have substantially failed to address the fundamental problem of the crisis in social housing in Scotland.
Despite all that, the changes that the order makes are uncontroversial from the perspective of these Benches. Primarily the changes ensure that civil servants who at present perform the regulatory functions of the existing Scottish Housing Regulator as an agency of the Scottish Executive continue to hold the status of civil servant when they transfer to the new Scottish Housing Regulator, which will be a body corporate. As the Minister has said, this is done by making the new Scottish Housing Regulator a part of the Scottish Administration.
As your Lordships will realise by now, the serious questions that I have in relation to this whole policy are not properly addressed to the Minister at all; rather, they are addressed to the Scottish Executive. As there is an opportunity to put them on the record, though, I could not resist it. I have one relatively simple question for him regarding the second part of the regulations. Article 3 relates to the application of the Crown Suits (Scotland) Act 1857. As I understand it, as this is a body corporate—an independent body, part of the Scottish Administration but not part of the Executive—if one has to sue it, one will not have the benefit of being able to sue the Lord Advocate. In other words, one will not have the option of suing the Government for any action that one has against them.
I should just like the noble and learned Lord to take the time to ensure that those who may at some stage have to read this record are clear that it is the Government’s expectation that that body will have sufficient resources to meet any liabilities generated in relation to anybody who has cause to sue it. It may not be an issue that he is able to address directly without some form of inspiration, so I should be happy for him to write to me about it.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Browne of Ladyton, for his response and for generally welcoming the principle that underlies the order. As he indicated, it has three functions. One is to ensure that the Scottish Housing Regulator becomes part of the Scottish Administration. That is something that the Scottish Parliament does not have the legislative competence to do—hence the need for this order. Again, the Scottish Parliament does not have the competence to change UK legislation beyond the devolved competence, and an order such as this allows that to happen. We will come back to the point about the disapplication of the Crown Suits (Scotland) Act 1857.
The noble Lord said that he thought it was somewhat unusual for us to be here discussing secondary legislation that is essentially an Act of the Scottish Parliament. I understand that since 2000 there have been 51 orders under Section 104 of the Scotland Act. Indeed, I think that since I took office I have brought to a Committee orders under Section 104 on at least three or four occasions. In spite of some of the furore and some of the headlines that one sees about relationships between the Westminster and Holyrood Governments, there is in fact considerable co-operation between the two Governments over a large area of work. There is certainly also a willingness to give the legislation of the Scottish Parliament full effect in areas which it has not been able to tackle as they have been beyond its legislative competence. In such cases, through co-operation and negotiation it is possible to bring forward orders such as this to give effect to the intention of the Scottish Parliament.
The noble Lord clearly raised matters of policy. Tempted though one may be to follow him down that path, although I have many responsibilities, one is not to answer on behalf of the Scottish Government, for which mercy I should probably be very grateful. However, he has taken the opportunity to highlight important housing policy issues relating to building to meet housing need and the importance of ensuring that the private rented sector is well regulated. From his former experience as a constituency Member, he has obviously identified many cases where proper regulation is needed.
It is also fair to point out that when the consultation took place on the Firm Foundations document there was overwhelming support from the stakeholders who responded that there should be a high degree of support for the principle of independent regulation, which of course is what is sought to be done by the establishment of the Scottish Housing Regulator.
The noble Lord, Lord Browne, also asked a specific question about the Crown Suits (Scotland) Act 1857. As he indicated, as a result of the body becoming a body corporate, it was deemed more appropriate that legal action should be taken against the body itself and not against the Lord Advocate. He asked what would happen. I am more than willing to write to the noble Lord with a fuller answer but the short answer is that the public purse would pick up the costs if, for example, there was a judicial review. Clearly, that would be a matter for budget negotiations. It would be a question of whether the Scottish Housing Regulator had the resources for that and whether the budget would have to be adapted in other ways. However, I shall certainly give greater clarification to the noble Lord on that point. I think that only if the board acted well beyond its competence or unreasonably would the costs would fall upon it, but I shall seek to clarify that point.
I hope that I have responded to the noble Lord’s points and I therefore ask the Committee to agree that it has considered this order.
Scotland Bill
Lord Browne of Ladyton Excerpts(12 years, 9 months ago)
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Lord Sanderson of Bowden
In my case, no doubt everyone will realise that the grandfather will have to pay. That is one part of it. I strongly support what my noble friend Lord Maclennan said when he asked my noble and learned friend on the Front Bench to take this matter away, consider it carefully and come back with an answer that will give us some satisfaction.
The question was asked earlier in this very good debate: do we want this sort of devolution? For my money, I think not—and I certainly know by the amount of disquiet in Scotland over this matter that there is concern that this must be sorted out. It should not be within the power of the present Scottish Government to exercise power in this way, with discrimination writ all over it in big letters. We must think of another way of dealing with this. I realise that legally they are quite correct, but morally they are not. If they want to try to divide the United Kingdom, this is the way to go about it—and frankly I dislike it intensely. It goes to the heart of the argument over whether the United Kingdom should be broken up. I sincerely hope that the two amendments in this group will start a debate in this House and outside it, as my noble friend Lord Maclennan said, and that the Minister will listen carefully and realise the anger that exists up and down the country over this discriminatory measure.
Lord Browne of Ladyton
My Lords, it is a pleasure to follow the noble Lord, who put the nub of the issue facing the Government and the Committee very forcefully and clearly. Once more in this Committee, the noble and learned Lord is caught in a pincer movement between my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Forsyth of Drumlean. Yesterday I was in conversation with a Scottish broadcast journalist, who shall remain nameless. He suggested that they were rapidly becoming the Chuckle Brothers of Scottish politics. No doubt as our deliberations go on the divisions between them will become apparent, although many of us know where they lie in any event.
In raising this issue, my noble friend Lord Foulkes brings to your Lordships' House a matter that is perceived by many in Scotland and, indeed, in this Committee, to be a cause of great unfairness. There can be no doubt about that. There are large numbers of people in Scotland who do not think that this is a fair way in which to treat students from England, Wales and Northern Ireland, and for good reason, because Scottish people pride themselves on the progressive nature of their thinking and on their values. Instinctively, they think—and they are right—that it is unfair that students who come to Scotland from England, Wales or Northern Ireland are treated differently from Scottish students or students from the European Union. The difference is obvious. We have the benefit in our deliberations of the summary by the noble Lord, Lord Sutherland, of the short history of this difference.
It is undoubtedly true that the fact that there are different systems of student support and student fees in different parts of the United Kingdom means that there is discrimination. While it has existed for some time, that discrimination has, by recent decisions of the UK and Scottish Governments, been driven to new heights, and consequently it is now much more apparent than it was. As my noble friend’s amendment and the support for it show, it raises real issues about whether within the United Kingdom we can continue to operate such a discriminatory regime without addressing its inherent unfairness. To that extent, my noble friend is to be congratulated because he focuses his arguments very sharply, and it is clearly right to debate them, as the contributions we have heard thus far make clear.
Whether it is appropriate to have this amendment in this Bill is a matter that the Minister will no doubt address. In one view, having devolved education, including higher education and student support, to the Scottish Parliament, it is a matter for it, and we should live with the consequences, which should be reflected in the political circumstances in which it operates. Whether there is some strong constitutional reason for leaving this to the Scottish Parliament, the amendment proposed by my noble friend raises real practical issues, and the debate that took place in the committee in the Scottish Parliament on the order that set out the specification of these fees encapsulated that. These practical issues will be reflected in the budget for Scotland. I do not think that any noble Lord who has contributed to this debate seeks to set the budget for the Scottish Government or, indeed, the Scottish Parliament but, effectively, that might be what we were doing if we dealt with this issue.
