Scotland Bill

Lord Forsyth of Drumlean Excerpts

Monday 26th March 2012 Lords Chamber

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[Lord Forsyth of Drumlean]

1A: Before Clause 10, insert the following new Clause—
“Legislative competence: amendment to the 1998 Act
In section 29 of the 1998 Act (legislative competence) after subsection (2)(d) insert—“(da) it would result in residents in England, Wales or Northern Ireland being treated differently to citizens from other EU member states.””

[Lord Forsyth of Drumlean]

My Lords, I add my voice to those who are complaining about the way in which this Bill has been handled. In his reply, it would be helpful if the Minister could indicate where he proposes to get to this evening. It is suggested we can get to Clause 25—that is 15 groups of amendments and we normally finish at 10 o’clock. Although I mean to be brief, I do not think that that will be achievable. It is extraordinary that a Bill of this importance is being treated in this way. When I complain to the usual channels, they blame each other. Something has gone very wrong with the business managers in this House and they need to get their act together.

The great argument for devolution, which I opposed, was that Westminster was not able to deal with Scottish legislation. I have been around Westminster since 1983 and I have never seen a piece of legislation affecting Scotland handled as badly as this piece of legislation has.

[Lord Foulkes of Cumnock]

Has the noble Lord heard the suggestion from the Government’s usual channels that if we do not make progress today and Wednesday we should consider sitting on Thursday to deal with it? Is that not an astonishing suggestion?

[Lord Forsyth of Drumlean]

It is an interesting suggestion and if I thought it was correct I might defer consideration of my amendment until then as I would be able to get a majority quite easily, even if I just voted for it myself.

The noble Lords, Lord Hannay, Lord Sutherland and Lord Foulkes, have added their names to Amendment 1A. This is an historic occasion and there will be few occasions in this House when these four names together appear on one amendment. It emphasises the nature of this amendment and the nature of the injustice it seeks to deal with.

The amendment simply says that residents in England, Wales and Northern Ireland should be treated in exactly the same way by the Scottish Parliament as other members of other European states. One would assume this matter was completely uncontroversial. The amendment is grouped with Amendment 59, which provides for the Scottish universities to be consulted and for a delaying implementation provision in order to deal with any administrative difficulties that might arise.

I was acutely conscious of this issue when I ran at the beginning of this year for rector at the University of St Andrews, I regret to say unsuccessfully. I was beaten by a better candidate who had more time to commit to a great university. I attended the University of St Andrews with Alex Salmond. He ran the SNP and I ran the Tories. We had 1,300 members; he had three. It has changed round since those days. One of the characteristics of the University of St Andrews was that lots of students came from the rest of the United Kingdom and that is still the case today. What outraged me was discovering that students sitting side by side in classes are expected, in the case of those who live in England, Wales or Northern Ireland, to pay £36,000 in fees while those who live in Scotland or Poland or Germany or Italy or anywhere else in the European Union pay nothing at all.

That is an utterly divisive and wrong policy. It has been exacerbated by the increase in fees and by the fact that Scottish universities have four-year degrees. This amendment seeks to create the circumstances which would exist in Scotland if it were independent. If we had an independent Scotland, it would not be allowed under European law to discriminate in this way against those people who live in England, Wales and Northern Ireland.

I know that some people—not everyone, including me—have received directly a brief from the universities in Scotland which have expressed concern about this amendment. My noble friend Lord Vallance has made representations to me that if it were passed it would mean that there would be administrative chaos for the student intake arriving in September, which is why the amendment allows for some delay while this matter is sorted out.

The Scottish Government have been saying that if English and Welsh and Irish students—and that means people who are resident in England, Wales and Ireland; they might well be Scottish students whose families have moved to other parts of the United Kingdom—could go to universities in Scotland for free, there would be a flood across the border. This is the most disingenuous and dishonest argument. Ireland has no fees. People can go from Northern Ireland to the Republic of Ireland and they deal with it by having a quota for the number of students that they will accept. If it is suggested that quotas would be wrong, there is already a quota in operation. There is a quota set by the Scottish Government on the number of students who come from Scotland and from other European Union countries. To suggest that they could not have people resident in the rest of the United Kingdom coming on the same terms as those from Germany and elsewhere is, to say the least, misleading.

