Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Davidson of Glen Clova Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Davidson of Glen Clova (Lab) [V]]

My Lords, I declare an interest as a Queen’s Counsel in practice in Scotland, whose work from time to time involves cases where the Bribery Act is required to be considered, and as a former Advocate-General in post at the time of the Act’s introduction. I also take this opportunity to congratulate the Minister on his appointment as Advocate-General, to which he brings not only his considerable professional ability but a calm and measured approach.

The noble and learned Lord, Lord Saville of Newdigate, and the committee, are to be complimented on this excellent review of the Bribery Act, as other noble Lords have observed. It is gratifying that the Act, introduced by the then Labour Government, is now so well regarded by so many. It is fair to say that it received a considerable amount of criticism as being a shackle on British international business at its introduction—a point that was observed by the noble Lords, Lord Gold and Lord McNally, and which was picked up by the noble and learned Lord, Lord Hope of Craighead.

The committee notes that there have been a number of positive assessments of the Act which chime with the general view of the it as broadly perceived. The noble and learned Lord, Lord Woolf, added his weighty and positive commendation, followed by the noble Baroness, Lady Ritchie, with her eloquent commendation.

The range of topics covered by the committee’s report is extensive, so I will confine myself to only a few matters. The first of these arises not from the Act but is scrutinised by the committee: the success of deferred prosecution agreements. I share the commendation of the noble and learned Lord, Lord Morris, of the noble and learned Lord, Lord Garnier, for having pushed this innovation forward. Similarly, Sir David Green, as former director of the Serious Fraud Office, can be congratulated on putting the DPA into practice very effectively. While it is not unknown for the SFO to be criticised, it should be given considerable credit, as the noble Lord, Lord German, observed, for its innovatory use of artificial intelligence in the Rolls-Royce case, identified by the committee at paragraph 72. What might have taken many months if not years of document analysis was reduced to weeks and greatly accelerated the resolution of a highly complex case. It is encouraging to see that the SFO is now deploying AI-powered analysis across its new casework and embracing new technology ahead of many in the private sector.

One specialist in bribery law, Eoin O’Shea, now at CMS, who gave evidence to the committee and who is a supporter of the Act, has commented that DPAs may reduce the opportunity for senior courts to grapple with the key concepts from the legislation: for example, the defence of adequate procedures. Is the Minister able to say whether the statutory guidance will be amended to equiparate “adequate” to the familiar “reasonable in the circumstances” approach, as the committee and the noble Baroness, Lady Bowles, emphasised?

What may be less encouraging are the observations made by the committee on the corresponding Scottish regime to DPAs. Most Scots lawyers would be opposed to a proposition that Scots law should always copy the laws and procedures of the southern jurisdiction. However, the committee raises some clear and forceful criticisms of the civil settlement regime in Scotland.

I note that the government response identifies that some but not all of these criticisms have been addressed. Having been a Scottish Solicitor-General some two decades ago, I was conscious of a then somewhat overdeveloped resistance to transparency in the Crown Office. I had assumed that that resistance might have reduced substantially by now.

The noble and learned Lord, Lord Hope, sees little problem in the absence of judicial oversight of civil settlement, but is the Minister aware what reasoning lay behind the unwillingness of the Scottish Government to adopt judicial oversight of civil settlement? One might expect, given the international dimension of most bribery offences, that jurisdictional differences might be thought somewhat undesirable in this area, given that it applies a UK statute. I echo the concern of the noble Lord, Lord Empey.

One further criticism that is levelled regarding the Act in practice is the paucity of prosecutions. One immediately understands the difficulty in gathering reliable evidence and carrying forward the question of resources, a matter that my noble friend Lord Hain stressed as an important requirement. My noble and learned friend Lord Morris also identified this, as did the noble Baroness, Lady Fookes, and the noble Lord, Lord Bradshaw. Bribery is, by its very nature, covert—in the shadows, as the noble Lord, Lord Thomas, put it, with perpetrators often taking steps to disguise the crime as innocent activity. What can be less easy to understand is the absence of prosecution when, in civil proceedings, bribery has been uncovered and held by the court to have occurred to the civil standard with a high level of confidence. It is unclear how often this situation arises, but anecdotes suggest it has arisen from time to time. Perhaps the Minister may even have encountered this problem in his own practice. This is a variation on the point made by the noble Lord, Lord Gold, about DPAs and the lack of individual prosecution. Is the Minister aware whether any research has been carried out to identify such occurrences? If so, is there any explanation for this apparent dissonance?

The area of corporate hospitality, which perhaps received the most criticism at the time of the introduction of the Act, remains, as the report indicated, an area where greater clarity is desired, where context is critical to assessing the appropriateness of a level of hospitality. The committee correctly recommends clearer guidance by way of examples being given. Is the Minister committed to leaving the guidance as it is, or is he really content, as the Government’s report suggests, that clarity may be outsourced, in a way, to Transparency International? If outsourcing to Transparency International is favoured, there are certainly a number of areas where TI offers guidance to the Government.

Hospitality, in its various forms, is of course one area that comes close to the conduct of government. The very first words of the report state:

“Societies are built upon trust.”


Nowhere is trust more important but less prevalent today than in government. Transparency International UK, in its recent report, Corruption and the UK, opined:

“The corrosive influence of big money continues to undermine the integrity of the UK’s political system.”


The noble Lord, Lord McNally, referred to TI’s perception of a sliding of UK enforcement. The noble Lord, Lord Empey, gave a caution to the position of London’s reputation in the world and the noble Lord, Lord Bradshaw, added his concerns.

There is an insidious form of bribery that provides hospitality and financial support in many forms, but which never expresses a direct quid pro quo; rather access, favours and influence are the implicit anticipated reward, which may come all too easily. Does the Minister agree that such conduct should be criminalised to restore integrity to the political system? Should not the definition of bribery be extended to cover such activity wherever it may arise? Does he agree with the chief executive of Transparency International UK, who in a press release of 21 September 2020 said:

“To win back public trust, Parliament should legislate to remove the corrupting influence of big money from our democracy.”?

Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

Lord Davidson of Glen Clova Excerpts

Wednesday 26th June 2019 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, I thank the Minister for introducing this brief order, which this side does not oppose. It is commendable that the Scottish Parliament has replicated the victim surcharge scheme that has operated in England and Wales since 2007. It should be a reasonable example of the cross-fertilisation of legal innovation that can occur from time to time within the UK.

What is perhaps surprising, as the noble and learned Lord, Lord Wallace, narrated in some detail, is that, having gone to the trouble of introducing this instrument into Scottish criminal law in 2014, some five years on victim surcharges have not been brought into force in Scotland. I note from the Explanatory Memorandum that it appears that some statutory amendment is required to be undertaken by Her Majesty’s Government before the relative support for victims and witnesses may be made effective.

I have a few questions for the Minister. On the assumption that the victim surcharge would be as useful in Scotland as in England and Wales, should not the scheme have been operational in Scotland some time ago? Does responsibility for the delay lie with Her Majesty’s Government, with the Scottish Government or, indeed, with both? Is there any particular reason why the scheme should not have been operational in Scotland? Is it perhaps because problems have arisen with the scheme in England and Wales that no one wishes to visit on the people of Scotland? Is there any assessment of how much money has been denied to the victims of crime in Scotland consequent on the non-implementation of the scheme? The noble and learned Lord, Lord Wallace, identified a figure of £1 million per annum. By my arithmetic, that would mean £5 million has been denied to victims in Scotland. Is that correct?

On the assumption that the scheme will be implemented, how is it envisaged that cross-border issues will be determined? Where the convicted person is resident in another part of the UK, will a special recovery procedure be required for the victim surcharge? I appreciate that the Minister may not be able to answer all these questions immediately; any written answer would be welcome.

[Lord Duncan of Springbank]

My Lords, this is one of these rather interesting areas in which I seem to be called on to explain the inscrutable workings of the Scottish Government, which I am unfortunately rather ill equipped to do. The noble and learned Lord, Lord Wallace, raised a number of issues regarding the lengthy delay. To be frank, I do not have an adequate answer to give him on behalf of the Scottish Government.

I have before me a statement which says that the Scottish Government have undertaken detailed consideration and consultation. Clearly it has taken a very long time. Exactly why that has been the case remains to be seen. Indeed, through a series of questions asked by a number of Members of the Scottish Parliament, it is quite evident that the Scottish Government were very optimistic that this would be delivered—that the answer would be arriving now—and that has simply not happened.

The noble and learned Lord, Lord Davidson, asked who is to blame for this. I would not use the term “blame”, but I suggest that the Scottish Government have responsibility in that regard. When we learned that there needed to be an amendment of the legislation which was reserved, we of course acted expeditiously to move that forward and will do so. Today is a measure of how quickly we have been able to move. I have not had sight of the details of the Scottish Government’s proposals. While I could speculate that they may look rather like the English and Welsh version—I would only be speculating in saying that—I anticipate that this will come through the Scottish Parliament in due course. I am afraid that I cannot speak on its behalf, however, so I am unable to answer that question.

The noble and learned Lord, Lord Hope, raised the issue, echoed by the noble and learned Lord, Lord Davidson, of those individuals who find themselves outwith the territorial jurisdiction of Scotland—in Wales or in England. That is a correction which we can take forward. As to the mechanism whereby that will be undertaken, I have to admit to the noble and learned Lord, Lord Davidson, that I do not have the detail on that. If it is equivalent to the English or Welsh version, I can certainly have that information placed in the Library. If it is some variation on that, we will have to wait until the Scottish Government determine what it should look like.

As to the amount of money not gathered as a consequence of the length of delay, the noble and learned Lord, Lord Wallace, is correct in his figures. The estimate is that around £1 million is available to be gathered in this way, but that of course depends on the details of the Scottish Government’s regulation, which I do not have. I am not sure whether that is an accurate reflection of the money or whether it is just speculation on our part. It may be that, once we have more detail on this, I can secure that information and place it in the Library. Of course, the avid Members of the Scottish Parliament may be better equipped to interrogate the Scottish Government further on these issues, about which I am afraid I have remarkably little information to satisfy noble Lords.

Devolved Administrations: 20th Anniversary

Lord Davidson of Glen Clova Excerpts

Wednesday 22nd May 2019 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, 20 years of devolution over four nations is a substantial subject, and the initiators of this debate are to be congratulated on their choice of it. On 12 May, we marked the 20th anniversary of the first meeting of the Scottish Parliament. Up to now, this has been what many regard as the major implemented constitutional innovation for the UK of the past two decades. It was brought about by a Government who sought not to gain narrow party advantage but to improve the governance of the UK. Making government more responsive to the particular differences of the various parts of the UK was seen as a good in itself. It owed much to the foundational work of John Smith and later the constitutional convention, to the determination of the Blair/Brown Government and to the political skills of Donald Dewar.

This year is also the anniversary—the 40th—of the first Scottish referendum on devolution, when the vote, although in favour of devolution, was not considered sufficient to enable such a major constitutional change. It was 52% in favour and 48% against. Such was how the “will of the people” was interpreted 1979.