Lord Forsyth of Drumlean
My amendment is different from that of the noble Lord, Lord Foulkes, and we will no doubt come to it, but I have a simple, straightforward question for the noble Lord. Do the Opposition think that as part of the devolution framework, of which they were the midwives or architects, it is right that the Scottish Parliament should be able to exercise any power which results in discrimination against people resident outwith Scotland relative to people in the rest of the EU? It seems that there is an important principle here, of which fees are an illustration.
Lord Browne of Ladyton
I have not been long in your Lordships' House, but I have learnt to be wary of the noble Lord’s simple questions. It is a pretty straightforward question and, when we were sharing responsibility with the people of Scotland for the devolution settlement, it was certainly never envisaged that this discrimination against young people in relation to higher education would be a consequence. I do not think anybody imagined that. In fact, I suspect that had the issue of internal discrimination in the United Kingdom been raised, we would have set our face against it in the original Act.
However, the politics of Scotland have moved on and, as the noble Lord, Lord Sutherland, and my noble friend Lord Foulkes spelt out very clearly, decisions have been made about student fees and the way in which we support higher education, and they have had consequences. One of them has been a significant potential financial disadvantage to Scottish universities, which could have untold detrimental consequences in the longer term for their ability to hold on to the best of their staff or to provide the level of education that they pride themselves on having provided, in some cases over centuries. That was an issue that had to be addressed and those who have looked at the way in which this discrimination has come about and how it was debated in the Scottish Parliament will know what the issues about funding are. It may be possible to address them in other ways but I do not know the detail of that. I am not supporting the way in which they have been addressed here. It is right that we should debate them but I am not entirely certain that this is the right way to do it.
Lord Forsyth of Drumlean
I am most grateful to the noble Lord and I am completely out of my depth because I have never really understood the legal profession. Is he saying that a situation existed where there were rights of audience that were unique to Scots that would not apply in England, but would apply to the French, the Germans and everyone else in Europe? Is that the position? If that is the case, rather like me I am sure he would believe in the single market and, advancing that, would regard this as anomalous.
Lord Browne of Ladyton
The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.
Going back to my noble friend’s amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.
I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O’Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.
Lord Selkirk of Douglas
Would the noble Lord care to bear in mind that the Law Reform (Miscellaneous Provisions) (Scotland) Act removed the discrimination which he claimed with regard to rights of audience for solicitor advocates? I also understand that my noble and learned friend Lord Mackay of Clashfern was instrumental in ensuring that the same thing happened south of the border.
Lord Browne of Ladyton
I am grateful to the noble Lord for that intervention. I am a member of a profession that prides itself on discrimination—at least certainly in its history it did—between those who had rights of audience in the higher courts and those who were historically perfectly capable of making the arguments but were denied. That division was addressed in the way the noble Lord has suggested. I am absolutely certain that the discrimination I was alluding to, which was based more on geography than on someone’s membership of certain branches of the profession, has now been addressed. I am not entirely sure whether it has or not, but the purpose of introducing it was not to take us down a cul-de-sac, but to explore the issue of whether the interest in principle of the noble Lord, Lord Forsyth, was a necessary way of redressing a situation that went beyond student fees.
Lord O'Neill of Clackmannan
Perhaps my noble friend would remember that we do not need to have a solution that covers every form of discrimination. He should not allow the waters to be muddied by the somewhat unhelpful intervention of the noble Lord, Lord Forsyth, by way of a question. It is quite clear that on the educational issue here, this Committee is united. That is the message which should go up the channels of the Labour Party to those who will think about considering another amendment at some stage and whether or not it could be supported. Let us be clear: we just want something on fees and on the discriminatory effect of that issue.
Lord Browne of Ladyton
I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.
Lord Forsyth of Drumlean
Perhaps I can help the noble Lord. It is great to have a rebuke from the Opposition Benches. I was actually thinking that it would be easier for the Opposition to accept a point of principle in respect of devolution rather than accept a restriction on the policy freedom that was implied for the Scottish Parliament. I was just trying to be helpful.
Lord Browne of Ladyton
I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.
As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.
I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.
My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.
Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.
Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.
Lord Browne of Ladyton
My Lords, it is a pleasure to follow the noble Earl, Lord Mar and Kellie, who asked a legitimate question. If there are advocates for the policy, they should be heard in Scotland and the Scottish people should make their decision. Nobody could criticise my noble friend Lord O'Neill of Clackmannan for being a shrinking violet in this regard. He speaks with authority and obvious knowledge about the benefits of nuclear energy and the role that it should play in the mixed energy economy of Great Britain. I accept the noble Earl's challenge and thank my noble friend Lord Sewel for giving me the opportunity to outline, in a couple of minutes, some of the basic points about a single GB energy market in which nuclear energy will play a part.
The existence of a single GB energy market is manifestly to the benefit of Scotland and to the rest of our island. It allows the sharing of resources, risks and rewards. The development of renewable energy capacity in Scotland depends largely on substantial support from that market. As noble Lords said, energy is in the main a reserved matter under the Scotland Act. However, through the exercise of devolved power over the planning system, the current Scottish Government are able to prevent new nuclear plants being built in Scotland. They have said that it is a matter of ideology and that that is what they will do.
As noble Lords heard, Scotland produces a not insignificant proportion of its electricity through the nuclear power stations at Hunterston and Torness. I have noted in my short time in your Lordships' House the development of the concept of declaring an interest. I do not declare this as an interest, but it may be of interest to Members of the House that as a student I was involved, as a McAlpine fusilier, in building the Hunterston B power station. I remember being handsomely rewarded for my work and benefiting from the great advantage that in those days, students did not pay any tax on a substantial part of their income. Therefore, in a small way I contributed to the energy security of our country. Since Hunterston is a nuclear power station, it will be a lasting legacy—although perhaps not a legacy of which everyone would be proud.
At times of peak demand, Scotland, which produces a significant amount of energy, imports electricity generated by nuclear power stations in England. Under a separate Scottish energy policy—God forbid that there should ever be one—that would have to continue, in order to maintain base load power and to prevent the lights going out in Scotland. However, both Hunterston and Torness will come to the end of their operating life in the next few years, as we heard—although one or other may continue, depending on the safety case. The position of the SNP Scottish Government on nuclear energy appears contradictory. They seem happy to import the energy from England, but impose a policy of no nuclear energy in Scotland on ideological grounds. This does not seem to be a point of principle or ideology. It is a political issue in Scotland that works in their favour in the mean time, but will not in the longer term.
The noble and learned Lord the Minister is not here to answer for the Scottish Government, and I do not ask him to. However, perhaps in his closing remarks he will indicate what he understands the position to be in relation to the extension of the life of nuclear plants currently operating in Scotland. I have reason to believe that there will be a positive response from the Scottish Government to the life extension of these stations, for the obvious practical reason that there is no substitute for them in the offing. If that is the case, where does the ideology lie? Where is the point of principle if the life of these plants can be extended but new ones cannot be built?
I am conscious of the time, and I do not want to detain the Committee unnecessarily. I have made the points I want to make. I am grateful to my noble friend Lord Sewel, who has provided the Committee with a good opportunity to remind itself of the one irrefutable fact: the benefit of a single GB energy market. The whole of Britain, including Scotland, benefits from this market. It makes no sense to break it up, and we should continue to try to protect that market.