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[Lord Baker of Dorking]

My noble friend is right about the incident that affected me because in the previous Budget the Chancellor gave £150 million to university technical colleges to develop the ones my educational trust is promoting. These train technicians and engineers. We have 19 in England and are looking at 22. But I discovered under the Barnett Formula that, out of the £150 million, £25 million was allocated to Scotland. I was rather glad about that because I have industrialists wanting to support UTCs in Aberdeen and in Glasgow. When I went up and met Mr Russell, who is the Education Minister in the SNP Government, he told me that that money had been spent on other things. I have no idea what it was spent on; it certainly was not spent on what it had been allocated for.

This is another case where Scottish students and indeed the Scottish economy are losing out as a result of this particular arrangement under the Barnett formula. The money has been snaffled to do something else with and it is a great loss to Scotland.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend. I am not arguing that the Barnett funds should not be transferred from one budget to another but I am arguing for free tuition being available, in the same way that it is available for German and French students, for students from the rest of the United Kingdom. I do not think that is unreasonable. If the issue of funding will cause difficulty between the Governments, they have got lots of negotiations on and they should sort it out. If we believe in the United Kingdom—and I do with a passion—I can think of nothing worse than creating a situation where young people are burdened with substantial debt because they went to a Scottish university and they see everyone else in Europe going for free.

It could be argued that that arises from the Scottish Government’s policy of having free tuition fees. I do not argue against their ability to do that but they have to operate it in a fair and balanced way. This amendment would enable fair treatment for all students throughout the United Kingdom. It may not be perfectly worded. I would be very happy if my noble and learned friend said that he could not accept this amendment but that he would bring forward one of his own at a later stage of the Bill which would remedy the problem. I do not want to detain the House as I am anxious that if we divide, everyone will have disappeared. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I was pleased to put my name to the amendment of the noble Lord, Lord Forsyth. It is not something anyone on this side does lightly. However, as I have said before, even a Tory is not always wrong and on this occasion he is absolutely right—spot on. It is an issue of fairness. I shall be very brief.

It is an issue of fairness when students from Lithuania and Poland can go to Scottish universities for free, but students from England, Wales and Northern Ireland have to pay full fees. As the noble Lord, Lord Forsyth, said, there is double jeopardy. The parents of the students from Poland and Lithuania do not contribute to the costs of Scottish universities, but the parents of the English, Welsh and Northern Irish students pay UK taxes. They have to pay full fees and the taxes that subsidise Scottish universities.

I know that there are concerns about funding. These have been expressed by the chancellor of the Royal Conservatoire of Scotland, the noble Lord, Lord Vallance, and in a letter to me from the noble Lord, Lord Smith of Kelvin, the chancellor of the University of the West of Scotland. However, that is not a matter for us; it is a matter for the Scottish Executive. As the noble Lord, Lord Forsyth, said, they get billions of pounds from the block grant. It is a matter of priorities. Scotland has free care for the elderly, free prescriptions for everyone, including the very rich, and a whole range of other things that are provided. Surely this is something to which they can give consideration. Without pre-empting what the noble Lord, Lord Sutherland, will say, he has looked at the funding in much more detail and can make suggestions. If the Scottish Executive need help, I am sure he would be very willing to provide it—at no cost, I presume.

Finally, I say to my colleagues on the Labour Benches that we now have no Whip on this matter. Therefore, we have the opportunity to vote as we wish. I hope we will make the right decision in voting on this and support the amendment. I have spoken to Labour MSPs who have supported what the SNP Administration are doing. They said that they did not want to do it and regretted having to do it but had no option because of how it was put to them in terms of funding. We have an option: we can support the noble Lord, Lord Forsyth, and we can support fairness. I urge noble Lords so to do.