The Labour Government of 1997 introduced devolution not only to Scotland but of course to Wales, London and, in a new form, to Northern Ireland. It must be said that these innovations were not greeted with universal enthusiasm—I note that the Minister was one of those not expressing such enthusiasm —but, as time passed and the institutions matured, acceptance and popularity increased. Many of those who opposed the whole concept of devolution gradually warmed to it. In Scotland, for example, the Conservative Party that opposed devolution initially has since come to perceive the devolved Parliament’s virtues—and not simply because it has become the largest opposition party of late.

Despite a somewhat uncertain start, devolution is now seen as a permanent part of the UK’s constitution. The motive for devolution was indeed improving governance. The introduction of voting systems that did not entrench Labour recognised that minority views should not be ignored in favour of winner-takes-all outcomes. The refusal to gerrymander the electoral system in the devolved legislatures has, it must be recognised, not always been entirely comfortable for Labour, but it has promoted government more representative of the electorate. Sometimes Governments have to take decisions on the basis of national, not party interest.

Although the planning of devolution aimed at a relatively fixed set of arrangements, the reality has been an almost continuous process of evolution, with further powers being attached on the devolved legislatures. Wales voted in 2011 in favour of full legislative powers for the Assembly, shortly to be renamed the Senedd; Scotland, via the Scotland Acts 2012 and 2016, gained power over income tax; in Northern Ireland, despite the problems with power-sharing, the Assembly remains the desired constitutional option for the majority. Of course, these Benches share the Minister’s encouragement of the return of a working Assembly.

The creation of new legislatures in Scotland, Wales and Northern Ireland has unsurprisingly not been without problems. Government is difficult and devolved government was found to be more difficult than many expected, especially as most of the elected representatives were beginners in the business of legislating and governing. In addition, there are fewer legislators available than at Westminster to scrutinise legislation and, of course, there are no second chambers, of which we all recognise the benefit. The use of scrutiny committees was intended to improve the consideration of legislation but, at least in Scotland, this has not always proved to be the case. As my noble friend Lord McConnell has observed, scrutiny committees, when subject to party whipping, run the risk of becoming less effective. There is also a concern that capacity is stretched by the amount of legislation coming before the committees. This appears to be the case especially in Wales.

None the less, a real benefit of devolution has been the potential for experimentation with policy initiatives differing from those of the UK Parliament. Interestingly, these initiatives have sometimes been picked up by the UK Government: one example already referred to is the smoking ban in Scotland in 2006, which was followed not only by the UK Parliament but by the Welsh and Northern Irish Assemblies. Another example, again already referred to, is the Welsh Assembly’s legislation to impose a levy on plastic bags in 2011, which has been followed by the rest of the UK. Experimentation in the nations of the UK introduced by the nations themselves avoids the democratic default when it is imposed by central government. Few in Scotland can forget the debacle when Scotland was used by central government as the experimental ground for the poll tax.

In the business of government there has been development to provide an arrangement more compatible with national requirements both in Scotland and in Wales. The 2007 reform of the Civil Service in Scotland to introduce collective rather than departmental objectives appears to have produced a more coherent, more flexible organisation more in keeping with the smaller scale of government. The Civil Service in Wales has adopted a similar structure. One complaint one hears, however, is that the past practice of moving civil servants from Edinburgh, Cardiff and Belfast to London and back again has been substantially reduced, with a concomitant loss of skills transfers to the devolved Administrations.

One development in recent years that was not foreseen by the proponents of devolution at the outset has been the degree of fiscal devolution. The power to spend being substantially divorced from revenue-raising created tensions across the devolution settlements. Devolved Governments of a different political stripe from the UK Government argued for tax-raising powers and central government, wishing to improve financial responsibility, tended to agree. The subsequent divergence of taxes within the UK may be said to encourage the experimentation that has occurred in other areas of policy, but it has also shaken the coherence of the UK tax regime. Divergence has been most marked in Scotland with the introduction of a more progressive income tax structure and stamp duty rate than the rest of the UK. The one unforeseen consequence according to business—one assumes that it was unforeseen—has been the difficulty in attracting higher paid executives to Scotland from the rest of the UK. An employee earning £50,000 per annum currently pays £1,500 more income tax in Scotland than in the rest of the UK. The lower-paid have a lighter tax burden, which, of course, is a positive. It will be interesting to see how such divergence translates into the overall economy in the years to come.

Economic issues will doubtless become more pointed should the UK leave the EU. The EU funding of agriculture, rural development and structural funds benefits the devolved nations disproportionately. Her Majesty’s Government’s stated commitments for future post-Brexit funding are somewhat vague going into the medium term. This is self-evidently unsatisfactory. The absence of a coherent plan as to how EU funding would be replaced is likely to provoke not only continuing debate but new tensions.

The current proposal by Her Majesty’s Government to retain powers over agriculture and fisheries, regional policy and some aspects of state aid for up to seven years seems to challenge the devolution settlements. An increase in centralisation of the UK goes against the grain of devolution, and to what end? One might hope that there would be a worked-out strategy for this aspect of devolution. An ad hoc approach to constitutional development carries many risks for the integrity of the UK. We have surely learned that lesson, at least over the last few years.

In looking at the last 20 years of devolution I have endeavoured to steer clear of the political disputes that have arisen both within the devolved legislatures and with the UK Parliament, but it goes without saying that there have been many such disputes. The demands for independence and the critiques of policies on health, education, housing, the environment, justice and so on have certainly contributed to lively debate. It could not be otherwise. Have there been mistakes, unforeseen consequences and tensions with the UK Government? But of course. It may be said, as Gordon Brown did on Monday, that non-stop constitutional argument in the Scottish Parliament does not favour good government. But it may also be said that, no matter what blunders there are, those errors are made by the devolved, elected representatives themselves. We make our own errors. Moreover, the devolved Administrations do not have a monopoly on error, as recent years have perhaps demonstrated here.

On balance, devolution has undeniably improved democratic accountability within the UK. At a time of unparalleled constitutional uncertainty, that must be one positive in the UK’s governance.

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2019

Lord Davidson of Glen Clova Excerpts

Wednesday 10th April 2019 Lords Chamber

[Lord Bruce of Bennachie (LD)]

I echo what the noble and learned Lord, Lord Hope, has said. This is the way we hope things will work with a devolved Parliament and Administration but where there is shared decision-making. I have only one question, because the powers are concurrent. When the Minister responds, will he explain what happens in the unlikely event that there is a matter of dispute? It is territorial and this order effectively devolves the power to Scottish Ministers, but if “concurrent” means what it implies, in theory the Secretary of State in the UK Government could say, “I do not agree”. That is unlikely in the circumstances, but I wonder if the Minister can clarify what would happen.

[Lord Davidson of Glen Clova (Lab)]

My Lords, I thank the Minister for his exposition of the order. As the noble and learned Lord, Lord Hope, has said, no one could disagree with it.

We are coming up to the 20th anniversary of the creation of the Scottish Parliament and of Scottish Ministers. At some point, it might be interesting to hear the view of Her Majesty’s Government of the performance of the devolved Executive over the past two decades, with some focus on its delivery in devolved areas such as education and health. That might be both interesting and instructive.

As for the order, the noble Lord, Lord Bruce, has raised a good and sensible point. Concurrency of Scottish Ministers and the Secretary of State in relation to the functions raises the possibility, although it may be remote, of differences of view and possibly a dispute. Do Her Majesty’s Government envisage that any disputes might arise and how, if they arose, they might be resolved?

I have asked a question about resolution of disputes. As the Minister may recollect, I asked a similar question when the forestry order came up, but I do not recall getting an answer—perhaps matters will alter. It may simply be—this is to a degree foreshadowed by the observations of the noble Lord, Lord Bruce—that this is an area where Her Majesty’s Government do not detect the possibility of differences arising between Scottish Ministers and the Secretary of State.

[Lord Duncan of Springbank]

My Lords, it is right that we as a Government reflect on the success of devolution. Devolution working is inherently a good thing, and in this order—and, I hope, the one to follow—we see how the nuances of that can work. Whisper it not, but the Scottish and UK Governments really do get on remarkably well at official level and at ministerial level—only occasionally are buns thrown. That is necessary within the devolution settlement. The noble and learned Lord, Lord Davidson, is right to say that we as a Government should perhaps do more to reflect on the successes and, indeed, some of the shortcomings of devolution to date. I know that, in the various discussions we have had in this House, challenges have been expressed by the Scottish Government about certain elements of future policy. We will need to cast our eye to the horizon and give consideration to how devolution—which is, of course, a process—can continue.

On this order, I am happy to echo the words of the noble and learned Lord, Lord Hope, when he talks of the skill and quality of the draughtsmanship and the drafters themselves of the original Scotland Act 1998. It is a good Act that has stood the test of time; the fact that we are here is testament to that. I am very happy to make that statement.

The noble Lord, Lord Bruce, asked a question about concurrent powers. I asked that question too. I will give noble Lords an answer—they may or may not decide that this is a good answer, but it is the answer I have. There are no known intentions for UK Ministers to exercise any functions relating to this order on behalf of Scottish Ministers. This is almost like the unknown unknowns and the known unknowns of the former US Secretary of Defense. As things presently stand, it is not anticipated that that will be an issue, but the noble and learned Lord is quite correct that that does not mean it will never be an issue. I say only that, should that arise, I do not doubt that it would need to be taken forward through the proper channels between the two Governments to ensure that it does not become a constitutional problem or a constitutional crisis. The Government today do not anticipate that, and nor do I.

I will go back and read Hansard to check what I did not answer last time. I will make sure that the noble and learned Lord, Lord Davidson, gets an answer; I would not like to leave anything hanging there. On that basis, I beg to move.

Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2019

Lord Davidson of Glen Clova Excerpts

Wednesday 10th April 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, it is good to be with you again. I beg to move that the draft order laid before the House on 4 March 2019 now be considered. The order is necessitated by the Regulatory Reform (Scotland) Act 2014, which sought to accelerate the procedure for how certain appeals are determined: namely, appeals on applications for consent for renewable energy generating station development and appeals against decisions to hold a public inquiry.

Today’s order will ensure that the same appeal mechanism applies whether there is a challenge against a decision of the Scottish Ministers on either an application for a marine licence or an application for a Section 36 consent for energy developments in Scotland’s waters. This order makes two amendments to the Electricity Act 1989 to ensure that this same appeal mechanism applies.

The UK and Scottish Governments have worked closely together to ensure that this order makes necessary amendments in consequence of the 2014 Act. This order demonstrates that the UK Government remain committed to strengthening the devolution settlement and shows Scotland’s two Governments working together. On that basis, I beg to move.

[Lord Davidson of Glen Clova (Lab)]

My Lords, I commend the Minister on the brevity of his exposition of this particular order. Again, it is one that Labour is not inclined to oppose. The Explanatory Memorandum describes part of the amendment as being in relation to a legislative oversight. Have any issues arisen as a result of this oversight? For example, is the Minister aware of any decisions that have been made affecting the Scottish part of the renewable energy zone that excluded Scottish Ministers from the decision-making process? Additionally, are any appeals currently outstanding regarding decisions that in fact affect the Scottish part of the renewable energy zone?