Scotland Bill
Lord Browne of Ladyton Excerpts(12 years, 9 months ago)
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Lord Browne of Ladyton
My Lords, I speak Amendments 18 and 20 in my name and that of my noble and learned friend. Clause 11 devolves legislative competence to the Scottish Parliament in relation to the regulation of some of the powers on air weapons, as recommended by the Calman commission. The purpose of our amendment is, again, to probe the rationale behind the Government’s selective implementation of the Calman commission recommendations. Amendment 18 seeks to remove the exception that the Government make to the devolution of powers to license air weapons in the case of those weapons designated as “specially dangerous” by the Secretary of State.
The Minister will forgive any deficiencies in the amendment itself. It seeks to improve a definition in an area of law that is fraught with confusion and in serious need of rationalisation. It is a continuing disappointment that the Government—and I think that the previous Government were in the same position about this—have not yet heeded the calls from the Home Affairs Select Committee, among others, on firearms control that call on the Government to rationalise the regulation of firearms in one single piece of legislation. The legislation is difficult to understand as it is presently enacted. None the less, I hope that the amendment will give the House the opportunity to debate the issue of the devolution of air weapons regulation in detail and to tease out from the Government the rationale behind the continued reservation of certain powers for the licensing of these weapons to the Secretary of State rather than devolving them.
Grouped with our amendments is Amendment 19 in the name of the noble Earl, Lord Shrewsbury, who generously shared with me the argument and some of the points that he intends to make in support of it. I do not intend to steal his thunder, but in general terms they test and explore the practicalities of two separate regulatory regimes on this one island. His points are germane to the workability of what is proposed. I look forward to his contribution and, more eagerly, to the Minister’s responses to his contribution and the questions that he will pose.
It will be known to many noble Lords that air weapons are an issue of particular importance to the people of Scotland. There have been too many cases in recent years when misuse has led to terrible consequences, such as the tragedy of two year-old Andrew Morton’s death. The people of Scotland demand action from their politicians and we on this side of the House wholeheartedly support the devolution of powers to Scotland to regulate or, if the Scottish people choose to do so, to ban air weapons, but that is a matter for the Scottish Parliament. We are not blind to the practical consequences of such a change.
We are concerned, however, that the Bill as it stands does not go far enough in granting Scotland the powers that it needs if there is to be a change, and does not faithfully reflect the Calman commission’s recommendations, despite noting from the Calman commission that,
“there are advantages in having common offences relating to the misuse of firearms across Great Britain and that there could be serious disadvantages in having different, unco-ordinated policies”—
the important word there is “unco-ordinated”. The commission advised that,
“if there is appetite to deal with air weapons differently in Scotland than south of the border then the advantages of enabling the Scottish Parliament to do so outweigh the disadvantages”,
and therefore recommended that the regulation of airguns should be devolved to the Scottish Parliament. The commission explicitly rejected the Scottish National Party’s call for the devolution of firearms regulation in its totality, something that we on this side of the House do not support, on the basis that Calman found no evidence that Scotland had a particularly acute problem that demanded distinct legislation as opposed to any other part of Great Britain. However, the commission concluded that there was sufficient reason to discriminate between firearms because of a genuine appetite on the part of Scotland to deal differently with these particular air weapons, and this clear demand outweighed the possible disadvantages of a differentiated system.
It is important that the reason the commission did not recommend the devolution of legislative competence over all firearms was not the cross-border problems of an unco-ordinated policy but because of a lack of perceived necessity for the differentiated policy, and that meant that the balance fell in favour of co-ordination. When the commission found evidence for a real need for devolution, it found in favour of devolution with no exception, despite the fact that some air weapons are clearly as dangerous as other firearms.
However, the Government have decided to exempt those “specially dangerous” air weapons that are subject to special licensing or prohibition by the Secretary of State from devolution. This is clearly contrary to the commission’s recommendations and, in my submission, will only add to the confusion and fragmentation of an already confused and fragmented area of the law—firearms regulation across the UK. Noble Lords will note that this amendment does not remove the exception to air weapons which are prohibited under Section 5 of the Firearms Act 1968, and Section 1(4) of the Firearms (Amendment) Act 1988. However, I would still like to probe the Government’s logic here; to me it seems unclear.
The devolution of legislative competence over air weapons currently banned in the UK would, indeed, create a differentiated system of regulation across the UK, with all the associated cross-border problems. However, the Government must anticipate that the devolution of competence over most air weapons, which is what they propose, is still likely to produce such a result; the only difference being that the prohibition or the regulation of the other air weapons will exist in Scotland and not in the rest of the United Kingdom.
I regret that when this clause was debated in another place, the focus of the debate was largely on the Scottish nationalist obsession with the devolution of powers over all firearms and this issue, although presented to the other place, was not debated or properly answered. I hope that today we will have an opportunity to focus debate on the specific settlement proposed in the Bill and to ensure that the Scottish Parliament is granted the powers it needs properly to address the issue of air weapons in Scotland.
The Earl of Shrewsbury
My Lords, with the leave of the House, I wish to speak to my Amendment 19. I declare an interest as honorary president of the Gun Trade Association.
The format of this amendment is not without recent persuasive precedent. The Firearms (Electronic Communications) Order 2011 was made under the authority of Section 8 of the Electronic Communications Act 2000 and provides for the Secretary of State to direct forms of electronic communication that may be used for sending statutory notices under the various firearms Acts. Before giving any such direction, the Secretary of State is required to consult Scottish Ministers, the Associations of Chief Police Officers in Scotland and in England and Wales and “such other persons” as he “feels should be consulted”—a term which the Home Office suggests in its circular must include the main shooting organisations as well.
Clause 11 of the Bill contains no indication of the type of changes to the law concerning low-powered air guns that are envisaged by those who have sought to have controls devolved to the Scottish Government. However, Scottish Government press releases issued under the authority of the present Secretary for Justice have indicated that a form of licensing of air guns has been, and is, under active consideration. The amendment seeks to ensure that full and detailed consideration is given to all the ramifications of any form of legislation by requiring a consultation process that includes a cost-benefit analysis.
The imposition of restrictive legislation on air guns will have cross-border implications on those who travel with firearms to Scotland from other parts of the United Kingdom, from within Europe and from the wider world; or from Scotland to such places. Air guns are generally excluded from most aspects of firearms legislation and are outside the definition of “firearm” for the purposes of the European directive, Article 1(1). Only where the control of firearms has had a particularly troubled history in countries such as Ireland and Northern Ireland are air guns treated in the same way as firearms.
As we all know, the border between Scotland and England is entirely open. Different legislation on each side of an unpoliced border will create major problems in terms of movement of individuals and of air guns themselves. For the trade there will be serious issues in respect of mail order and face-to-face transfers in either direction. Direct sales, either by way of trade or between individuals, will be completely unpoliceable. It seems right that police on both sides of the border should be consulted about potential policing problems, and that the trade on both sides of the border should be consulted about the effects on its businesses.
The burden on the police of a licensing system for air guns will be enormous. Initially, some 500,000 air gun owners in Scotland may be affected but it seems probable that a proportion of owners will not take up the licensing scheme and will either dispose of their air guns or retain them without a licence. There is little chance of the greater proportion of non-compliance being discovered, since there is no record of those who now own air guns. Your Lordships may well be aware that a considerable percentage of air weapons carry no serial numbers, in particular the less expensive and therefore far more common weapons, and are therefore untraceable.
