Scotland: Constitutional Settlement

Lord Forsyth of Drumlean Excerpts

Tuesday 10th March 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, the noble Lord knows the position of my own party with regard to federalism but we are not there yet. However, I believe that by implementing the recommendations of the Smith commission in these proposals, we will ensure that we are honouring our commitment. I take his view that a constitutional convention should not be an excuse for kicking this issue into the long grass. I was a member of the Scottish Constitutional Convention, which produced the blueprint for the Scottish Parliament that was legislated for by the Labour Government in 1997.

[Lord Forsyth of Drumlean (Con)]

My Lords, can my noble and learned friend tell me how he thinks the strategy of piecemeal devolution in Scotland in order to kill nationalism stone dead is going?

[Lord Wallace of Tankerness]

My Lords, when the Scottish Parliament was established, many of us recognised that more would need to be done in due course. There was at that time recognition that we needed greater financial accountability because it is not healthy to have a Parliament that had total discretion as to how it spent money but little or no discretion as to how it raised that money. It was important that we recognised that in the 2012 Act which this Parliament passed, and the proposals that we have now strengthen that position.

Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015

Lord Forsyth of Drumlean Excerpts

Thursday 26th February 2015 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, as the House well knows, on 18 September last year the people of Scotland, including tens of thousands of 16 and 17 year-olds, voted in the Scottish independence referendum and made the historic decision that Scotland should remain part of the United Kingdom. The participation of our young people in that vote was truly historic. They showed that they were more than capable of being part of Scottish democracy when they helped their country to take the biggest decision we have faced for centuries. It demonstrated a desire to be involved in an event which would shape the future of their country.

In the run-up to the referendum, pledges were made to the people of Scotland. The three pro-union parties—the Conservative Party, the Labour Party and the Liberal Democrats—all made a vow to devolve further powers to the Scottish Parliament, should Scotland remain within the United Kingdom, thereby ensuring that Scotland retains the best of both worlds. In keeping with that vow, the day after the referendum the Prime Minister made the announcement that the noble Lord, Lord Smith of Kelvin, had agreed to lead a commission to agree what those new powers should be. The commission would work with the five parties represented in the Scottish Parliament to make that determination.

The commission invited submissions from political parties, a wide range of business and civic organisations and the wider public to help guide its consideration of what further powers should be devolved to the Scottish Parliament. Following due consideration of all submissions and views garnered by the commission, on 27 November 2014 the report detailing the heads of agreement was published. That report was welcomed by this Government, and, as this House is aware, on the 22nd of last month we published the draft clauses which will make up the substance of the next Scotland Bill to implement the recommendations in that report.

However, one of the recommendations made by the commission is being taken forward separately from that Bill: the recommendation that the United Kingdom Parliament devolves the relevant powers in sufficient time to allow the Scottish Parliament to extend the franchise to 16 and 17 year-olds for the 2016 Scottish parliamentary elections, should the Scottish Parliament wish to do so. That is exactly what this draft order seeks to achieve. Not to have taken this forward now, by means of this order, would have risked the Scottish Parliament having insufficient time to bring forward any subsequent legislation, should it choose to do so, to implement it and to have any necessary measures in place well in time for the 2016 Scottish parliamentary elections.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble and learned friend for giving way. The document to which he referred, Scotland in the United Kingdom: An Enduring Settlement, published in January, suggested that the alterations to the franchise should require a supermajority of two-thirds in the Scottish Parliament. The order being presented today bypasses that. If it was thought appropriate to have a supermajority to change the franchise in January, why is it not thought appropriate in February?

[Lord Wallace of Tankerness]

My Lords, that point was made by the Constitution Committee of your Lordships’ House, and I will deal with it when I come to deal with the points made by the committee in its report, published earlier this week.

The draft order is made under Sections 30 and 63 of the Scotland Act 1998, the Act that set out the original devolution settlement for Scotland and that continues to demonstrate that devolution is remarkably resilient and flexible. Several Section 30 and Section 63 orders have been made under that Act and, even with the new upcoming Bill, we do not expect that to change. Where a need for change is identified and agreed, those changes will be made by the most appropriate means.