[Lord Duncan of Springbank]

My Lords, the noble and learned Lord, Lord Davidson, is quite right that this is a very short correction. In discussing this with my officials, we came up with the phrase “a technical tidy-up”, which is broadly what it is meant to do. The oversight mentioned by the noble and learned Lord—my word, I actually know the answer to this one—refers to the definition of “waters”. Because it was a reference to part of an earlier order, it was incorrect in so far as it did not encompass all of Scotland’s waters, but instead just the inshore waters. The purpose of this order is to ensure that, in essence, the entire zone out to 200 nautical miles is covered—the waters in their entirety.

As to the specific issues, there have been no occasions on which Scottish Ministers have been affected by this technical oversight. In essence, they have been exercising the powers as they assumed the provision had been drafted rather than as it was actually drafted. Only when we discovered that there was a technical problem did we recognise that this needed to be brought back to give clarity in law. So no outstanding appeals are affected in any way by this particular decision, and Scottish Ministers have not in any way been excluded from the decision-making process. In essence, we have just been diligent in correcting, literally, the letter of the law. On that basis, I commend the order to the House.

Forestry and Land Management (Scotland) Act 2018 (Consequential Provisions and Modifications) Order 2019

Lord Davidson of Glen Clova Excerpts

Thursday 28th March 2019 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, the forestry sector is a significant contributor to the Scottish economy, to the extent of some £1 billion. It also imposes opportunity costs resulting from the tax treatment of forestry and from the externalisation of costs pursuant to the effects on the rural road network during harvesting. So an important responsibility is given to Scottish Ministers and, as my noble friend Lord Foulkes observed, it is important that this is exercised sensibly.

Article 3 deals with Scottish Ministers and cross-border arrangements. Given that there will be mixed responsibilities where, for example, a single forestry unit straddles the border, will the Minister identify the extent and distribution of responsibilities between Scottish Ministers and their English counterparts? As the noble Earl, Lord Kinnoull, identified, this may also affect other matters such as squirrels. I understand that a memorandum of understanding is envisaged, but what is to be the guiding principle for the division of responsibilities, and how would any differences between the authorities be resolved? One notes the reference to arrangements as between Scottish Ministers, Welsh Ministers and the Natural Resources Body for Wales. What is to be regarded as the content of any such arrangements, and how will arrangements with Northern Ireland be governed? There is already an allusion to that point.

In Article 4, on forestry commissioners and the cross-border arrangements, what is envisaged as being the new relationship between Scottish Ministers and the forestry commissioners? Specifically, what arrangements are envisaged? Given that the forestry commissioners’ functions will no longer be exercisable in Scotland, this may be a significant issue.

In Article 5, on renewable energy installations, the Scottish Ministers’ functions will extend to promoting electricity produced from renewable sources. There is concern in Scotland that biomass energy, which was originally hoped to be substantially dependent on forestry thinnings, has now become dependent on using mature trees as the raw material for pelletisation. Beyond the order, will there be any guidance or control that Scottish Ministers may deploy to discourage this practice? In the same context, will recently expressed concerns over the health effects of wood smoke be subject to Scottish Ministers’ guidance, so far as the Minister is aware?

[Lord Duncan of Springbank]

My Lords, I am very grateful for the detailed questions that have been asked today, and I will do my best to do justice to them.

I will start with the noble Lord, Lord Addington. On the question of what practical co-operation and co-ordination will look like—this also touches on the comments made by the noble Earl, Lord Kinnoull—the purpose here is not to undo established relationships, particularly at the research level and where the co-operation is based on intellectual engagement with the various challenges facing either the health of the forest or indeed the welfare of the forest inhabitants. There are established relationships, and it is not anticipated that these will be interrupted or disturbed. They will reach not just between—to be frank—the current commissioners and Scotland but also where information can be shared between Wales, Scotland and England. The noble Earl, Lord Kinnoull, asked whether this applies to Northern Ireland, and I have been told that the answer is no, it does not. It focuses only on Great Britain in that context.

The issue around renewables is important. The current powers exercised by the commissioners will transfer as they are. The noble and learned Lord, Lord Davidson, asked about guidance, particularly with reference to mature trees. I believe that he and I share exactly the same view—that we should not in any way be looking at mature trees for renewable electricity generation. Again, I hope that the current guidance will be operated in exactly the same fashion: namely, that mature trees should not form the basis of wood chips or wood pellets to create renewable electricity. That would defeat the purpose of the overall ambition. The guidance exists, and I hope that it will continue to be applied in that wider context.

The noble Earl, Lord Kinnoull, asked an important question about squirrels. I know that he is a passionate advocate of the red squirrel—I am fully aware that I come from a part of the country, in Perthshire, around Alyth, which has a well-established red squirrel population. The noble and learned Lord, Lord Hope of Craighead, knows what I am talking about—he knows the squirrels of Perthshire. Again, it is important that we recognise that we have established information about the squirrel communities, and we cannot lose that simply because we create different separations of powers. There needs to be a sharing of our understanding around squirrel movements, and we need to do that at the level of the island of Great Britain as a whole: that will remain absolutely essential to moving forward here.

We must be cautious—this touches on the points raised by the noble Lord, Lord Foulkes—that, as we move toward a new arrangement, it cannot be a diminution of where we are now: it must be an improvement, or certainly no worse. We must be cognisant of and attentive to each aspect, particularly where sharing relates to plant or tree health and where we have pests and various types of wood-borne disease. We cannot take any chances: our forestry estate is too important. Noble Lords will be fully aware of the challenges experienced just now with regard to ash trees, and the wider issue of contamination—how quickly it can spread if we are not careful. We must continue to co-ordinate and collaborate at a UK-wide level, because our forestry estate is too important not to.

The noble and learned Lord, Lord Davidson, touched on the issue of the rural road network. That is integral and the Scottish Government have the responsibility to take this matter forward sensitively and carefully. I hope that they will continue to do that, because it is critical to the well-being of often remote areas.

There is one block of forestry which straddles the border. It is currently managed as a block by Forest Enterprise England on behalf of Forest Enterprise Scotland, and it has been agreed that this block will continue to be managed by Forest Enterprise England on behalf of Forestry and Land Scotland—so the current arrangements will roll forward.

Scotland Bill

Lord Davidson of Glen Clova Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Kerr of Kinlochard]

I very much hope that the Government will give a serious, considered reply to the noble and learned Lord, Lord Hope. If it involved suggesting coming back at Third Reading with some variant of his wording, I would want to listen to that. But, it seems to me that we simply cannot do what the noble and learned Lord, Lord McCluskey, is asking for, which is to drop this altogether. It is an important point in the Smith report that the House of Commons has gone along with, and on which all the political parties agree. The idea of just dropping the clause is not possible, but we need to write one that is not defective.

[Lord Davidson of Glen Clova (Lab)]

My Lords, normally when the loyal Opposition hear valid and powerful arguments from many noble Lords and noble and learned Lords, they listen acutely and seek to put their weight behind those observations, particularly when they are put into an articulate amendment. However, in this case we will not support these amendments.

I suspect that the question “Why?” might come from the lips of certain noble Lords. It is our judgment that the political imperative suggests this position: if any of these amendments are passed by this House, they will be overturned in another place. It will be immediately accepted that that would be wholly undesirable. I notice the unfortunate distortion of the normally calm features of the noble Lord, Lord Forsyth, but he will fully understand, as one of the United Kingdom’s most able politicians over many years, that political imperative can be of considerable importance.

[Lord Forsyth of Drumlean]

I was puzzled by the noble and learned Lord’s assertion that he would be unable to support this because throughout endless hours of consideration of this matter, we have been told repeatedly that the Opposition are here to ensure that the letter of the Smith commission is delivered. The amendment in the name of the noble and learned Lord, Lord Hope, would do precisely that. We have been correctly advised that the clause is defective and does not do that. So the Labour Party will actually prevent the implementation of the Smith commission proposals. I venture to suggest that that is an albatross that some people may hang around its neck.

[Lord Davidson of Glen Clova]

I appreciate that the ornithological reference might necessarily be unhelpful to the party that I represent at this particular moment in time. However, the wording of the Smith commission is not to be treated as if every single word has been precisely defined. One of the great traditions of the British approach to such matters is to retain a certain flexibility in the way one deals with issues as and when they arise. When they arise, one occasionally notices other constitutional observations.

[Lord Cormack]

I am extremely grateful to the genial noble and learned Lord, but is he really saying that if this House exercises its constitutional right and sends something back to the other place it is acting in some way ultra vires? Surely if the other place decides that it does not want to accept the advice of your Lordships’ House we can reflect on that. The noble and learned Lord knows my constitutional position there. But for this House not to use the very limited authority that it has and pass a clause that is totally unsatisfactory and, in the opinions of many noble and learned Lords, nonsensical—can he advise us on what he is doing?

[Lord Davidson of Glen Clova]

The noble Lord raises a matter that goes well beyond what I hoped we were going to be discussing. He is opening up the entire relationship between this House and the other place.

[Noble Lords]

Oh.

[Lord Davidson of Glen Clova]

Oh, yes, he is. I hear observations that I am mischaracterising him, but no doubt the noble Lord, Lord Cormack, will be able to look after himself in due course. If he is suggesting that I am proposing that the House of Lords should never do anything that would go against the other place, then that is an entirely incorrect assessment of what I am saying. What I am trying to get across is a recognition that we are dealing here with something that is very much sui generis. This is terrain in which we have not normally been operating. This is an area of legislation which goes well beyond the situation that underlies the observations of the noble Lord, Lord Cormack, about the relationship between the two Houses of Parliament.

[Lord Wallace of Tankerness]

The noble Lord is basically saying that, albeit various people, not least the noble Lord, Lord Norton of Louth, have said that Clause 2 does not actually deliver the Smith commission, the Labour Party is prepared to live with the situation whereby the Smith commission proposals are not delivered, for some political imperative. I am not quite sure what that political imperative is. If it is a question of time, ping-pong would not take weeks. It is still perfectly possible to get the Bill delivered by the Easter Recess. I am not quite sure what that political imperative is, particularly if it is not going to deliver what, up until now, we thought the Labour Party wanted to deliver.

[Lord Davidson of Glen Clova]

The noble and learned Lord wants to know whether I am correct in identifying a political imperative. These are matters of judgment and in judgment, one can be right and one can be wrong as matters go by. There is an assessment made in this judgment and when one makes a judgment and comes to a particular conclusion, if that conclusion is one that one wishes to live with and follow through, well, one does that. I think that that is something that the noble and learned Lord will appreciate, because he has spent many years in politics and has had to realise that these political judgments have to be made. These political judgments can sometimes be right and sometimes be wrong, but this is the judgment that we have made. It would be most unfortunate, on this of all areas, were this to involve tension, difficulty, a contest, friction between this House and the other place. On this point, therefore, we adhere to the position we have thus far asserted.

Let me make another point. Clause 2 states:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

That is language that is, at least, redolent of what a convention might be. It is the type of language that has been seen in the past in legislation in Northern Ireland and elsewhere—it is not a complete innovation. It is language that can be understood, and understood by courts. However, the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, for example, states:

“But the Parliament of the United Kingdom may not pass any measure applying to Scotland that makes provision about a devolved matter without the consent of the Scottish Parliament”.