The initial take-up of licensing may be by 500,000 or fewer people. Existing holders of firearm and shotgun certificates total some 67,000 individuals. If a system akin to that for licensing firearms and shotguns were to be imposed on air guns, the burden on the police firearms licensing departments would increase eightfold, at a time when firearms licensing departments are cutting staff and slippage in turnaround of applications is becoming far worse.
According to a 2009 survey by ACPO in England and Wales, the grant of a firearm or shotgun certificate involves six or seven hours of police time. That may be overstated, but if a licence for an air gun involved only three hours of police time, more than 1.5 million additional hours would be required in the first year. Perhaps exemptions would be made for existing firearm and shotgun certificate holders, or perhaps further savings could be made by way of various exemptions; but even then the burden on the police would be more than 1 million man-hours. This has to be paid for.
It may be argued that the cost of all this could be recovered from the air gun owner, but Treasury guidelines demand that fees reflect only the actual cost of issuing the licence or certificate in question, and these recover only a small part of the cost to the firearms licensing department. They do not include enforcement measures or costs not directly linked to the grant of the individual licence.
Police in other parts of the United Kingdom would be involved in costs—probably large costs—related to the enforcement of any new laws in Scotland. An air gun sent by a dealer in England to a customer in Scotland might well involve a contravention of Scottish but not English law. However, inquiries would have to be made by English police about the actions of the English dealer.
Sporting shooting is an important factor in the economics of Scotland. According to VisitScotland, those living outside Scotland who visit Scotland for sporting shooting generate some £50 million per year for the Scottish economy. It is not unusual for the visitor to take an air gun with him for use against pests or in recreation. Such people will either continue to do so in ignorance of a new law, or they may be deterred from visiting at all if bureaucratic controls are in place. Major international target-shooting events are staged in various parts of the United Kingdom. Large numbers of competitors travel from Scotland to compete in events at world-famous venues such as Bisley, while the major Scottish meetings attract members from England and further afield. Shooters are likely to be inhibited from travelling to such events by bureaucratic controls, and many will simply stay away. Organisations representing field and target shooters on both sides of the border should be consulted.
Finally, while Clause 11 relates only to the potential for laws to license or otherwise restrict air guns in Scotland, such laws will impact on the rest of the United Kingdom, and it is right that proper consultation with those inside and outside Scotland should be required, so that those who may be affected at least have a statutory right to have their views heard.
Lord Wallace of Tankerness
The noble Lord, Lord Browne, quoted other parts of the report, which said that, notwithstanding that, there would be cases where devolution would be appropriate. Indeed, the commission identified particularly Scottish circumstances as to why air weapons should be devolved. That was the commission’s recommendation, which not only the present Government accept and are trying to implement through the Bill; the previous Government also agreed to the principle of devolving the power to regulate air weapons to the Scottish Parliament in the White Paper that they published in response to the Calman commission.
I am trying to make the point that some categories of air weapons are currently subject to a licensing regime because of their power. We still seek to maintain that reservation for that category, subject to the Secretary of State’s powers under Section 53 of the Firearms Act.
Lord Browne of Ladyton
I thank the noble and learned Lord for giving way. Indeed, I am grateful to the noble Lord, Lord Forsyth, who, in one simple question, encapsulated what it probably took me seven minutes to say. The purpose of this devolution is to respond to an obvious desire in Scotland for the greater regulation of air weapons generally. Regulating them more means licensing, at the very minimum. It is inconceivable that if the Scottish Parliament is given this power, it will not make all air weapons subject to a licensing regime. The distinction, therefore, between an air weapon of lesser capacity, force or power not being regulated and one of more power being regulated disappears. There will be two licensing regimes for air weapons when, in my submission, there should be one. If there is to be a distinction between, or a subdivision in, the licensing regimes for air weapons—one at the UK level and one at the Scottish level—will that not just add to the confusion rather than making matters simpler?
Lord Wallace of Tankerness
I see the point that the noble Lord is making but I do not necessarily follow him down that route. For a start, this is the devolution of a power. It is a prescription as to how that power might or should be used and, even if it is a licensing scheme, it may well be very different. We seem to be getting weapons that are not subject to the kind of strict licensing regime that we have at the moment. Therefore, I think that a distinction can be made, which we wish to keep, for weapons of greater power so that we can maintain consistency across the United Kingdom. As I have already quoted from Calman—it might even be the passage that the noble Lord read out—there seem to be advantages in maintaining that consistency.
Lord Browne of Ladyton
My Lords, I am grateful to all noble Lords who took part in what developed into a debate that was much more interesting than my introduction. From my experience in your Lordships' House, that did not surprise me. I am grateful to the noble Lord, Lord Forsyth, who in one of his early interventions brought a degree of clarity that I had not managed to achieve to a point I had tried to make. I disagreed with some of his other interventions, but we will have an opportunity to debate the genesis and value of Calman at a later stage and in proper circumstances. However, in his most recent intervention he may well have pointed out where the problem lies in relation to a coherent approach to this. It is a matter of regret that we do not have a Home Office Minister at the Dispatch Box to respond to the debate.
The story that lies behind this is that repeated incidents in Scotland of the nature of the tragic death that I referred to generated a desire to regulate air weapons. The noble Viscount, Lord Slim, pointed out very wisely from his informed background that air weapons are all potentially lethal. There was a discussion between those who represented the Scots, including Members of Parliament and the Home Office, which moved toward the possibility of regulation on a UK level, but then stopped. The frustration generated by the Home Office's unwillingness to proceed exacerbated the discontent in Scotland. An indication that something would be done was snatched away. The key difference is between weapons that are regulated and those that are not, because those that are not have the potential to be lethal and have been proven to be lethal in a number of cases. This has caused the Scottish people to say, “We want our Parliament to have the power to do something about unregulated weapons and to regulate them”. That is the set of circumstances to which Calman responded. Far from having to look around for powers to devolve, the significant cross-party lobby for the regulation of air weapons in Scotland was waiting for the opportunity of Calman or something similar to articulate its arguments.
Lord Forsyth of Drumlean
I apologise if I gave the impression that the regulation of air weapons was not an issue. When I said that they were looking around for powers, I meant that they were looking around for powers to devolve. There certainly was an issue. Another example, which we will come to later, is giving the Scottish Parliament the power to decide speed limits. We have ended up with a Bill that gives the Scottish Parliament the power to regulate the speed of motor cars but not of HGV lorries. That is absurd. The distinction between different categories of air weapons is a similar example.
Lord Browne of Ladyton
I am grateful to the noble Lord for his intervention. I understood the rhetorical point that he made. In relation to the issue that we are debating, there is a very strong desire in Scotland to have air weapons regulated. The Scottish people would have been happy if there had been a prospect of a system of regulation that would have been applied to the whole of the United Kingdom. In the absence of that prospect, the Scottish people say—and I agree with them—that if the power can be given to the Scottish Parliament, this should at least have the opportunity to regulate air weapons and to deal in some way with the obvious menace of their misuse. I am grateful to the noble Lord for allowing me to make that point in this context. Otherwise, what may appear to some to be a trivial piece of devolution, or to others to be something that is delivering unnecessary complications, will not be seen in its proper context.