By virtue of Section 30 of the Scotland Act 1998—which I shall refer to as the 1998 Act—this draft order will give the Scottish Parliament the power to legislate to reduce the minimum voting age to 16 at elections to the Scottish Parliament and to Scottish local government elections. The Scottish Parliament will also be given the power to legislate to make provision about the registration of electors in order to give effect to any such reduction in the minimum voting age. However, I wish to be clear that the draft order itself does not actually reduce the minimum voting age to 16 at both of these elections. Rather, it paves the way, by conferring the necessary legislative competence on the Scottish Parliament, to make the necessary legislation to achieve this, should it choose to do so.

Section 63 of the 1998 Act allows for an Order in Council to provide for any functions, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable by the Scottish Ministers concurrently with the Minister of the Crown. This draft order will give the Scottish Ministers the ability to exercise certain functions relating to the individual electoral registration digital service—which I shall refer to as the digital service—in or as regards Scotland, when giving effect to provision reducing the minimum voting age to 16 in Scottish Parliament or Scottish local government elections or both. Provision relating to the use of the digital service for applications for registration, or for verifying information contained in applications for registration, is otherwise reserved to the United Kingdom Parliament.

The draft order will also have the effect that, if the Scottish Ministers exercise the functions given to them in relation to the digital service, in certain cases the requirement to consult the Electoral Commission and the Information Commissioner, and to publish reports prepared by the Electoral Commission, will apply to the Scottish Ministers. I would like to make it clear that the Scottish Ministers will be able to exercise these functions given to them by virtue of this draft order concurrently with UK Ministers and subject to the agreement of a Minister of the Crown.

I appreciate that concerns about the draft order have been raised by the Constitution Committee of your Lordships’ House, and I turn to these now. A question was raised about the propriety of using Section 30 of the 1998 Act to make this change. As I have already stated, several orders have been made under Section 30 since 1999, and it is right that they should have been. Section 30 is a tailor-made power for altering, by an Order in Council, the legislative competence of the Scottish Parliament without the need for primary legislation. Section 30 orders, as they are known, are part of the agreed process set out in the 1998 Act. That Act, including that particular process, was fully scrutinised, and the Section 30 process approved, by this Parliament. Therefore, the use of a Section 30 order is an entirely appropriate way to take forward this matter.

Again, I remind your Lordships that it would not have been possible, in the time available, to deliver this important aspect of the Smith commission agreement if the provisions had been contained in a Bill to be brought forward after the next general election. Any consequent legislation brought forward by the Scottish Parliament to reduce the voting age to 16 for Scottish Parliament and Scottish local government elections will be scrutinised by the Scottish Parliament in the normal way.

On the point raised by my noble friend Lord Forsyth, the committee queried whether or not it was appropriate that this order does not include the supermajority procedure requirement. The order delivers the recommendation in the Smith commission which was agreed by all five political parties represented in the Scottish Parliament. Paragraph 25 of the agreement states that the Scottish Parliament should be given the power to legislate to enable 16 and 17 year-olds to vote in time for the 2016 Scottish Parliament elections should it choose to do so. The five parties represented in the Scottish Parliament which agreed this issue during the Smith process will therefore be responsible for bringing forward this change in that Parliament, should they choose to do so. This is a question not even of consensus but of unanimity. I am advised that earlier this morning the Devolution (Further Powers) Committee of the Scottish Parliament unanimously recommended that the Scottish Parliament approve this order. No other change to the operation and structure of the Scottish Parliament has that political consensus at the present time.

These are matters for future Scottish Parliaments to debate and any such change will, as my noble friend pointed out, be subject to a supermajority provision. However, we are talking about a recommendation that came forward from the Smith commission which commands unanimous support within the Scottish Parliament. We therefore believe it is not necessary to include a supermajority provision in the current order.