We have heard much in this House on the extent of this Parliament’s sovereignty. Might it not possibly be seen—I would be very interested to hear the views of the noble Lord, Lord Norton of Louth, on this—that this language, saying what the Parliament of the United Kingdom may and may not do, is itself an attempt to trench on the sovereignty of the UK Parliament? Therefore, if one is going to find tremendous support for such an amendment, one has to be conscious of what one is doing constitutionally, because this would appear to be another innovation.

The Opposition are not against innovation. Some innovations can be good, some innovations can be bad; people adopt positions here and there depending on their assessment of those various innovations. However, this innovation is one we are disinclined to immediately jump into and support.

[Lord Forsyth of Drumlean]

I appreciate that we are on Report, but when the noble Lord describes this as an innovation which is undesirable, is it not one that was recommended by the Smith commission?

[Lord Davidson of Glen Clova]

I am slightly surprised that the noble Lord offers such support for this amendment. I will explain my surprise. I do not see this as an exact simulacrum of what Smith proposes. This is an attempt to change the sovereignty of this Parliament. I do not understand that the Smith commission was quite so ambitious in the way it wished to proceed. I hope that that answers that question.

[Lord Thomas of Gresford]

I am attempting to follow the noble Lord down the tortuous passes of his philosophical musings, but does he not realise that there is conflict and tension today between the Welsh Labour Government and the Conservative Welsh Office because the areas of legislative competence are frayed, or overlap, or whatever? We must have something that is certain and he is defending something that is clearly utterly uncertain and ripe for the Supreme Court.

[Lord Davidson of Glen Clova]

There is a view, of course, that the Supreme Court is developing a constitutional role and that that is a matter that might be an adornment to the developing UK constitution. The noble Lord, Lord Thomas, suggests that these are philosophical musings, but the philosophical musing comes entirely from the other side. I am looking at the political reality of how this can be dealt with in relation to Scotland. There may be many interesting and complicated issues in Wales, and I would be fascinated to hear more about these in due course, but at the moment I am trying to put forward our position on these amendments.

Considerations of political imperative, therefore, are very much to the fore and we will accordingly not support these amendments. I hope I have dealt with the various issues that have been raised, but I see the noble Lord, Lord Tebbit, shaking his head. If there is a particular point he wishes me to address, or there is any issue that troubles him, I would be happy to do so.

[Lord Tebbit (Con)]

I am grateful to the noble and learned Lord. Will he just come to the point and meet the point that has been ably expressed by a number of noble and learned Lords? He is just waffling. Is he trying to talk it out until 11 pm?

[Lord Davidson of Glen Clova]

The suggestion that I am waffling is one that I do not find wholly offensive.

[Lord Wallace of Tankerness]

The noble and learned Lord asked whether he had dealt with all the issues. He has not dealt with the issue, raised by the noble and learned Lord, Lord McCluskey, and by my noble friend Lord Stephen, of the importance we attach to having some subsection in here which would make the matters non-justiciable. We would welcome the view on that of my predecessor as Advocate-General for Scotland.

[Lord Davidson of Glen Clova]

I shall finish answering the noble Lord, Lord Tebbit, before I come to the interesting point made by the noble and learned Lord, Lord Wallace. I thank him for the name check.

The noble Lord, Lord Tebbit, wanted to know what I was getting at, what my point was and why I was waffling, to use his word. I am trying to deal with various issues that seem to trouble many noble Lords and many noble and learned Lords. The point I am trying to make—the simple nub—which he will readily understand, is that we perceive, and our judgment is, that the political imperative suggests that these amendments be not passed in this House. It is as simple as that.

To deal with the point raised by the noble and learned Lord, Lord Wallace of Tankerness, about whether the matter may be looked at from the point of view of the purely legal analysis, in looking at this clause now—we have not always looked at it this way—we see that there is considerable virtue in having the support of the Minister’s statement on how this clause will be perceived by this House, and why this House is putting it forward in these terms. That statement by the Minister will, of course, feature were this matter to come before the courts, where it would be of some consequence in how the court would decide whether this language suggested that the issue was justiciable. I hope that offers a measure of response.

[Lord Wallace of Tankerness]

My Lords, to pick up the noble and learned Lord on that point, I think he is suggesting that a Pepper v Hart statement by the present Advocate-General would put the matter beyond doubt if it came before the courts. But surely the point is that we do not want it to come to the courts at all because that is when uncertainty comes in. Very important matters, such as people’s investment decisions, may be involved and they will not know the outcome until the courts have decided the matter. Our measure, which has stood the test of time since the Parliament Act 1911, would mean that the issue would never come to the courts at all, because, if it does, the genie is out of the bottle.

[Lord Davidson of Glen Clova]

I feel that genies should not come out of their bottles; they should probably stay in their lamps. However, the point here is that, when one looks at this clause, no matter how one seeks to alter it, there is the potential—such are the fertile minds of our legal colleagues—to find one way or another in which any issue can be brought into court. My noble and learned friend the Advocate-General for Scotland, his predecessor and even his predecessor have frequently had to deal with issues by saying at no stage was this ever intended to go before a court, and yet we found that it did come before the courts, and in those areas the court had to make a decision whether it was a matter that was before the court or not. This is just the way our constitutional arrangements work. That has stood the test of time and it enables the finest minds of the Supreme Court to consider these types of issue. At this point, I will perhaps draw to a close, but if—

[Lord Stephen]

The noble and learned Lord has made many points but I think he would accept that there is very wide cross-party support for the amendments being submitted today on this matter. After the 18 minutes for which he has been on his feet, I think none of us is any the wiser as to what the political imperative to which he refers is.

[Lord Davidson of Glen Clova]

I consider that it has never been the role of the loyal Opposition to increase the wisdom of Members of this House but we often attempt to leave them better informed. If I have wearied noble Lords over these 18 minutes, I apologise, but I offer this one little candle of comfort—I will weary them no more.

[Lord Forsyth of Drumlean]

Before the noble and learned Lord sits down, could it be that the political imperative is that he has been told by the Chief Whip down at the other end of the building, “Under no circumstance accept any amendment, however sensible it be”?

[Lord Davidson of Glen Clova]

Sorry, who is the Chief Whip in the other place? I am afraid it is not a man or woman I have ever met, so if there is some suggestion that I have been “nobbled” and my arm pushed up my back by some person wholly unknown to me, I think I would have noticed. The suggestion that my noble friend Lord McAvoy would in any way try to persuade me of anything—

[Lord Wallace of Tankerness]

Perhaps I can help the noble and learned Lord because his Whips’ Office told my party’s Whips’ Office that is exactly what happened. They have been told by the other end not to support any amendment, however sensible, which would lead to a situation that could result in ping-pong.

[Lord Davidson of Glen Clova]

As every Member of this House—every noble Lord, every noble Baroness—who has spent any time in the other place and has been involved in the political toings and froings will know, what is said between Whips of different parties is normally regarded as confidential. Therefore, while the noble and learned Lord, Lord Wallace, may have an observation that somebody has told him, that is simply a matter for his Whip, I guess. I will try to sit down now unless anyone—

[Viscount Younger of Leckie (Con)]

My Lords, I believe that the House is ready to hear from the Minister.

Scotland Bill

Lord Davidson of Glen Clova Excerpts

Monday 22nd February 2016 Lords Chamber

Moved by

[Lord Davidson of Glen Clova]

77: Clause 20, page 23, leave out lines 4 to 12 and insert “a disabled person or person with a physical or mental impairment or health condition in respect of effects or needs arising from that disability, impairment or health condition.”

[Lord Davidson of Glen Clova (Lab)]

My Lords, I rise to speak to Amendments 77 and 79 in my name and that of my noble friend Lord McAvoy. The focus of Amendment 77 is the current definition of “disability benefit” used in the Bill. The concern is that this may place unnecessary limits on the kind of replacement benefit that the Scottish Government have the power to introduce. The fear is that it may not allow the Scottish Government to introduce a benefit to assist people with very low-level disabilities or those for whom the effect of their disability is largely financial.

We moved this amendment in relation to carer’s allowances at Committee stage in the other place following concerns raised by third-sector organisations. The concern from both Inclusion Scotland and Citizens Advice Scotland has been that the definition of disability might,

“restrict the autonomy”,

of the Scottish Parliament,

“to construct a new system based on empowering disabled people to lead active and productive lives and promoting the human rights of disabled people and independent living”.

Amendment 77 would offer an alternative, broader, more flexible definition of “disability benefit” that would, among other things, allow the Scottish Parliament to introduce a benefit to assist people with low-level disabilities or those for whom the effect of their disability is largely financial.

The Government brought forward an amendment on Report in the other place regarding the “carer’s allowance” definition. However, they do not appear to have done the same in relation to the “disability benefit” definition. True it is that the Ministers, the noble Lords, Lord Dunlop and Lord Freud, have both written to this side of the House trying to clarify the Government’s position. The letter we received from the Minister includes the following,

“by including the phrase ‘normally payable’ at the head of the definition, the provision gives the Scottish Parliament the necessary flexibility to create exclusions or create special categories, for example to enable provision for people who are terminally ill or those with lower needs”.

I do not, of course, doubt in any way the accuracy of the Minister’s statement, but on this side we are still keen to get assurances from the Minister on the Floor of the House and confirmation that the Scottish Government could introduce a benefit to assist people with very low-level disabilities or those for whom the effect of the disability is largely financial. That, in a nutshell, is the position that we adopt in relation to Amendment 77.

Amendment 79 provides for the devolution of the Access to Work scheme. This was an amendment that we moved at Committee stage in the other place. As my honourable friend the Member for Edinburgh South observed in the other place:

“Access to Work provides practical advice and support to disabled people, and their employers, to help them to overcome work-related obstacles resulting from disability”.—[Official Report, Commons, 30/6/15; cols. 1429-30.]

The devolution of the programme to local authorities would certainly allow there to be better tailoring to local needs.

Access to Work is closely aligned with employment support. Several charities, including Inclusion Scotland and the Wise Group, are in favour of Access to Work being devolved to Scotland. ENABLE Scotland observes that the Access to Work scheme is one of the most important elements of the employment support system for disabled people. It gives various examples, such as the British Sign Language interpreters working for deaf employees.

ENABLE Scotland states its position as believing that,

“the devolution of Access to Work is necessary to deliver integrated and accessible Employment Support in Scotland”.

Its position, which we share, is that Access to Work,

“does not currently integrate well with employability programmes”,

that are sometimes not fully delivered by the Department for Work and Pensions. It continues:

“For example, if you are a person on Work Choice you can use Access to Work to get pre-employment support in interviews or agree support whilst transitioning into work. Persons supported by the Employability Fund … do not have access to that support and face increased negotiation and bureaucracy to get the support … Given that post-devolution the employability programmes will not be delivered by the DWP, failure to devolve Access to Work in parallel will limit access for Scottish jobseekers and increase bureaucracy for specialist support organisations and employers”.

The Scottish Council for Voluntary Organisations also supports the devolution of Access to Work. It takes the view that that is necessary to create the integrated accessible form of employment support that it considers, as do we, should be created in Scotland. A women’s charity in Scotland, Engender, has also identified support for devolution of the Access to Work scheme, which it says is necessary for improving overall support for disabled people.