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[Lord Sutherland of Houndwood]

My Lords, I am prepared to take expert opinion on that. That does not rule out the possibility of the Administrations from Northern Ireland, Wales and Scotland sitting down with the Westminster Government and working out a quota system for within the UK. It is a broader question how the European Union behaves itself on this matter, and there may be alternative views.

[Lord Forsyth of Drumlean]

Is it not the position that in practice because the Scottish Government set a budget for the number of Scottish and EU students that they will fund—that is how they operate—all the noble Lord is saying is that there should be a budget for the English, Welsh and Northern Ireland-based students who attend?

[Lord Sutherland of Houndwood]

Certainly the Scottish universities funding council sets an overall budget which will pay for students who, as it turns out now, are resident both in Scotland and in the rest of the European Union. I accept the point made by the noble Lord, Lord Forsyth.

The force of what I have to say is that there needs to be discussion—I suspect it has been rather absent—between the funding councils and those who instruct them to see whether there is a way of removing this anomaly that none of us likes. How did we get here? By a slow process of change that has not had good consequences.

It would be unfair and unjust to discriminate only against the rest of the UK students, and if that is a principle that this House accepts, I hope that it will support the amendment.

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[Lord Vallance of Tummel]

I am coming to that. For the next academic year and for the years beyond, places have already been offered to and readily accepted by students who are resident south of the border. Bursary and scholarship arrangements have been substantially modified to help them. Indeed, the financial basis and plans of Scottish universities for the years ahead are dependent on those arrangements, which, as of today, are quite legitimate under the provisions of the Scotland Act 1998. I appreciate the willingness of my noble friend Lord Forsyth to delay implementation, but the question is for how long. A year is simply not long enough.

[Lord Forsyth of Drumlean]

If the Scottish Government had their way and Scotland became independent, they would have to do this anyway. Given that we are going to have a referendum on independence, does the noble Lord not accept that the uncertainty arises from the Scottish Government’s own policy?

[Lord Vallance of Tummel]

I share entirely my noble friend Lord Forsyth’s willingness and desire to keep the United Kingdom united. We should not discuss here the circumstances of a hypothesis in which we are no longer a United Kingdom.

To alter the provisions of the 1998 Act now would outlaw arrangements already in place and would throw into considerable disarray the Scottish universities’ administrative and financial arrangements not just for the next academic year but for succeeding years as well. I cannot imagine that this is an outcome that your Lordships would wish to endorse.

Rather than constraining ourselves through legislation that prays in aid European Union regulation, and in so doing simply shifts the locus of the problem within the UK, we should surely retain as much scope as we can to sort out United Kingdom issues in a UK context and to find practical measures between good neighbours for dealing with the problems thrown up by the inevitable anomalies that flow from devolution—as the noble Lord, Lord Sutherland, said.

I will paraphrase the remarks of the Abbess of Crewe in Muriel Spark’s novel of the same name. A problem you solve; an anomaly you live with.

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[Lord Wilson of Tillyorn]

My Lords, I will speak briefly. I declare an interest as a chancellor of one of the Scottish universities. I seem to be one of the very few people who has not received a briefing from Universities UK, Universities Scotland or anyone else.

There is no doubt that Scottish universities benefit enormously from having students from outwith Scotland. Whether they are from the rest of the UK, Europe or the rest of the world, they are very beneficial. There is also no doubt that it is uncomfortable to have students from, say, Northern Ireland, sitting next to students from the Republic of Ireland who pay different fees. It is not a happy situation. However, the reality is that the financing of universities in Scotland is a matter devolved to the Scottish Government. I cannot believe, even though I hope for the day when the situation is evened out, that it is right or practical for your Lordships’ House to legislate to change the financial structure of Scottish universities. I hope that the situation will be resolved over time, but I cannot believe that it would be right for us to legislate, and I would feel obliged to vote against the amendment.