I am grateful to the noble and learned Lord for the care he took in responding to my probing amendment on these matters. Characteristically, he engaged with the issue and articulated what I thought was the Government's argument for this exception to the devolution of responsibility for all air weapons. He will appreciate that I need to study his response, because I am not familiar with this area of law and I know how complicated it is. I incline to the view that if the distinction is caused by the existing licensing regime for some weapons—when I anticipate that there will be a licensing regime for all weapons—I may not be satisfied and may have to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
Lord Browne of Ladyton
My Lords, I approach the Dispatch Box to probe again the distinctions between what Calman recommended and what the Government have chosen to do. On this occasion, the Government have gone beyond the Calman recommendations.
Clause 12 has the backing of respected bodies, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland. During the many evidence sessions throughout the Calman process, it became clear that the insolvency profession in Scotland sought the harmonisation of insolvency law on both sides of the border. However, Clause 12 goes beyond the original Calman recommendations. Your Lordships will recall that Calman recommended that the UK Insolvency Service be responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border.
Calman went on to recommend that this could be achieved by UK legislation to which the Scottish Parliament would consent by a legislative consent Motion under the Sewel convention—I think those are the exact words of the recommendation. I understand that technically—a word I do not like to use—this is exactly what the Government have done in the sense that this Bill is UK legislation that has to be consented to by a legislative consent Motion by the Scottish Parliament. However, that appears to be a pedantic argument, and I do not expect that the noble and learned Lord will resort to it.
The clause does not appear to be in keeping with the spirit of the original Calman recommendations. Does the Minister believe that this is the correct implementation of Calman, or does he agree that it goes beyond Calman? It goes beyond the reservation of the power for the Insolvency Service to lay down the rules to be applied by insolvency practitioners on both sides of the border and reserves the whole body of law on corporate insolvency. If the Minister agrees that this goes beyond the Calman recommendation, will he outline the reasons for so doing?
The report of the Scotland Bill Committee of the Scottish Parliament, which was overwhelmingly approved by the earlier legislative consent Motion of the Scottish Parliament—as I have said before, it was supported by Alex Salmond—approved Clause 12, subject to provisions being drafted that will secure capacity for devolved legislation to effect the winding-up of registered social landlords. Does the Minister believe that this condition has been satisfactorily met? If so, can he explain why that is the case; and, if not, can he justify to this House why he has decided to pursue an alternative path to that sought by the Scotland Bill Committee?
During the debate on this clause in the other place, the Scottish nationalists asserted that there were concerns about the process of amending existing provisions on winding up registered social landlords. One concern is that future amendments, they say, would be easier to come by if this policy area were devolved rather than reserved. As is often the case with Scottish nationalists, this was asserted as though it were fact, and, as is also often the case with them, the assertion was not backed up by any evidence to suggest that that would be the case. No examples were given to support this theory, for that is all it is. It appears simply to be a continuation of their argument that everything would be better if it were devolved to the Scottish Parliament. The Minister in the other place, the Parliamentary Under-Secretary of State for Scotland, argued that this is not a cause for real concern, and I support that position.
However, the Minister went on to say that there was a problem and that there were ongoing discussions between the Insolvency Service and the Scottish Federation of Housing Associations to discuss the latter’s specific concerns about this clause. Perhaps the Minister will update the House on the progress, or better still the outcome, of those discussions to satisfy us that the issue has been resolved. I am certainly not the only Member of this House to have received a briefing note from the Scottish Federation of Housing Associations that articulated continuing concern about the impact of this clause. I would not like to think that this is a sign that discussions were not successful, but if they were not successful, the Minister should explain to the Committee what is going on.
There is an identified issue here about circumstances that may arise in the winding-up or potential insolvency of a particular vehicle for delivering important housing in Scotland or a housing association. It is recognised that this needs to be resolved by discussion or perhaps by a change in regulation. Before we agree to this clause standing part of the Bill as drafted, your Lordships' House is entitled to know whether that issue has been addressed and satisfactorily resolved, or at least to have the confidence that a resolution is on its way.
Lord Wallace of Tankerness
I thank the noble Lord, Lord Browne, for giving us an opportunity to look at this clause. Schedule 2 is also relevant to insolvency. As he indicated, there was a recommendation from the Calman commission that the UK Insolvency Service should be made responsible for laying down rules to be applied by insolvency practitioners on both sides of the border. The noble Lord asked a very pertinent question about why the Bill goes beyond the specific terms of the Calman commission’s recommendation.
The commission was persuaded by evidence from stakeholders, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland, that a consistent approach to winding up would bring significant benefits to creditors, companies, insolvency practitioners and others dealing with insolvent companies in both England and Wales and Scotland. The Institute of Chartered Accountants of Scotland said:
“We do not see any advantage in encouraging divergence of practice when businesses across the UK operate in a similar environment”,
and,
“This will promote a more stable environment for corporate recovery and turnaround and be more comprehensible for creditors and potential investors”
Certainly in the present environment, that is an important consideration. Many winding-ups involve groups of companies that operate on both sides of the border. We believe that it will be more efficient in time and money if the same winding-up rules, other than where Scottish common law requires something else, are applied to each insolvent company in the group.
These amendments will make reorganisations more efficient and increase returns to creditors and shareholders. Group reorganisations may involve subsidiaries being wound up, and a common approach to winding-up rules should help to reduce the cost and complexity of group restructurings whose constituent companies operate both in Scotland and in England and Wales.
Indeed, in its evidence to the Calman commission, the Institute of Chartered Accountants of Scotland, which regulates most of the insolvency office-holders working in Scotland, highlighted the benefit of consistent rules in promoting a more stable environment for corporate recovery and turnaround. Further, the Law Society of Scotland reported in its evidence to the commission that, because of the increased number of insolvencies of groups of companies, practitioners have for a number of years been having difficulties where parts of the group are subject to the rules for England and Wales and parts to the Scottish rules. The Calman commission was persuaded that there should be a consistent approach to winding-up rules, and the UK Government agree with that position.
The commission recognised that its first option for implementing its recommendation that the UK Insolvency Service, with appropriate input from the relevant departments of the Scottish Government, should be made responsible for laying down insolvency rules for England and Wales and Scotland might not be achievable for technical reasons. It therefore acknowledged that the devolution settlement might need to be amended to secure the desired effect.
Lord Browne of Ladyton
My Lords, I am very grateful to the noble and learned Lord for his comprehensive response. I had hoped that he would lay out clearly why the Government have chosen to go beyond the Calman recommendations, which he has done, and I found his arguments persuasive.
Scotland Bill
Lord Browne of Ladyton Excerpts(12 years, 10 months ago)
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Lord Wallace of Tankerness
No, my Lords, that would not be possible, as eligibility matters will remain reserved. I hope that on the basis of what I have indicated—
Lord Browne of Ladyton
I am grateful to the noble and learned Lord for giving way. From the way in which his voice changed, I had the sense that he was moving towards a peroration.
I am beginning more clearly to understand this division. I understand the difference between the framework within which the elections are conducted, as opposed to the administration; and I understand the difference that I imposed on this debate between the electoral system and conduct. I should be grateful if the Minister would go through the list that I gave—at some stage, if not now. Perhaps he may write to tell me where at least two of those matters lie. One of them may be straightforward and we will come to an amendment on it shortly, one hopes—the procedure and framework for filling regional MSP vacancies—but where does the abandonment of a constituency poll or notice of it to be countermanded lie? Those two matters concern me and I will ignore the other two. I should just like a reassurance that beyond the list that I gave there are no matters other than those the noble and learned Lord has identified.