There are four questions that the Minister could assist us by answering. I do not expect immediate direct answers to them all; an answer in writing, in the usual terms, would be fine. These questions are as follows. First an integrated package of employment support measures is essential to ensure the best outcomes for disabled people—I assume that there is no disagreement about that. So what effect will absence of Access to Work in the devolution package have on outcomes for disabled people?

Secondly, will the Minister address the points raised by ENABLE, supported by the SCVO? It says that failure to devolve Access to Work in parallel with the Work Programme and Work Choice will,

“limit access for disabled jobseekers in Scotland and increase bureaucracy for specialist support organisations and employers”.

Thirdly, does he believe that Access to Work complements the employment support programme already being devolved to Scotland? Finally, if the Government are committed to keeping this programme as a reserved matter, does that not make an even stronger case for a Joint Committee on welfare devolution to be set up? That idea is covered in a further amendment, tabled by my noble friend Lord McAvoy.

A number of amendments tabled by the noble Lord, Lord Kirkwood, seem to have a broadly similar intent—to prevent the UK Government from clawing back top-up benefits paid by the Scottish Government through means-testing reserved benefits. We on the Labour side have similar concerns. The Scottish Government should be able to make top-up payments to individuals who have had their payments unfairly reduced, suspended or withdrawn under the UK Government’s sanctions regime.

We accept that Her Majesty’s Government have tabled a significant number of amendments for Report stage that mean that the Scottish Parliament appears to have complete power to create new benefits in devolved areas and top up existing benefits—which, of course, we fully support. However, Labour outlined in the other place our wish for the Scottish Government to be able to make payments to those who have been sanctioned. The Minister may well have already covered that position. Certainly in meetings with him, which were extremely helpful, it has been suggested that the question in relation to sanction is already covered by the legislation. None the less, as with the previous amendment, it would be extremely useful for us if the Government were to confirm that for the record.

We would support Amendment 77J, tabled by the noble Lord, Lord Kirkwood, on definitions of “short-term”. We tabled an amendment in another place, but did not pursue it as we had assurances that the position would be covered by the legislation. Nevertheless, our argument in Committee has been that the inclusion of phrases such as “short-term” would appear to limit the scope of the Scottish Parliament to take action in these areas. In the instance of discretionary housing payment and other discretionary payments, the Government have told us that, in their interpretation, a discretionary payment is a short-term payment. Our argument was that a discretionary payment is just that—a payment made at the discretion of and according to parameters set by the relevant Government. We respectfully suggest that further clarification would be useful from the Minister in that area.

We support the amendments in this group proposed by Her Majesty’s Government, as these are primarily of a technical nature. I beg to move Amendment 77.

--- Later in debate ---

[Lord Dunlop]

The first thing to say is that we do not anticipate problems. That is why I go back to this being a backstop power. The powers to vary are discrete. We shall come on to talk about the amendments regarding a welfare commission, but already close intergovernmental working has been established both at ministerial and official level and a lot of work is going on through visits and teach-ins and the like. Given where we are with universal credit rollout—it is already fully rolled out in Musselburgh; by June it will be rolled out in Inverness and by autumn in another five centres across Scotland—there is an opportunity to look at how these changes and the flexibilities that the Scottish Government have got might actually work in practice. There is a good dialogue between the two Governments to establish what the Scottish Government want to do with these powers and what draft Scottish Parliament universal credit regulations might look like. In terms of dispute resolution, we have already established a joint ministerial group on welfare. That has already proved an effective mechanism for resolving any issues between the two Governments.

I turn to the government amendments. Amendment 77B is technical in nature and ensures that executive competence will be transferred to the Scottish Ministers so that they can make payments of Sure Start, maternity grants, funeral payments, cold weather payments and winter fuel payments when Clause 21 is commenced. Clause 21 provides the Scottish Parliament with legislative competence to create a scheme that would allow it to make payments or provide other assistance for funeral and maternity expenses, and expenses incurred due to cold weather. Without the amendment to Clause 21, executive competence would not be transferred to Scottish Ministers when the clause is commenced. This would prevent Scottish Ministers being able to make payments in respect of Sure Start, maternity grants and all the other payments to which I have referred. This amendment therefore ensures that people in Scotland can be paid these benefits by Scottish Ministers and that payments will be made out of Scottish funds.

Our amendments between Amendment 77P and Amendment 79ZB are again technical amendments. They deal with the way in which existing social security legislation will apply after the transfer of powers under the Bill. The amendments to Clauses 27 and 28 relate to universal credit and put beyond doubt the intention that where regulations are made by Scottish Ministers under the new powers, the Scottish Parliament’s procedure for negative instruments applies. Clause 31 is a technical provision that requires legislation to universal credit to be read as if references to the Secretary of State were references to Scottish Ministers. After careful consideration and since universal credit will remain a reserved benefit administered by the DWP, this clause is not required.

The noble Lord, Lord Kirkwood, mentioned the Social Security Advisory Committee and its role to advise the Secretary of State on relevant matters relating to social security. The Industrial Injuries Advisory Council advises the Secretary of State on matters relating to industrial injuries benefit and its administration. The roles of the SSAC and IIAC are to remain unchanged. Scottish Ministers, however, will not be able to refer their draft regulations to these bodies for consideration. Once legislative competence has been given to the Scottish Parliament it may, if it wishes, put in place separate scrutiny bodies to consider legislative proposals made by the Scottish Government within the scope of the legislative competence and report back to Scottish Ministers. It is for this reason that we do not support Amendment 79ZC, which seeks to change the role of the SSAC to give it a duty to advise Scottish Ministers. We would of course want to put in place arrangements to facilitate information and co-operation between the two Governments.

Finally, Amendments 79ZE, 79ZF and 79ZG will ensure that UK Parliament procedure is converted into Scottish Parliament procedure in relation to the secondary legislation that Scottish Ministers will be able to make in relation to welfare foods. I will move these government amendments and I ask noble Lords to withdraw or not move their amendments.

[Lord Davidson of Glen Clova]

I express my gratitude to the Minister for the clarifications that he has given in relation to disability benefit and its definition. In relation to access to work, I will reflect on the answer he has given and eagerly await the Written Answers. In these circumstances, I beg leave to withdraw my amendment.

Amendment 77 withdrawn.

Scotland Bill

Lord Davidson of Glen Clova Excerpts

Tuesday 19th January 2016 Lords Chamber

Moved by

[Lord Davidson of Glen Clova]

43: Clause 34, page 33, line 18, leave out “may” and insert “must”

[Lord Davidson of Glen Clova (Lab)]

My Lords, I shall speak also to Amendment 46 standing in my name and that of my noble friend Lord McAvoy. These amendments would alter Clause 34, which relates to the devolution of the Crown Estate. Although technical in nature, the amendments are nevertheless important. Not only do they reflect amendments tabled in the other place by my honourable friend the Member for Edinburgh South and the right honourable Member for Orkney and Shetland but they reflect our approach to the Bill more broadly. We fully support the devolution of the Crown Estate but there are a number of outstanding issues on which it would be helpful if the Minister would comment in due course.

By way of background, the Scotland Bill will devolve the Crown Estate Scottish assets and income. The assets include nearly the entire Scottish seabed, 37,000 hectares of rural land, 850 aquaculture sites, the rights to salmon fishing licences, the rights to renewable energy, pipelines and cables on the continental shelf, and residential and commercial properties. In total, they account for 3.9% of the entire Crown Estate revenues and are worth nearly £261.5 million.

Crucially, Clause 34 does not devolve joint investment projects and, before I turn to the specifics of the amendments, I will comment briefly on this. Because only wholly or directly owned assets are devolved, the management of Fort Kinnaird retail park in Edinburgh, in which the Scottish Crown Estate has a 50% interest, will remain the responsibility of the UK Crown Estate commissioners and the revenue that it raises will contribute to the UK Consolidated Fund. When one considers the shareholding that the Crown Estate has in this property, we contend that it should be an asset, in part, of the Crown Estate in Scotland. I would be grateful if the Minister would say whether any assessment has been made of how devolution of the Scottish Crown Estate might affect, indirectly or otherwise, the management or income of Fort Kinnaird.

On the specifics of the amendments, Amendment 43 would replace the word “may” with “must”, thereby reducing the Treasury’s discretion in making a transfer scheme. This would clarify the obvious intent on all sides of the House to devolve the Scottish Crown Estate assets. We understand the reason for the current drafting is that the Treasury requires legislative consent from the Scottish Government in order to transfer assets.

Amendment 44, proposed by the noble and learned Lord, Lord Wallace, also focuses on this, possibly with some rather more interesting additions. The problem with the current wording may be that, as drafted, even were legislative consent given, which I presume it would be, the Bill does not definitely require the formation of such a scheme. I do not believe that this is the intent. Therefore, this amendment would provide a measure of clarity to these proceedings.

--- Later in debate ---

[Lord Davidson of Glen Clova]

My Lords, this has been a useful and quite technical discussion. I thank the Minister for his clarifications, particularly on the use of the term “may”. I am particularly obliged to the noble Lord, Lord Lang, for his historical analysis identifying that “may” means “must”. I pondered whether that means that “must” means “may”, but that is doubtless a question for another day. I was also attracted by my noble friend Lord Gordon clinging to the word “shall”. That seems to have a certain helpfulness to it. I trust the Minister will reflect on the point made by the noble and learned Lord, Lord McCluskey, about the Scottish Parliament and responsibility. It certainly chimes with the notion behind the amendment this side advanced. I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

--- Later in debate ---

Moved by

[Lord Davidson of Glen Clova]

52: Clause 35, page 37, leave out lines 6 to 23 and insert—
““The subject-matter of Part 11, Chapter 1, of the Equality Act 2010 (public sector equality duty).
(none) Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority including appointments to the board of any Scottish public authority. The provision falling within this exception includes provision that reproduces or applies an enactment contained in the Equality Act 2006 or the Equality Act 2010 without affecting the enactment as it applies for the purposes of those Acts. It does not include any modification of those Acts, other than modifications of the types specified in paragraphs (a) to (e)—
(a) provision that supplements or is otherwise additional to provision made by those Acts, and which may enhance but may not diminish the protection and promotion of equal opportunities afforded by the provision made by those Acts;(b) in particular, provision imposing a requirement to take action that the Acts do not prohibit;(c) provision that extends application of the existing powers and duties of, or grants additional powers to, the Equality and Human Rights Commission in respect of provisions made under any part of subsection 149(3) of the Equality Act 2010 (public sector equality duty);(d) provision that requires the Equality and Human Rights Commission to attend the proceedings of the Scottish Parliament for the purposes of giving evidence and to send each annual report of the Commission to the Scottish Ministers and that requires the Scottish Ministers to lay each annual report received before the Scottish Parliament;(e) provisions in relation to candidates at an election for membership of the Scottish Parliament and a local government election in Scotland.””

[Lord Davidson of Glen Clova]

I rise to speak to the amendment standing in my name and that of my noble friend Lord McAvoy. This amendment has a variety of different effects, but the overall intent is to ensure that the Scottish Parliament has the capacity to—I use the term my noble friend would have used had he been here—smash the glass ceiling of equality in public and political life.