[Lord Forsyth of Drumlean]

We are not legislating to alter in any way the devolved responsibilities of the Scottish Parliament. All that we are doing is requiring it to treat people from the United Kingdom in the same way as those from Europe. The amendment does not refer to tuition fees or universities; it simply states that you cannot discriminate against students within the United Kingdom but must treat them in the same way as you treat all other EU students. The amendment does not in any way unravel the devolution settlement.

[Lord Wilson of Tillyorn]

I understand what the noble Lord is saying, but the amendment would change the current way in which financial arrangements are made for Scottish universities.

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[Lord Stephen]

None of this is simple. The Scottish Parliament came forward with some very practical and pragmatic solutions to try its very best to tackle this problem. Back in 2000, when we first looked at the problem, the big issue was how we treated Scots attending universities outside Scotland, because they, too, are prejudiced—in terms of some of the quite extreme language which has been used at times in this debate. For them, there is a system that is different from that for students from England, Wales and Northern Ireland when they choose to study at a university outside Scotland. I referred to the legal advice that we received that day when I said in the Scottish Parliament:

“We wished to treat all Scots the same, but a significant problem was drawn to our attention. Members have asked for the legal advice and I will try to be helpful on that point … Article 12 of the Treaty on European Union prohibits discrimination on the ground of nationality against nationals of other EU states. The imposition of fees on students who are students of other member states as a condition of access would amount to discrimination if the fees were not imposed on nationals of the host member state … We had to consider whether we, in Scotland, as part of the UK member state, could provide that Scots—who for this purpose would be regarded as UK nationals—did not pay tuition fees in the rest of the UK. Given the risks of challenge by other EU nationals and based on the best advice available, we produced the proposals that are before us today”.

In other words, if we had funded Scottish students to attend universities in England, Wales or Northern Ireland without payment of tuition fees, to put them on a level playing field with other students in Scotland, the Scottish Government could have been held liable to fund the tuition fees of all EU nationals from outside the rest of the UK who attended universities in the rest of the UK. This is a complex and difficult problem created, in many ways, by the EU legislation. “Change your lawyers”, I hear from the Bench in front in me, but we were given that advice by some very senior lawyers, one of whom is present on the Opposition Bench today—a noble and learned lawyer. We came up with what were called the Quigley principles—how many people remember them? It was all about creating some sort of level playing field. I am not going to get into the rather offensive language of ethnic cleansing or use the word “swamping”. We simply wanted to stop a surge in demand—a disruption of the system that currently allows over 20,000 students from the rest of the UK to study in Scotland. That is a significant number of students, it has been a pretty stable number of students and it has only stayed stable because we have managed to maintain a level playing field. We were given legal advice that this was the only legal way to do it—that quotas would not be acceptable.

[Lord Forsyth of Drumlean]

Did the noble Lord think of looking at what happens in Ireland? Ireland has free tuition fees; students cross the border from Northern Ireland to attend Irish universities and are treated in exactly the same way. What is the difficulty with replicating exactly that with Scotland?

[Lord Stephen]

I can only repeat that we were given very clear legal advice that that would not be possible. As I understand it, that was the best legal advice of the UK Civil Service. If that advice has changed, I am sure that Ministers in both London and Scotland would be interested to receive it.

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[Lord Browne of Ladyton]

That is the point: it has got worse. It has got worse now after 11 years and the answer appears to be that we will impose a solution by amending the Scotland Bill because we have the Scotland Bill before us. The noble Lord, Lord Forsyth, shakes his head. I am sure that is not what he intends but that is what we are doing. From what I can gather having listened carefully to what noble Lords have contributed, those who were involved in decision-making and those who have been party to the process, we are doing this without any attempt to try to get what a number of noble Lords, including the noble Lord, Lord Sutherland, the noble Lord, Lord Empey, and others, have called for, which is a discussion across the United Kingdom to see if we can resolve this issue. Everyone’s briefing appears to be that we have been put into this position because of the activities of others and these are the consequences.