Lord Wallace of Tankerness
My Lords, I will certainly write to confirm, but I can seek to indicate that the rules regarding the regional list will remain reserved to the Secretary of State. On the abandonment of a poll, my understanding is that the issue in question is not so much with the abandonment of the poll itself but where that leads to a difference in the calculation of the regional vote. It is that calculation that would be affected if there was an abandonment of a poll in a particular constituency. I am seeing nods that I have actually got it right. That is the substance of this reservation. I will confirm that, but I hope that that has been a sufficient explanation to the noble Lord.
Lord Browne of Ladyton
My Lords, I shall speak to the amendment in this group standing in my name and that of my noble and learned friend Lord Boyd of Duncansby. I also have something to say about the amendments tabled by my noble friend Lord Foulkes.
My amendment would grant the Scottish Parliament the power to ensure that its elections are never again held on the same day as another national poll. The amendment is nearly identical to one tabled by my honourable friend Tom Greatrex, the Member for Rutherglen and Hamilton West, at the Public Bill Committee stage in the House of Commons. However, I regret that during that debate the Parliamentary Under-Secretary of State for Scotland and many others were diverted by the then controversy of the imminent application and interaction of the Fixed-term Parliaments Act. As far as I can see, although my honourable friend spoke to the amendment, it was never properly answered. Therefore, it has been repeated here in order to get an answer. If the answer allows for the avoidance of a coincidence of polls such as we saw in 2007, I will be greatly satisfied.
As noble Lords will know, the coincidence of local government and Scottish Parliament elections on 3 May 2007—and other factors—led to the rejection of 146,099 Scottish Parliament ballot papers and 38,362 local election ballot papers. It was the nadir of electoral administration in the United Kingdom, and everybody has focused on ensuring that it never happens again. It is the firm belief of this side of the House that never again should the people of Scotland be subjected to the confusion and chaos of two polls on the same day. We strongly opposed the coalition Government's decision to impose a referendum on the alternative vote system on the same day as the Holyrood election. The Minister said that it passed off without incident, but we will never know what effect that coincidence had on the way in which people behaved. There was no repeat of the dreadful circumstances of 2007, but I argue in my amendment that we should try to avoid repeating the coincidence if at all possible.
I am conscious that Clause 2 relates to the administration of the combination of polls that would be required should there be such a coincidence. I have nothing to say about that; I agree with it. We have been combining polls in those circumstances probably since 1978 or before. It makes good sense. Therefore, I am happy to let Clause 2 pass. What I am concerned about is seeking to use the device of the 1998 Act to avoid this. If the clause is properly drafted—and I hope that it is—it would grant the Scottish Parliament the flexibility to move its poll in the event of a coincidence. It would mean that there should never be any future coincidence of polls unless the Scottish Parliament decided otherwise. Most people believe that probably we cannot have that coincidence. However, despite the Fixed-term Parliaments Act and the devices of extending the period of a Parliament, in particular of the Scottish Parliament, that the coalition Government have agreed to, there is the possibility of an extraordinary election—some noble Lords on this side of the House would quite like next to see ordinary election, despite the Fixed-term Parliaments Act—coinciding with a date fixed for a Scottish Parliament election.
I got myself into some difficulties with the arithmetic of trying to work out whether coincidence is at all possible with the European Parliament elections as a consequence of the movement of the Scottish Parliament elections. It may just be possible, which is why the amendment anticipates the coincidence. I may be wrong about that, but we could in future have to use the device of extending the Scottish Parliament’s time again to avoid coincidence. That may throw up the possibility of a European Parliament coincidence. We believe this is the best way to do this. It should be a matter for the Scottish Parliament. In response to Gould, the Scottish Parliament committed to decoupling Scottish Parliamentary and local government elections, which was the real mischief that caused the problem in 2007. Similar provisions have been made to try to ensure that Scottish parliamentary and UK general elections do not follow the same cycle, as I have already said. The Calman commission recommended that, for reasons of practicality and principle, Scottish parliamentary elections should be administered at the level closest to those affected by them. We have already debated that to a degree. In a sense, it was the electorate of the Scottish Parliament who were the victims of the catastrophe that was the 2007 election. We believe that as a mature Parliament the Scottish Parliament should have the responsibility to decide whether it wants to allow this coincidence to persist, should it happen because of the rhythm of parliamentary elections or the possibility of an extraordinary election. This amendment is devised to achieve that possibility.
I turn to the amendments tabled by my noble friend Lord Foulkes of Cumnock. I congratulate my noble friend and, by extension, the noble Lord, Lord Steel of Aikwood. Each of them identified lacunae in the framework for Scottish elections, which is a phrase that I will now use, to the Scottish Parliament that could be addressed. I was not aware that there is no process for filling a vacancy for an independent member in the regional part of the system. That should not be allowed to continue. I understand that my noble friend’s approach to this is to devise a method that is very similar to the method adopted for electing regional members. It is very close to that, if not precisely the same. I urge the Minister to take this away to see whether, at some stage during the passage of this Bill, we can deal with this. His advisers are, in addition, capable of dealing with a lacuna that has been identified by the noble Lord, Lord Steel of Aikwood. I suggest that the Minister considers that too. It would genuinely be in the spirit of the appropriate approach to this legislation. I am sorry that the Calman commission did not have its attention drawn to this problem because I am sure that if it had the noble and learned Lord in another guise may well have been party to a recommendation to resolve it.
I turn to Amendment 16 which the noble Lord, Lord Steel, identifies as being the more substantial amendment. My noble friend Lord Foulkes of Cumnock is a man of extraordinary experience, not just in your Lordships' House but in the House of Commons and in the Scottish Parliament. Some of us were privileged to be at the celebration of his 70th birthday in the Gorgie Suite in his beloved Tynecastle Park on Saturday night. He knows where my allegiances lie, and I am delighted that there is at least one reason for celebration in the Gorgie Suite in Tynecastle this year because there will be precious few others. For those noble Lords who do not know what I am referring to, in an act of extraordinary generosity his family invited almost 200 people from all over the world to join the celebration of his 70th birthday. The fact that almost nobody refused the invitation no matter how far away they came from or, it seemed to me, failed to turn up is a measure of the high esteem in which he is held. I refer to this because the speeches that night celebrated a lifetime of service to politics in Scotland and to public life. It is from that background that he speaks when he rises in your Lordships' House, and he ought to be listened to carefully. However—
Lord Browne of Ladyton
However, I regret that in this case I cannot support my noble friend’s amendment. If there is a mischief here, it seems to me that the solution lies in the hands of the political parties. We should not be legislating for this and I am surprised that we have in fact legislated in Wales, but if the Welsh people wanted that, that is fine.
For many years, the Labour Party had a voluntary prohibition on this. We had a rule that you could not stand for both the lists and the constituencies. We departed from that at the last election to the Scottish Parliament and because of that Sarah Boyack is a Member of the Scottish Parliament. That seems to be a good result; apart from anything else, it may be a reason for maintaining the status quo.
Lord Steel of Aikwood
Is the noble Lord aware that the Conservative Party in Scotland had precisely the opposite rule—that in order to be on the list you had to stand in a constituency?
Lord Browne of Ladyton
I am most grateful. Every day I come to work in your Lordships’ House I learn something, and that is today’s learning experience. I had no idea that that was the case. Maybe at some stage—I will not take up your Lordships’ time with this now—somebody will explain to me why that was the case.