The amendment makes provision for the Scottish Parliament to have legislative competence in respect of the public sector equality duty. It also makes provisions for equality of opportunity in relation to the functions of Scottish and cross-border public authorities. It clarifies that the Scottish Parliament can make modifications to the Equality Acts 2006 and 2010, but only in so far as they enhance the protection and promotion of equal opportunities. It makes provision for the powers of the Equality and Human Rights Commission to be applied in relation to any modifications to the aforementioned Acts as well as increasing the accountability of the commission to the Scottish Parliament. Crucially, it would also allow the Scottish Parliament to bring forward the necessary competence for gender quotas in relation to candidates standing for the Scottish Parliament and at local government elections.

The Bill before us already includes the ability to legislate for women’s representation on public boards, which of course is welcome, but we want to see that go further. We want to ensure that there is a commitment to bring about equality in every walk of Scottish life, including in politics itself. We are now in a position where the economic case for women’s equality in public life has been made and won. It could not be clearer. One of the contributors to this change in attitude is found in the work of my noble friend Lord Davies of Abersoch. His contribution to the debate should not be understated. In his final report he stated:

“It is a sign of our evolution ... that few British business leaders now ask why we need more women at the top, the business case is raised less and less as energies are now focused on how to achieve women in leadership positions and how to sustain the change”.

He also says:

“The business case is even stronger today as Chairs report on the positive impact women are having at the top table, the changing nature of the discussion, level of challenge and improved all round performance of the Board”.

However these successes should not be limited to one particular field. Scotland has come a long way on equality, with women leading the majority of the political parties in the Scottish Parliament, a female First Minister and a female Presiding Officer. But we say that that is still not good enough. In the Scottish Parliament only 36% of MSPs are women, while local government is falling way behind, with apparently only around 20% of women elected councillors. It is this discontinuity that lies behind the notion of candidate quotas in parliamentary and local elections.

I stress that this is not a party-political point, nor should it be. For us to bring about a change in culture and attitudes, we need support from all political parties and buy-in from a cross-section of our society. This is why the tireless work of campaigns such as Women 50:50 is so important. I pay tribute to its contributions in this field and thank it for its assistance in advance of Committee.

At present there are too many barriers preventing women reaching their full potential, in Scotland and indeed across the UK. The low number of women studying STEM subjects and the prevalence of low pay among women in Scotland fortify this point. One is seeking with this amendment to address this particular obstacle. Kezia Dugdale, the Labour leader in Scotland, is doing just that, along with Members across the Scottish Parliament, with her commitment to ensuring that at least half of Scottish Labour’s new candidates for this year’s Holyrood elections will be women. It is a crucial commitment, but we now need the tools to get on and deliver on a wider scale. We believe that this amendment is the mechanism for doing that. I beg to move.

[Lord Stephen (LD)]

My Lords, I shall speak to the amendments in my name and that of my colleague, my noble and learned friend Lord Wallace of Tankerness. As has been stated, Clause 35 relates to the important issue of protection from discrimination and the promotion of equality of opportunity. These are fundamental markers of a fair and decent society. The protections in the law should be strong, and the meaning and effect of Clause 35 must be clear. I believe that we have not yet achieved the parity that is both important and required.

The Equality Act 2010 is widely held to be perhaps the best anti-discrimination law in the world. Thanks to the Act, wherever you live or work in Great Britain, you have a right to fair treatment regardless of your sex, race, age or sexual orientation or if you are disabled. Clause 35 needs to be explicit that the important protections in the Equality Act will be maintained right across Great Britain, and that modifications should be permitted by the Scottish Parliament only where they enhance the protections in the present legislation. As currently drafted, Clause 35 does not yet achieve that. While there is an attempt to differentiate between modifications to the Equality Act 2010, which are not permissible, and additions, which are, these provisions lack the required clarity. I thank the Equality and Human Rights Commission for its support and advice in framing these amendments.

Amendment 52A would make it absolutely clear that the Scottish Parliament had powers to increase protection from discrimination, harassment and victimisation by Scottish public bodies by, for example, adding new protected characteristics, prohibiting dual or multiple discrimination or enhancing remedies. It would also ensure that existing productions could not be eroded in Scotland.

The public sector equality duty is a positive duty, requiring public authorities and those delivering public functions to have regard to how they can promote equality of opportunity. It has great potential to play a transformative role for those experiencing disadvantage and discrimination. Amendment 52A would give the Scottish Parliament greater freedom to require Scottish and cross-border bodies that deliver public services in Scotland to do more to tackle entrenched inequality. We have already seen how the stronger specific equality duties in Scotland have driven greater transparency on the pay gap, for example, which means that it is clearer where action now needs to be taken. To devolve legislative competence for the general equality duty would give the Scottish Parliament far greater freedom to require its public service providers in Scotland to do even more positively to promote equality of opportunity.

The amendment would also ensure that the Smith commission commitment on gender quotas is delivered, while ensuring that the Scottish Parliament could not go beyond the extent to which positive action is permitted by EU law. We want to increase the efforts made to ensure that women have fair representation on public boards, in Scotland and elsewhere in Great Britain, but this must not be achieved through disproportionate barriers to participation by men.

On political representation, Amendment 52A, taken together with Amendment 52E, would enable the Scottish Parliament to allow political parties to take stronger action to ensure greater diversity in their selection of candidates for the Scottish Parliament and Scottish local government elections. However, the Scottish Parliament would not be able to legislate to extend the use of shortlists restricted to those sharing other protected characteristics. While this approach may be appropriate for women, who make up over 50% of the population, it would be disproportionate if it were to be used for far smaller groups, as it would thereby exclude very large sections of the population from such shortlists. These amendments reflect the position in the Equality Act 2010, which was widely debated and agreed by all parties at the time to be a proportionate, fair and appropriate position.

Amendment 52B relates to diversity on public boards. It would remove an interpretation of the term “protected characteristic” which would limit the ability of the Scottish Parliament to encourage diversity on public boards with regard to any characteristics not currently protected by the Equality Act 2010, such as marital status. The Scottish Parliament should have the power to go further than the current protections, should it wish, on this important issue. Amendment 52C may be covered by the government amendments, and I look forward to the Minister’s clarification on this and his response to the other issues that I have raised.

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I hope that I have been able to clarify the position, and I ask that the parties opposite withdraw their amendment.

[Lord Davidson of Glen Clova]

I thank the Minister for his explanations both generally and in relation to the Government’s technical amendments. We on this side are pleased to note that Her Majesty’s Government have no ideological objection to gender quotas, and we will take that away and consider it. Accordingly, I beg leave to withdraw the amendment.

Amendment 52 withdrawn.

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[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords—

[Lord Davidson of Glen Clova]

I know that the noble and learned Lord is enthusiastic to get to his feet. We on this side see some force in the amendments in the name of the noble and learned Lord, Lord Wallace, but I will confine myself to only one aspect. He observed that the question of fees in employment tribunals and Employment Appeal Tribunals might arise in a different sense were these tribunals to be fully devolved. We see the current employment tribunal fee system, which has been widely criticised by legal professionals, academics and so on, as constituting a real and true barrier to justice.

If employment tribunals are fully devolved, Scottish Ministers would have the capacity to establish in the process, in conjunction doubtless with the trade unions and ACAS, the possibility of scrapping the fees that currently apply in Scotland. Perhaps the Minister might agree that that would improve access to justice in Scotland.

[Lord Keen of Elie]

I am obliged for the scrutiny that your Lordships’ House has given Clause 37, in particular to the noble and learned Lord, Lord Wallace of Tankerness, for highlighting issues with respect to tribunal practice and procedure.

Let us be clear: Clause 37 provides a mechanism for enabling the transfer of functions of reserved tribunals to the Scottish tribunal system. The clause recognises the implications not only of paragraph 63 of the Smith commission agreement, but of paragraph 64, which recommended that the law providing for the underlying reserved substantive rights and duties governing the matters heard by these tribunals would continue to be reserved. Therefore, Clause 37 provides that these functions should be transferred by means of an Order in Council. That provides a degree of flexibility that would not otherwise be available. As the noble and learned Lord, Lord Wallace, observed, it is not really practicable to contemplate the transfer in one unit, as it were, of all these functions. The Order in Council will provide for the transfer of those functions, subject to conditions, that may be necessary to ensure the continuing effect of delivery of overarching national policy, and the underlying rights and duties that arise in areas of the law that continue to be reserved.

Amendments 52F and 52G are concerned with the transfer in respect of the employment tribunals and employment appeal tribunals. It is considered appropriate that this should proceed by way of Order in Council. Indeed, a draft Order in Council has been made available for consideration regarding this matter.

Let me assure the Committee of two things. First, any conditions or restrictions included in an Order in Council must be approved by both this Parliament and the Scottish Parliament before such an Order in Council can be made. Therefore, there will be scrutiny of any conditions attaching to such a transfer in both Parliaments. That is a consequence of the amendment proposed by Clause 37(2), which means that the form of Order in Council will be subject to the approval specified as “Type A” in Schedule 5 to Part III of the 1998 Act. Secondly, the Government do not agree that the terms of transfer of all reserved tribunal functions should be completely unqualified. There are circumstances in which it will be appropriate to ensure that functions can be undertaken in a way that maintains some continuing effective delivery of reserved legal matters—that is, of overarching national policy.

In these circumstances, it is proposed that an Order in Council in respect of employment tribunals will allow for consideration by the Scottish Government of the matter of fees in respect of those tribunals. That is not to say that in every instance where there is a transfer by means of Order in Council the matter of fees will not be addressed, but in the case of employment tribunals and employment appeal tribunals, I can say to your Lordships that the matter of fees will be for the Scottish Government and will not be reserved in any respect.

Reciprocity between the tribunals is a matter that will be worked out in the context of each Order in Council, and will certainly be the subject of discussion with the Scottish Government so far as any transfer is concerned.I am not aware at present of there being any specific statutory provision for such reciprocity to take place. I am aware that, as a matter of practice, tribunal judges, who are tribunal judges within the UK tribunal system, sit in both Scotland and England. There may be distinct benefits in attempting to ensure that that continues.

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Moved by

[Lord Davidson of Glen Clova]

53: After Clause 41, insert the following new Clause—
“Obstructive parking
(1) In Part 2 of Schedule 5 to the Scotland Act 1998, in section E1 (road transport), after “Exceptions”, insert—
“( ) The subject matter of sections 19 to 22 of the Road Traffic Act 1988 (stopping on verges, etc, or in dangerous positions, etc).
( ) The subject matter of section 41(5) of the Road Traffic Act 1988 (regulation of construction, weight, equipment and use of vehicles) in so far as it relates to the making of regulations making it an offence to cause or permit a vehicle to stand on the road so as to cause any unnecessary obstruction of the road.”
(2) After section 51 of the Road Traffic Offenders Act 1988 (fixed penalty offences), insert—
“51A Offences under the Road Traffic Act 1988
(1) Any offence in respect of a vehicle under regulations made by Scottish Ministers under section 41(5) of the Road Traffic Act 1988 (regulation of construction, weight, equipment and use of vehicles) is a fixed penalty offence for the purposes of this Part if it is specified as such in those regulations, but subject to subsection (2).
(2) An offence under an enactment so specified is not a fixed penalty offence for those purposes if it is committed by causing or permitting a vehicle to be used by another person in contravention of any provision made or restriction or prohibition imposed by or under any enactment.
(3) Before proposing a change in regulation of a subject matter falling under this section, Scottish Ministers shall—
(a) consult the Secretary of State, and(b) publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom.””