[Lord Forsyth of Drumlean]

My noble and learned friend is saying to the House that the reason that no supermajority provision is required is because it was a recommendation from the Smith commission. However, this document, An Enduring Settlement, which was the Government’s response to the Smith commission, said that there should be a supermajority for changes to the franchise or important constitutional changes. He has not explained why he has changed the Government’s position in a matter of weeks.

[Lord Wallace of Tankerness]

My Lords, the Government’s position has not changed. My noble friend will have heard that I said in my first paragraph in moving this order that it was laid before the House on 20 January 2015. That was before these clauses were published. It was always clear that there was not going to be a supermajority requirement for the order, which is on a proposal that commands unanimous support in the Scottish Parliament. There are further technical issues. The clause that deals with the supermajority is somewhat complex and would have led to unnecessary complexity in an order for which there is unanimous agreement that it should go forward.

I do not believe that it was ever the intention that this order would require the supermajority provision. To have done so might have led to accusations that we were going back on something that had been agreed. It was announced early on, before the clauses were published, that we would proceed by way of a Section 30 order to meet not only the spirit but the specific recommendation of the Smith commission that this part of the agreement should be taken forward ahead of the Bill to implement other aspects of it.

It is noted in the Constitution Committee’s report that the change made by this order does not directly affect the franchise for UK general elections, European parliamentary elections or local government elections beyond Scotland. Therefore the order has no direct constitutional implications for the rest of the United Kingdom. I emphasise that the power to set the franchise for voting in United Kingdom parliamentary elections will remain with this Parliament. It is not the Government’s policy to do that—indeed, it would be impossible—for the next general election in the four or five weeks that are left.

While the committee raises concerns that any reduction in the voting age in Scottish Parliament and Scottish local government elections may lead to pressure to extend the franchise for other elections, this is not exactly a new debate. Indeed, some parties represented in your Lordships’ House and one of the parties in the coalition—my own—believe that there should be a change in the franchise: it is not a new debate. During the debate on the order in the House of Commons, this was seen to be a positive development. While there may not be a consensus in this Parliament at the present time for changing the franchise for general elections, I am sure the debate will continue.

Rather than devolve only the powers necessary to allow 16 and 17 year-olds to participate in the 2016 and subsequent Scottish Parliament elections, as the committee pointed out the draft order devolves the power to enable the Scottish Parliament to legislate to lower the voting age to 16 in time for the 2017 local government elections in Scotland if it so desires. I can hear a Member saying that this was not in the Smith report. I was just going to explain why it is being done, albeit that it was not in that report. It is another very sensible, practical thing and the Government should be given credit when they do such things. The draft order does, indeed, go further than is specified in the Smith report but in terms of timing only. Unlike with Scottish Parliament elections, the noble Lord, Lord Smith, did not specify the timescales within which the Scottish Parliament should be given the power to enable 16 and 17 year-olds to vote in local government elections. However, the commission did recommend that:

“The Scottish Parliament will have all powers in relation to elections to the Scottish Parliament and local government elections in Scotland”.

The order clearly does not go beyond that overall recommendation.

Including the power to enable 16 and 17 year-olds to vote in Scottish local government elections in this order was felt to be beneficial and practical for two reasons. First, there is an issue of timing. If the Scottish Parliament wished to take forward such legislation, then the timing of the forthcoming Scotland Bill would make it very challenging to devolve the necessary powers in sufficient time for the Scottish Parliament, in turn, to legislate in time for the Scottish local elections in May 2017 without breaching normal electoral guidelines. Secondly, the franchise for the Scottish Parliament election is currently the same as that for the local government franchise and the former is set by reference to the latter.

Devolving only the legislative competence to reduce the minimum voting age for Scottish parliamentary elections would have meant that the Scottish Parliament would have needed to separate the Scottish Parliament franchise from the local government franchise. That would have introduced unnecessary complications into the registration system. In the absence of a strong policy reason to make the two franchises different, there seems no reason to separate them when all it would bring is unnecessary cost and complication for electoral administrators and potential confusion for electors.