Baroness Randerson
Perhaps I can add to the amount the noble Lord has learnt today. It was not really the case that the people of Wales wanted to abandon dual candidacy—the Labour Party in Wales was very keen on that. Consultation produced a total lack of interest on the part of the people of Wales. However, although the system of election is better than first past the post, it is rather chancy. Not allowing dual candidacy actually increases the chances of strange results happening. For example, in the last Welsh elections the Conservative Party was extremely successful, led by a leader who was not able to be a constituency candidate because he was a list candidate. He was so successful and they won so many constituencies that he lost his list seat. It does enhance the problems of the system.
Lord Browne of Ladyton
I am very grateful to the noble Baroness for continuing my education. I am better informed than I was when I rose to speak. I have to say that when I started in my political life, the people of Wales and the Labour Party were almost synonymous. In any event, one of the consequences of our generous devolution of power has been that with proportional representation in the political colour of the United Kingdom, parties have taken advantage of opportunities. I accept that and it is all part of democracy.
I am not arguing for maintaining the status quo because of the outcome. In fact, I pray in aid Arbuthnott. The Arbuthnott commission was set up to look into constituency boundaries for the Scottish Parliament, because there was an issue of divergence of boundaries between the Scottish Parliament and the United Kingdom Parliament, and voting and representation in Scotland. I have an extract of the commission’s report, entitled Putting Citizens First: Boundaries, Voting and Representation in Scotland. I am looking at paragraphs 4.5 onwards. In moving his amendment, my noble friend quoted from Arbuthnott. I do not intend to quote all these 12 or 13 paragraphs, but they seem to set out a very coherent argument for why it would be inappropriate to depart by law from what has become the practice of dual candidacy.
With all due respect to my noble friend, I will read the conclusion, paragraph 4.60, which in a sense contradicts some of the thinking. It states:
“The Commission believes that preventing dual candidacy would be undemocratic and agrees that it would place”—
and here I think it is quoting a witness—
“‘an unnecessary restriction on the democratic rights of potential candidates, parties and local electors to have as unrestricted a choice as possible in an election’.”.
Certainly, in Scotland, as a consequence of divergent party practice, in a situation that permitted dual candidacy, there is a belief that people took advantage. In my view, political parties just need to learn to make the best of the circumstances in which they are operating and then we can all take advantage of the circumstances, rather than changing the circumstances or the opportunities that other people take advantage of.
Lord Wallace of Tankerness
The noble and learned Lord is right. We cannot speculate on what happens in an Administration of whom we are not members, but I can confirm what my noble friend and the noble and learned Lord said about the Administration of whom the three of us were members. The procedures and proceedings in these matters were as they have described.
To return to Clause 7, the limited reference procedure that we are seeking would therefore allow the law officers to refer to the Supreme Court only the provisions with which they have competency concerns, while, as I said, allowing the rest to go forward to Royal Assent. We believe that this is an appropriate and sensible method of helping to ensure that the work of the Scottish Parliament runs as smoothly as possible.
On the amendments tabled by my noble friend Lord Selkirk to Clause 7, through our engagement with the Law Society of Scotland the Government have, as my noble friend indicated, tabled amendments that reflect the intention behind his amendments. I wish to thank my noble friend for looking at this clause closely and for tabling his amendments. The government amendments have the same effect; I am advised that parliamentary counsel think that they have a more appropriate form of wording, but the effect is exactly the same. We therefore very much support the amendments that he has tabled, and I hope he will withdraw his amendment in respect of the other amendments that have been tabled.
Lord Browne of Ladyton
I am grateful to the Minister. He will understand why I seek to intervene at this stage. I think it would be appropriate to point out that in the House of Commons Tom Greatrex moved a very similar amendment that was rejected, or at least not supported, by the Government at that time. The gratitude of the House to those who have created this resolution to the problem needs to be shared by him as well.
Lord McFall of Alcluith
My Lords, I have just a few remarks to make on my noble friend’s amendment. I remember the then leader of the Labour Party, Tony Blair, saying to the Parliamentary Labour Party just after the Scottish elections that he did not realise that he had been so generous to the Conservatives in Scotland. He had revived them as a result of that issue.
Two issues are raised in this amendment. One is the alienation of the political class from the community, and the other is the community dimension. When I was elected in 1987, we had a percentage turnout in my constituency around the mid-70s. By the end it was down to 61 per cent, while the turnout for the Scottish Parliament was about 50 per cent. That is a big issue for us as politicians. We are alienating ourselves from the people, and the result is that that feeds disillusionment. Things were bad enough with the expenses scandal, but if we go on like this we will feed that disillusionment.
I remember talking many years ago in the European Parliament to an Irish politician, a newly elected MEP, so I said rather naively, “You must be quite tired and looking for a bit of a break”. “No”, he replied, “I was next on the list and I have just come in”. It struck me at the time that the link between the representative and the people of the community was broken, and that is a bad thing for politics and a bad thing for communities. We have to look at the alienation that exists at the moment, along with a loss of trust in the system and politicians.
The community dimension is very important because people are proud of the Member of Parliament who represents them and their interests. As others have said, Members are also proud in taking the interests of their communities to Parliament. The latest Bill which the Government have brought forward is indeed representation by numbers. In the long run we will suffer as a result of that situation.
I understand that there is no perfect system, but we walk into things with our eyes open. For example, the latest Bill the Government have put before us for House of Lords reform presents the possibility of Members being here for 15 years. It is obvious that they will feel that they are superior to the Members of the House of Commons as a result of that. Let us take the Finance Bill. The House of Lords cannot touch it, but that must be the first casualty because we will have elected Members here who have to go back to their constituencies. All politics is about priorities—it is about what is spent on health, education and transport. Can anyone say in all honesty that the people who are representatives here will not look at a Finance Bill as a result? If we pass the Bill, that will hit us like a train. We have an opportunity to be sensible about these issues and tie everything up. While I go along with my noble friend, I do not think that this is the time to put this forward. There are big issues on the agenda and I am grateful to my noble friend Lord Foulkes for raising them in his amendment.
Lord Browne of Ladyton
My Lords, I know my limitations and that I will be unable to match the gratitude of the noble Lord, Lord Steel of Aikwood, to my noble friend Lord Foulkes, but I will do my best. That is all I have to offer him. I thank him for bringing forward this amendment. I believe that he has made the case for a review of the electoral system used for elections to the Scottish Parliament. He made it by reminding us of the promise that the system would be kept under review; of the acceptance of the recommendations made in the Arbuthnott commission report in 2006; and, if I remember correctly, of the acceptance then that it would be appropriate to have a review of the electoral system for the Scottish Parliament following the May 2011 elections—which recommendation I recollect was accepted by Douglas Alexander, the then Secretary of State for Scotland. That acceptance may not have transferred to the new coalition Government and the present Secretary of State, but I suspect that if he reread Arbuthnott, he would come to the same conclusion in relation to that review as did Douglas Alexander.
For that reason, I accept that there is a case for a review. I was interested in the intervention made on my noble friend Lady Liddell by the noble Lord, Lord Stephen, who indicated that he had some reason to believe that the current leadership of the SNP in Scotland had welcomed the review and might be inclining towards the views of my noble friend Lord Foulkes about what system should replace the present one.
My noble friend expressed some surprise at that, but I am not surprised, because the SNP now has the constituencies. There is a tendency for a party’s view of the electoral system to reflect either its wish to hold on to the status quo or its desire to disturb it. That is exactly why my noble friend is right to suggest that the review needs to be carried out independently of politicians, and the noble Lord, Lord Forsyth, is right to support him.