[Lord Davidson of Glen Clova]

My Lords, I rise to speak to Amendment 53 standing in my name and that of my noble friend Lord McAvoy. At present, the Scottish Parliament has control over much of road safety. Indeed, the Smith commission recommended the following:

“Remaining powers to change speed limits will be devolved to the Scottish Parliament. Powers over all road traffic signs in Scotland will also be devolved”.

Clauses 39 and 40 reflect that recommendation by devolving full powers over the making of road signs and speed limits. However, as third sector organisations and Members in the other place have made clear, the Scottish Parliament does not have legislative competence over pavement parking. Amendment 53 would rectify this anomaly. The intended result is that parking offences such as parking on pavements, or by dropped kerbs, and double parking can be enforced by the Scottish Parliament.

At first blush, this may seem a somewhat picayune topic. However, I am grateful to both Mr Joe Irvin, on behalf of Living Streets Scotland, and the organisation Guide Dogs Scotland for their briefing, which demonstrates that this is a matter of significance. Pavement parking can be dangerous for pedestrians, especially people with sight loss, parents with pushchairs, wheelchair users and other disabled people. People with sight loss are particularly affected, as they can be forced into oncoming traffic which they cannot see. A survey by Guide Dogs Scotland showed that 97% of blind or partially sighted people encounter problems with street obstructions, and 90% of those experience trouble with vehicles parked on pavements. Pavements are not designed to take the weight of vehicles, and cars cause paving to crack and the tarmac to subside. This damage makes pavements uneven, creating a trip hazard for pedestrians, particularly the blind and partially sighted.

The cost of repairing pavements is, of course, a burden for local authorities. In London, there has been a general prohibition on pavement parking since 1974. Local authorities are responsible for civil parking enforcement and they have powers to make exceptions on a street-by-street basis. As my honourable friend the Member for Edinburgh South has said:

“Legislation to harmonise the law on pavement parking would mean that there is one law for everyone and would send a clear message that putting pedestrians in danger is not acceptable. Parking on the footway should only be permitted where a local authority determines that it is both necessary and safe to do so”.

I trust that this point, at least, resonates with the Government’s ambition to give local authorities greater autonomy over their own affairs. The amendment would allow parking legislation to proceed in the Scottish Parliament and enable local authorities and police to manage the streets more as communities wish.

Responding to a debate on this issue in the other place last month, the Parliamentary Under-Secretary for Transport stated that,

“it would not be without new cost burdens for local authorities. They would have to remove any existing local prohibitions, taking down signage, and then review every road in their areas to establish where limited footway parking should still be allowed, to avoid congestion, before going through the process of passing resolutions, putting down road markings, and erecting appropriate signage”.—[Official Report, Commons, 4/12/15; col. 659.]

However, these concerns do not take into account the savings that would be made in maintenance costs for local authorities which, as we know, have to spend millions of pounds a year on repairing cracked pavements which have been damaged by vehicles.

The amendment would resolve any issue of competency and enable an impact assessment of the changes in comparison with the rest of the UK, which might have an overall benefit for understanding. This is significant, because recent efforts, including two Private Members’ Bills—and an upcoming Department of Transport round table on the issue—have focused wholly on England and Wales. In his response, will the Minister at least give an undertaking that relevant Scottish representatives will be invited to these discussions in future? Both the Scotland Office and the Scottish Government agree to the principle of devolving these powers, subject to agreement. There is agreement from this side of the House. I beg to move.

[Lord Steel of Aikwood (LD)]

I support subsection (3) of the new clause proposed by the amendment moved by the Official Opposition. I hold a number of offices in motoring organisations and I support the thrust of the clauses which the Committee has just passed, and the one we are discussing now, which give the Scottish Parliament more jurisdiction over road traffic management in Scotland. However, I hope when that happens they will be sensible and not introduce differences for difference’s sake, remembering that motorists in this country travel frequently across the border from England into Scotland and vice versa. It would create an intolerable situation if they were to go out of their way to make differences for the sake of it. I like subsection (3) because it requires that, before Scottish Ministers make any change in regulation, they should consult the Secretary of State and,

“publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom”.

That is an important safeguard and I therefore support the amendment.

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It is not clear that the amendment we are discussing would amend the law in a way that would address the issue. On that basis, I do not believe that it represents the best way forward but I again reassure your Lordships that we are working to resolve this as quickly as possible. Given that we are discussing this issue with the Scottish Government, and given our expressed preference to resolve it, I urge the noble and learned Lord to withdraw his amendment.

[Lord Davidson of Glen Clova]

I thank the Minister for his reply. I would observe, however, that the noble Lord, Lord Steel, made a good point about the temptation within the Scottish Parliament to legislate difference for difference’s sake. One trusts that as the Scottish Parliament matures, it will resist that temptation. When it comes to resisting temptations, I will resist that to involve myself in the discussion either of Gaelic or the B955, and accordingly I seek leave to withdraw the amendment.

Amendment 53 withdrawn.

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[Lord Bruce of Bennachie (LD)]

My Lords, I rise to move this amendment in the name of my noble friends, with apologies to the Committee. I have not taken part in deliberations on the Bill so far because when it was last before the House, I had not made my maiden speech. Noble Lords will, however, understand that I have a very direct interest in it as a former leader of my party in Scotland who negotiated some of the original agreements for the first Scotland Act and the creation of the Scottish Parliament.

These amendments relate to gaming regulations. They have been tabled to try to ensure that the Scottish Government have a clear line of responsibility and that there is no confusion between the two Governments. The first two, essentially, would ensure that the Scottish Government have the right to vary the number of gaming machines regardless of the stake they carry. As it stands, the Bill specifically relates to a stake of more than £10. Our concern is that we need to be able to ensure that there is a clear line of authority, that the Scottish Government have the right to regulate all gaming and that there is no confusion about that.

It is important to recognise where Clause 49 devolves, by way of an exception from the current reservation in Schedule 5 to the Scotland Act 1998, power to vary the number of gaming machines authorised by a betting premises licence granted by a licensing board in Scotland where the stake is more than £10. But the Smith commission specifically stated:

“The Scottish Parliament will have the power to prevent the proliferation of Fixed-Odds Betting Terminals”.

The Committee will understand the pain and disastrous consequences that these machines have caused some people both north and south of the border. That legitimises the reason to ensure that the power exists to regulate them. These machines have been described as the crack cocaine of gambling because they are so addictive. It is possible for people to lose substantial sums in a very short time. It would be unfortunate if there were a diversion of power and authority, which the exception currently in the Bill seems to produce. That is the first point. These two amendments would remove the limitation of £10 and give the authority to the Scottish Government to regulate and reduce the number of all machines, regardless of the size of the stake.

The second is the exception that basically denies the Scottish Government the right to regulate those licenses that have already been awarded. The current exemption states:

“The amendments made by this section do not apply in relation to a betting premises licence issued before the section comes into force”.

Once it becomes apparent that, under the new legislation, the Scottish Government have the power to regulate gaming machines but not to regulate those that were licensed before the power was granted, people in Scotland will likely regard that as a slightly untoward situation.

I appreciate that people will argue that there are difficulties associated with revoking licences that have previously been issued, but it seems to me that that is nevertheless a matter for the Scottish Government to determine in the future. They need to make a judgment as to whether there are any practical difficulties. Why should the current legislation deny the Scottish Government the right to make that decision?

Essentially, these amendments seek to give a power to the Scottish Government to regulate all gaming machines regardless of the stake, to do so in a way that enables them to limit the number of machines, and to be able to make changes to those that were licensed prior to the Act coming into force. On that basis, I commend these proposals and I beg to move.

[Lord Davidson of Glen Clova]

I rise to speak to Amendments 55 and 57 in my name and that of my noble friend Lord McAvoy. The amendments would require licensing standards officers in Scotland to be recognised as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005. In its submission to the Scottish Parliament’s Local Government and Regeneration Committee’s call for evidence to the inquiry into fixed-odds betting terminals carried out in August last year, the Law Society of Scotland outlined its concerns. Those concerns, previously raised with the Gambling Commission, are whether a licensing standards officer appointed under Section 14 of the Licensing (Scotland) Act 2005 has the power to carry out any of the enforcement activities under Part 15 of the Gambling Act 2005 in respect of both alcohol licensed premises and gambling licensed premises.

Unlike in England and Wales, the licensing authority in Scotland is the licensing board, which has no officers or employees. Licensing standards officers are officers of the local authority, not of the licensing board. This is confirmed in the Gambling Commission’s advice note on the role of authorised persons in Scotland and states that the enforcement powers contained in the Gambling Act cannot be exercised “as of right” by an LSO. As an authorised person, an LSO would be entitled to:

“Enter premises for the purposes of discovering whether facilities for gambling have been … provided, whether the premises are licensed for gambling and whether the terms and conditions of any licence are being complied with”.

In addition, LSOs would have powers to,

“inspect any part of the premises … to question any person on the premises; to require access to and copies of written or electronic records kept on the premises; to remove and retain items which may constitute or contain evidence”.

Additional legislative competence is being devolved to Scotland in this area, and therefore we suggest that it is vital that the Scottish Parliament is given all the necessary resources to manage these increased responsibilities. That, we say, is exactly what Amendment 55 does. The authority of licensing standards officers must be beyond any doubt, and that is what the amendment seeks to achieve.

Separately, I turn now to the issues raised by the noble Lord, Lord Bruce of Bennachie. In setting the £10 limit, we suggest that the Government have failed to meet the recommendations of the Smith commission. We would be keen to know why a £10 threshold has been set. Is it perhaps that the Government wish to roll out a similar policy across the whole of the UK? That may be understandable. However, not only do fixed-odds betting terminals with a stake of less than £10 remain the responsibility of the UK Government but, crucially, the maximum stake threshold does not cover other reserved matters such as the speed of play or the type of game being played. The existence of a threshold would allow addictive casino games to be placed in Scottish bookmakers without recourse to the Scottish Government. That is plainly of concern. What, we ask the Minister who is to reply, is the policy justification for this aspect in Scotland?

Responding to a question on this issue in the other place, the Secretary of State for Scotland said that he was “reflecting” on it. At what stage are those reflections, and might the Minister explain how the Government’s proposals are in keeping with the Smith commission’s recommendation that the Scottish Parliament be empowered to prevent the spread of fixed-odds betting terminals? I look forward to his response.

Scotland Bill

Lord Davidson of Glen Clova Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Keen of Elie]

It has a purpose inasmuch as it determines that there cannot be abolition without a referendum. I am simply making the point that, as this is a sovereign and supreme Parliament, it could decline to legislate in accordance with the terms of that referendum result. However, politically that just would not happen.