[Lord Forsyth of Drumlean]

The noble Lord, Lord Stephen, made an important point in his speech which I do not think is appreciated. We have been using the term fees but there are two issues here: one is fees and the other is the teaching grant. The fees have been of the order of £1,800 per head; the teaching grant has been £5,800. I understand the noble Lord’s problem in that he feels that his colleagues may have played a part, but when the noble Lord, Lord Stephen, and his Labour colleagues decided on this, the issue was the fees of £1,800. The £5,800 per place taken by rest of UK students has been paid every year up until now. It is only next year that that money is being taken away. That is the £28 million that the noble Lord, Lord Sutherland, is discussing.

The Scottish Government have changed the position and the numbers are very much larger. They have used opportunistically the position where students are going to have to pay high fees in England to turn the rest of the UK students into a cash cow for the universities. That is where the change has occurred and why my noble friend Lord Steel says it has got much worse.

[Lord Browne of Ladyton]

I appreciate that it has got much worse but the catalyst was a similar action by the coalition Government in that in England they transferred the burden from the public purse to the student. It was a similar action. This is not the place to debate whether student fees in a particular place are right. In the context of devolution, the debate is about whether it is appropriate for your Lordships’ House to impose on the Scottish Parliament an obligation, or a restriction, on a power that they have been exercising in a particular way for the best part of 10 years, when no attempt has been made to have a serious cross-UK discussion about the situation to see whether it can be resolved.

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[Lord Wallace of Tankerness]

My Lords, I am afraid that I do not have the figures for each university institution. One does not really know until the applications are in and turned into acceptances. However, I hope that I have indicated that the average will be less in Scotland, taking into account bursaries. It is also important to point out that the United Kingdom Government provide support to English students. Some may say that it is more generous than the support provided to Scottish students by the Scottish Government in terms of living support. In that situation, English students are entitled to a loan for the full cost of their tuition fees, regardless of where in the United Kingdom they study. This loan is not repayable until students have left university and are earning over £21,000, and even then, at only 9 per cent of earnings over £21,000.

To help with living costs, English students are also entitled to a maintenance loan of up to £5,500 and a grant of up to £3,250. All students are entitled to a loan of at least £3,575 regardless of their household income; and English students will receive a larger amount of maintenance grant compared to Scottish students with the same household income. So if one accepts my noble friend’s amendment in terms of fees, the concern would be that you can equalise fees, but would still have a considerable disparity in student finance and funding. That is because of the more generous arrangements that the United Kingdom Government have made for English students as compared with the arrangements the Scottish Government have made for Scottish students.

My noble friend Lord Forsyth said that students from England would be burdened by substantial debts because they came to a Scottish university. However, the truth is that they would have no greater debt—and arguably a lesser debt—coming to a Scottish university than they would if they went to one in England. That is a relevant point. The noble Lord, Lord Sutherland, acknowledged the fact that bursaries had been made available.

We have tried to look at the possible outcomes of my noble friend’s amendment and we have identified three. First, Scottish universities could begin charging tuition fees to European Union students. We believe that this would be a breach of European Union law and could place the United Kingdom, as a member state, in danger of infraction proceedings. Secondly, Scottish universities could charge Scottish students and therefore also EU students, tuition fees. Thirdly, Scottish universities could stop charging tuition fees to students from the rest of the United Kingdom.

[Lord Forsyth of Drumlean]

That’s it. That is the one.

[Lord Wallace of Tankerness]

My noble friend has indicated which one of the three he favours. I do not think that anyone has actually suggested that we breach European Union law, although the noble Lord, Lord Empey, said that at the heart of that is where the problem lies. If one accepts a devolution settlement across the United Kingdom, it will produce different outcomes in different places.

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[Lord Wallace of Tankerness]

My Lords, I hope that I represented what the noble Lord said, that that is the point, and that is why there is such concern. It is a point that my noble friend Lord Stephen made with regard to the strong misgivings that the Scottish Executive had back in 2000 in having to go down this course. It had to acknowledge that if we went down this course of free tuition fees for Scottish-domiciled students attending Scottish universities, the consequence would be that students from European Union countries attending Scottish universities would have to be treated on the same basis. In Committee, I said that I was then a Member of the Scottish Government and that although it was not something we particularly wanted to do, it was a consequence that we had to accept, however reluctantly, if we wished to bring in a policy of free tuition for Scottish-domiciled students.