Perhaps part of the problem with the present system was that it was a compromise agreement between political parties which had an objective to disturb the status quo. My own experience is that some of the concerns about the electoral system that is used for the Scottish Parliament are exaggerated, but I do not have comprehensive experience all over Scotland of how the system works. I know that people whose views I respect have concerns about it and they have been articulated here in our debate.
I suspect that the noble Lord, Lord Steel, is partly responsible for forcing upon the Electoral Commission a numerical priority. We have had two experiences of this in Scotland. One was in a review of boundaries for the Scottish Parliament elections, when my recollection was that the instruction that went out to the Scottish Boundary Commission was in its interpretation so restrictive that it took the basic building block and just applied it numerically from one starting point across Scotland. With one or two exceptions, none of its recommendations survived the appeal process or presentation to the sheriff principal because they were ridiculous in relation to communities. I remember the debates about the constituency boundaries and voting systems Bill, when my noble friends were queuing up to say that that is exactly what would happen if we forced that structure, or any part of it, on the Boundary Commission again through that legislation. So, in a sense, this legislative body has exacerbated the problem through that legislation.
I accused the noble Lord—I hope not too seriously—of being part-author of that problem. However, he may not have voted against the attempts that were made to ameliorate the effect or to stop it, but I have a recollection, certainly, of people from his Benches voting against the amendments that were tabled through the best endeavours of people on this side of the House who knew exactly how it would work and tried to prevent it happening. If it does happen, some people will have been the authors of their own misfortune by creating a separation between communities and constituencies.
We have yet to see how the review of constituency boundaries will work out but I predict confidently that when people realise how they will take effect in their communities, Members of Parliament of all parties will be screaming from the rooftops. Not only that, communities from all over the country will come to Members of Parliament and politicians and say, “What are you doing here? What have you done?”—and it will be interesting to see how many people stick by the arguments that they made during the passage of the Bill as a justification for doing this. However, that is perhaps another matter. I did not introduce the issue into the debate but I have taken advantage of the opportunity to make my point.
Having supported the general tenor of the debate—that the time has come for a review—I say to my noble friend that I do not think this is the vehicle for it. Earlier in the debate I understood the Minister to indicate, possibly in anticipation of this amendment, that the Government were minded to explore whether the time had come for a review; that they were going to do so in an appropriate way by consulting across parties; and that the voting system for the Scottish Parliament could be included if there was consensus and agreement for such a review.
That is, of course, the way in which we should proceed with all constitutional change; we should consult and seek consensus so that we can go forward. No political party owns the constitution and we all have a responsibility to preserve certain parts of it to hand on to future generations. It belongs to the people, not to us, and we should ensure that we do not seek party advantage out of a review of the constitution. If there is to be constitutional change in this area, that is the appropriate way to do it—not by, with all due respect to my noble friend, a provision in this Bill.
The structure that my noble friend has suggested has many of the right ingredients for a review. The timing that he proposes, however, would, if we pass the amendment, divert us from what should be the focus of our attention for that period of time and until the referendum in Scotland—that is, making the progressive, proper, forward-looking argument for keeping Scotland in the union; we should not use any of our resources for considering the system for electing Members to the Scottish Parliament. In my view—and I am afraid to say that this is where my gratitude to my noble friend runs out—this is the wrong vehicle. I prefer the Minister’s indication that it will be done in an appropriate way by a review instituted with some degree of consensus. The discussion needs to go beyond political parties into civic Scotland. It is the wrong time, but I am grateful to my noble friend for allowing this debate.
Lord Wallace of Tankerness
My Lords, the amendment moved by the noble Lord, Lord Foulkes, has generated a considerable amount of discussion on the merits or demerits, as perceived by noble Lords, of the present electoral system for the Scottish Parliament. I declare a non-interest: I was not at the noble Lord’s party, but I can assure him that that has no bearing whatever on the response I will give to his amendment.
He wishes to set up a committee to review the electoral system used to elect Members of the Scottish Parliament. It is tempting to go through the history of how we arrived at the electoral system we have. I shall resist that temptation, other than to say, as was indicated, that it was a compromise. It was obvious at the time and is the case. My noble friend Lord Steel said that there was a commitment to review the system after two elections. I do not remember such a commitment but, nevertheless, the Arbuthnott commission was established jointly, if my memory serves me correctly, by both the Scottish Government and the United Kingdom Government to look at the electoral system. It reported, recommending some revisions to the electoral system. I try to remind myself what they were. The Arbuthnott commission recommended that the mixed-member proportional system we have for elections to the Scottish Parliament should be revised to give voters more choice. It suggested that the closed list should be replaced by an open one, that the boundaries should be based on local authority areas and that a role should be defined for the regional MSP. Self-evidently, these recommendations were not taken forward or implemented.
The commission went on to say that,
“our revised electoral system, if implemented, should be reviewed following the experience of two elections. If further reform is judged necessary, consideration should be given at that time to introducing the single transferable vote for Scottish Parliament elections”.
As I have indicated, that revised system has not been implemented. The Calman commission perhaps read more into that and interpreted it as saying that in any event there would be a further review after two more elections—ie, after 2011. My colleagues who sat with me on the Calman commission will no doubt recall that we did not make any recommendations on the voting system as such because of the very recent Arbuthnott review, but also because there might have been a future review.
As I indicated in an earlier debate, specifically on another aspect of the electoral system and the regional list Member also standing in the constituency, the Government have stated their intention to consider what has been said by a review of the electoral system by both the Calman and Arbuthnott commissions. Indeed, in the Command Paper published alongside the Scotland Bill on St Andrew’s Day 2010, Ministers said that they recognised that the Calman commission,
“considered whether the electoral system for the Scottish Parliament should be reformed or devolved to the Scottish Parliament. Previously, the Arbuthnott Commission had reported in 2006 stating that there should be a review of the electoral system after the 2011 elections to the Scottish Parliament—the Government will consider this recommendation, taking into account the views of the new Scottish Parliament, following the May 2011 elections”.
Clearly, as indicated by the debate we have had this afternoon, there is support in a number of quarters for some form of review of the electoral system. However, the Government believe that they could take forward that review only with the full support of all parties in the Scottish Parliament, along with the benefit of the detailed consideration that this Government are committed to. I take the point made by the noble Baroness, Lady Liddell, that there is perhaps some nervousness about seeking to change the rules after they delivered a result that many of us did not like. That is a fair point. The noble Lord, Lord Browne, also made the important point that there are perhaps more important constitutional issues that we should focus on at this time, not least the fundamental question of Scotland’s place in our United Kingdom. Perhaps now is not the appropriate time to start a review of the electoral system. I have indicated that if there is that consensus to take it forward at some future time, we would be willing to consider it, but this is not the appropriate time to do so.
I think that we all share two views that were expressed earlier. First, I endorse what my noble friend Lord Forsyth said on the standing and importance of a Member of Parliament in his or her community. He said that those of us who have had the privilege to serve as Members of Parliament take very seriously that we represent the entire community and not just those who voted for us. That sense of representation and the privilege that follows those of us who have done that is important. That links into what the noble Lord, Lord McFall, said on the duty of all us to consider how as politicians—elected or not—and as a political system we can re-engage with the people who our laws affect. That will not be done just through a change to an electoral system. There are a whole host of things but it is something we would do well to remember.
For clarification, on the specific point raised by the noble Lord, Lord Foulkes, on Amendment 1, I repeat that we will see what consensus there is about looking at that. In the spirit of what I have said, I hope the noble Lord will withdraw his amendment.