[Lord Davidson of Glen Clova (Lab)]

Perhaps I may intervene. The noble and learned Lord—I was going to say “my noble and learned friend” but he is not in this context—has made it entirely clear, beyond peradventure, that this Parliament may do what it chooses because it is sovereign. When he says that this Parliament makes a declaratory statement, that is within its sovereign power. Surely that is the end of this point. If Parliament decides to make this declaration, then so be it.

[Lord Keen of Elie]

I am obliged to my noble and learned friend. It seems to me that we make no further progress on this point, notwithstanding the further observations of the noble Lord, Lord Purvis. I simply underline the sovereignty of this Parliament, and nothing in Clause 1 derogates or takes away from that. That is the bottom line. It is necessary to make progress with this Committee debate rather than to stay in still waters on one sterile point. Therefore, at this point I urge the noble Lord to withdraw his amendment.

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[Lord Davidson of Glen Clova]

I take the point that issues of politics can intrude into questions of drafting, but if the noble Lord looks at Clause 2 he will see that the words—I hope I am not stealing his thunder in this regard—“it is recognised” are also found there. Does he take exception to that?

[Lord Forsyth of Drumlean]

I was not taking exception to anything. I was simply suggesting to the Government that they got it right when they added the words, “it is recognised” to the original Bill, and they got it wrong when they took them out. Fortunately I am not a lawyer, but as a layman, removing the words “it is recognised” indicates that no other party is involved in considering the status of the Parliament.

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[Lord Hope of Craighead]

My Lords, perhaps it would be helpful for me to speak to my Amendment 12, which in effect restates in combination the points just made in support of Amendments 11, 15 and 16. I will also refer to Amendment 20, which deals with a related issue.

I think I saw that the noble Lord, Lord Lang, was about to rise to his feet and the background to my Amendment 12 is paragraph 38 of the Constitution Committee’s report, which draws attention to problems with the Sewel convention as his committee saw them. One problem was the use of “normally”, which gives rise to doubt as to what exactly that means. There was also the need to clarify the reach of the convention, which was the point just made in support of Amendment 11 and its related amendments. My Amendment 12 puts together in a package the same point that was referred to on those other amendments.

Amendment 20, however, deals with an issue which is closely related to existing practice. It refers to a:

“Duty to consult the Scottish Government on Bills applying to Scotland”.

It says, shortly, that:

“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.

It is intended to reflect what I understand to be the existing practice and to follow on the points made in relation to restating Clause 2 in appropriate statutory language.

I should make it clear, as I did earlier on this afternoon, that the amendments to which I am speaking are in words that were in effect provided for me by the Scottish Government because they were tabled in June this year, in advance of Committee in the House of Commons. But I restate that I do not speak to these amendments on behalf of anybody other than myself; I simply see them as sensible amendments which have merit on their own wording. It is with that in mind that I speak to these two amendments.

[Lord Davidson of Glen Clova]

Could the noble and learned Lord indicate what the Scottish Government see as particularly virtuous about the formula that he suggests in this amendment?

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[Lord Davidson of Glen Clova]

My Lords, there has been a widespread and interesting debate on this very important area of legislation. The noble Lord, Lord Norton, said that the debate had been useful to move matters forward, and I respectfully agree. It has provided the Minister with a smorgasbord of possibility.

The noble Lord, Lord Stephen, is correct in identifying the utility in having clarity where the UK Government may or may not have power where legislative consent Motions may come into being. That is quite clear. The alternative that is proposed by the noble and learned Lord, Lord Hope of Craighead, is a carefully laid out analysis of what the actual problem has been and how it may be converted into statute. If one is going down the route of statute rather than maintaining convention in place, this appears a helpful and clear way forward.

The fact that the executive competence of the Scottish Parliament comes into play is a matter that has troubled people from time to time. One example might be the position of Scottish law officers. In Scotland, Ministers are in charge of day-to-day management of prosecution. Some people might think that that was anomalous. In fact, had the noble and learned Lord, Lord Wallace of Tankerness, been here this evening—he is in a more illustrious place—he would recollect saying many years ago that the position of the Scottish law officers in being prosecutors and Ministers was anomalous. Those are the sort of issues that with this approach are clearly put back into the Scottish Parliament to be dealt with by either the Parliament or the Scottish courts.

As for the problems that have arisen when legislative consent Motions have been deployed, they have in fact worked extremely well over 15 years. The notion that in some way they have subverted the sovereignty of the United Kingdom and this Parliament is, I would suggest, somewhat of a chimera. As the Minister has already indicated on a number of occasions, the sovereignty of this Parliament has not been subverted, and is not subverted. So on the notion in the amendment proposed by the noble Lord, Lord Lang of Monkton, that sovereignty should be made absolutely clear, on this side of the House we would accept what the Minister has said repeatedly—and we have that before us, if we look at Pepper v Hart—that this Parliament remains sovereign.

On the vexing question of the word “normally”, we support its deletion. We appreciate that the word, despite the helpful guidance from the noble and learned Lord, Lord McCluskey, is not easily understood in applying matters of statutory interpretation. The noble and learned Lord, Lord Mackay of Drumadoon, was a witness and saw the uttering of the legislative consent words, and he very helpfully set out that words can appear without necessarily having the fully considered import that a draftsman might bring to bear. The noble Lord, Lord Empey, made the point very clearly in the context of Northern Ireland. So although it may be thought by some, possibly, that deletion of “normally” is in fact an extension of legislative consent, we on this side would support it. If it is seen as in some way increasing a fetter on Ministers, so be it in order that clarity might be produced.

We oppose Amendment 18 advanced by the noble Lord, Lord Cormack, on the basis that we see that the UK remains the UK. If there is war or a national emergency, the constituent parts of the United Kingdom can be relied on to pull together. We also oppose Amendment 17, proposed by the noble Lord, Lord Forsyth of Drumlean, perhaps unsurprisingly. The legislative consent Motion procedure has been successful over 15 years; either of the amendments proposed, setting out the statutory basis of the legislative consent Motion, would resolve the issue but there has not been a debate about this being an unsuccessful mechanism. It has worked not as a way in which to pose the Scottish Government against Her Majesty's Government but, most of the time, has resulted in co-operation, with the Scottish Government bringing issues to Her Majesty’s Government for discussion.

[Lord Forsyth of Drumlean]

Has the noble and learned Lord not seen the statements made by senior Ministers in the Scottish Government to the effect that, if they do not get what they want out of the fiscal framework, they will veto the legislation and prevent it coming on to the statute book. I am not sure how, given the importance of this legislation and the background to it, the noble and learned Lord can say that the system is working perfectly well.

[Lord Davidson of Glen Clova]

The noble Lord will of course be aware that I have seen those statements and have been interested in what they in fact mean. But he will also recollect that we say, from this side of the House, that given the discussion about the fiscal framework and possible use of legislative consent Motions in that regard, we see the co-operation that has taken place between the Scottish Government and Her Majesty's Government in the past as something in which we can repose a good deal of trust that it will continue in relation to this process with the fiscal framework. Our trust may be misplaced, but we conceive otherwise. The noble Lord, Lord Forsyth, cannot see any more than I can into the future, but we are in a position where we repose trust in the process, at least from this side.

In relation to the various amendments before the House, we accept that a number of them are useful. None the less, we oppose Amendments 13 and 18.

[Lord Hope of Craighead]

I hoped that the noble and learned Lord might say something about Amendment 20. Perhaps I was not sufficiently clear when I introduced these amendments, but Amendment 12 deals with the stage of passing a Bill and says that,

“the Parliament of the United Kingdom may not pass Acts … without the consent of the Scottish Parliament”.

Amendment 20 intercepts the matter at the earlier stage. It says:

“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.

That amendment, as in the case of Amendment 12, was drafted in Edinburgh by people who know how the system is working. In giving his support to Amendment 12, I wonder whether the noble and learned Lord meant to give his support also to Amendment 20.

[Lord Davidson of Glen Clova]

I apologise for not confirming that we support Amendment 20. I took that as being the overall approach—this smorgasbord—between the approach of the noble Lord, Lord Stephen, and the approach of the noble and learned Lord, Lord Hope. I hope that clarifies the point.

[Lord Mackay of Clashfern]

What is the noble and learned Lord’s view about the provisions in Amendment 12, which was tabled by the noble and learned Lord, Lord Hope? It contains paragraphs (a), (b) and (c). Paragraph (a) applies to Scotland and does not relate to reserved matters. I would have thought that is what is meant by devolved matters, but paragraphs (b) and (c) considerably add to that. As far as I can understand them, particularly paragraph (b), they would apply to this legislation.

[Lord Davidson of Glen Clova]

Perhaps I can try to explain the proposition put forward by the noble and learned Lord, Lord Hope, in his amendment. As we see this, it reflects the reality of the way in which legislative consent Motions have been used over the 15 years, beyond the original.

[Lord Keen of Elie]

I am obliged for the contributions that have been made with regard to Clause 2 and the proposed amendments thereto. I shall begin by making an observation on a point made by the noble Lord, Lord Stephen, with regard to English votes. The provision with regard to English votes does not limit the sovereignty of this Parliament in any sense. English votes introduces the principle of English consent for English measures. The new procedures maintain the important principle of Members of Parliament from all parts of the United Kingdom being able to deliberate and vote on all legislation. Members of Parliament are not excluded from the legislative process. I would not accept the proposition that these provisions somehow derogate from the sovereignty of this Parliament.

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[Lord Davidson of Glen Clova]

I have a feeling that the Committee is going down the wrong line here. The Minister has made it entirely clear that he has been talking about something that would never happen. It is just a logical construct. He is looking into the reality, and the notion that one should feel that somehow the UK Parliament is asserting a power to intervene in the affairs of the Scottish Government is a flight of fancy—it is not real.

[Lord Stephen]

I will readily grab that escape route, and I thank the noble and learned Lord for that assistance. I hope that that is the case, although much has been repeatedly made of the absolute sovereignty of the UK Parliament. If noble Lords check the record, they will find that the Minister has mentioned it many times.

However, moving away from that issue, I strongly agree with the noble Lord, Lord Norton. You either keep the convention or you enshrine it in statute—I think that the wording from the Smith commission was “put it on a statutory footing”. It was not the Sewel convention of 1998 that was expected to be put on a statutory footing; it was the Sewel convention as it exists today, as the Smith commission knows it and as it has been working in the Scottish Parliament and between the UK Government and the Scottish Government. All aspects of the Sewel convention should be on a statutory footing, not just one narrow aspect that started in 1998 and has now gone. If we were forced to go in that direction, then, as the noble Lord, Lord Norton, pointed out, one tiny but important element of the Sewel convention would be in statute but not all the rest. To me, that would be ridiculous.

As ever, the noble Lord, Lord Forsyth, is logically correct: any Sewel Motions and legislative consent Motions could absolutely be prevented, with everything in devolved areas having to be dealt with by the Scottish Parliament. The UK Parliament—the House of Commons and the House of Lords—would stop legislating in these areas. However, I conclude by saying that the whole process of legislative consent Motions has been accepted and they have been commonplace. Some people have asked how often they have been used. They are used all the time in the Scottish Parliament. There must have been dozens, if not hundreds, of legislative consent Motions. They work well. Why try to stop or change something that has been accepted and works well? Let us simply put it on a statutory footing and get on with it. I beg leave to withdraw the amendment.