I indicated that I am more than willing to look at whether there is a way of resolving this at a European Union level but I do not wish to mislead the noble Lord or the House into believing that there is a realistic prospect of that happening, certainly before Third Reading. It is something that is so deep within the relevant directive that it would be a significant mountain to climb—although I know my noble friend Lord Forsyth is quite good at climbing significant mountains.

[Lord Forsyth of Drumlean]

But not in Europe.

[Lord Wallace of Tankerness]

But not in Europe.

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[Lord Wallace of Tankerness]

My Lords, I am not sure that I follow that. What about the consistency of Mr Salmond’s position? I have to answer for a number of things in your Lordships’ House but, fortunately, I do not have to answer for Mr Salmond.

I agree with the comment that the noble Lord, Lord Empey, has encapsulated what the problem is. There are differential solutions around the United Kingdom—Northern Ireland charges £9,000—so simply to adopt this amendment would not solve the problem across the country. I do not believe that the Bill is the right place to address this. I have indicated that we are prepared to look at the European Union dimension and that we are more than willing to engage with the different Administrations. I just do not want to suggest to your Lordships’ House that this matter can be resolved easily; it would be wrong to suggest that. Even if one does not accept the word “tsunami”, the consequences, which could include a complete disruption of the Scottish higher education system, are sufficiently uncertain for it not to be a risk that we can take. Even allowing for one year’s grace, the problems would still arise in subsequent years. Therefore, I urge my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

My Lords, I am most grateful to everyone who has spoken in a very interesting debate. Given the lateness of the hour, I am sure noble Lords do not want me to respond to all the points or to repeat any of the arguments. I am very impressed by the argument from the Labour Party’s Front Bench that if something has been going on for 10 years, you should keep it. That seems a very conservative point of view to me.

In all the arguments about the practicalities and difficulties, all of which can be addressed and overcome, the overriding issue here is one of fairness. Why did I table this amendment? I spent a week at St Andrews. I went there nearly 40 years ago and I have to say that the students now are much harder working and much more focused than they were in my day. They are absolutely outraged by what is happening to them. Those students have a much tougher time ahead of them than any of us in this House had when we left university. We owe it to them to address this problem.

I was not sure whether I would have to press this matter to a vote tonight. However, I have to say to my noble and learned friend that we debated this in Committee, when I urged him to raise it with the Prime Minister and his colleagues. Perhaps this was said in confidence and I should not repeat it, but one of his ministerial colleagues in the Scottish Office called me today to say, “How can we help you with the Scotland Bill?”. I said, “You can help me by accepting my amendment, or at least giving some commitment. What is your position on student fees?”. He said, “We’re waiting to see what the strength of opinion is”. On that basis, I beg leave to test the opinion of the House.

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[Baroness Deech]

My Lords, I suggest that the valuable time of the House would be better used by allowing me to have my dinner break debate and then using such time as is left at noble Lords’ discretion.

[Lord Forsyth of Drumlean]

My Lords, I certainly do not want to impose on the patience of the noble Baroness, Lady Deech. I must say to my noble friend the Chief Whip that her treatment of Members of this House is becoming very difficult to defend. I watch noble Lords’ facial expressions. We were promised a full day on Report after Committee finished in the middle of last week. We had to struggle to table amendments. We were promised a full day today and a full day on Wednesday.

The next amendment, Amendment 2, is mine, which I am expected to speak to at 10.20 pm. If we are to get to Amendment 26, we will be here until the early hours of the morning. There is plenty of time on Wednesday to debate these matters, which are serious matters and deserve to be properly debated. It is true that we had a long debate on the previous set of amendments, but that was because many Members who had not been following our proceedings came in to speak because it affects their interests all over the United Kingdom. My noble friend is treating us very harshly indeed, and I do not believe that that is the best way to get the Government’s business on to the statute book.

Motion agreed.