Finally, the committee raised the issue of data protection and individual electoral registration, particularly in connection with individuals under the age of majority. Enacting provisions to protect the data of the prospective young voters is part of the implementation of the order. The Scottish Parliament is well aware of its obligations under the Data Protection Act 1998 and, generally, to adequately safeguard the information provided for, and used in, the process of registering electors. Further, as already mentioned, this draft order will give the Scottish Ministers the ability to exercise certain functions relating to the digital service. I can assure noble Lords that all information used by this system is treated appropriately and is adequately protected. The service is the name given to the series of interlocking digital systems which allow applications to register as an elector to be made online and for the personal information given by applicants to be verified against government data. It comprises the online application service, the secure environment which receives and directs data, secure connections to electoral registration officers and to the Department for Work and Pensions, the DWP processing environment and the interface with electoral registration officers’ election management software.

The other place approved this draft order on 2 February. If the approval of this House and the Scottish Parliament are also secured, then the order will go forward for consideration by Her Majesty in Council. When the order comes into force, the Scottish Parliament will have the legislative competence to bring forward the legislation necessary to allow 16 and 17 year-olds to vote in all Scottish Parliament, Scottish local government elections or both. The United Kingdom Government have fast-tracked devolving the power for this as an exception to the rest of the Smith package so it can be in place in time for 16 and 17 year-olds to vote in the 2016 Scottish parliamentary elections and the 2017 Scottish local government elections. It is my understanding that the Scottish Government intend to introduce this legislation, to lower the voting age, in the Scottish Parliament as soon as possible once this order has been made by the Privy Council. I commend the order to the House.

--- Later in debate ---

[Lord Lang of Monkton]

My responsibility is not to explain the Government’s position; my responsibility is to hold the Government to account. I am grateful for the noble Lord’s contribution, which does a great deal in that direction, and I am sure that my noble and learned friend will wish to return to this matter in his reply to the debate.

Another issue on which your Lordships are expected to be swept along is the important one of data protection, to which my noble and learned friend referred, and the implications of including details of minors in a public document such as the electoral register. I heard what my noble and learned friend said, and I accept that attempts are being made to take this matter seriously and reduce the risk that might arise. But again, that is a matter that should have parliamentary scrutiny.

Individual electoral registration means that more personal data will be collected and held by registration officers than happened under the old household registration system. Most young people about to turn 16 will probably apply for registration as attainers, at which time they probably will not yet have received their national insurance number, which is the primary means of verification. The examination, acceptance and storage of alternative proofs of identity will need the most careful thought and reassurance. None of this has had the kind of parliamentary scrutiny that the Committee stage of a Bill would provide—although I do welcome what my noble and learned friend said about the attention being given to the matter.

There have been many false dawns with earlier consultations on a reduction in the voting age. None has led to a firm conclusion in support of it. In 1998 the House of Commons Home Affairs Committee decided not to recommend a change. In 1999 the Howarth working party on electoral procedures reached the same conclusion. In December that year, in proceedings on what was to become the Representation of the People Act 2000, an amendment to reduce the age from 18 to 16 was rejected by an overwhelming majority.

As for the merits of the case for younger voting, of course we want young people to take an interest in our democratic process and in the issues of the day, and to start to develop their political beliefs. But if giving them the vote at 16 would achieve that, why does the 18 to 21 age group have the lowest turnout rate of all at general elections? It is not getting the vote earlier that matters, but attaining sufficient intellectual maturity and involvement in the issues that will affect their lives which will begin to engage them. Then, when they do get the vote, they will value it and be more likely to use it.

I mentioned the number of reports that came out in the early years of this century. People addressed the issue, and some of them left the door open. But broadly they all agreed, as successive Governments have done, that the present position should remain in place. In 2003 the Electoral Commission reached that conclusion as well.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend for the excellent report his committee has produced. Did the committee consider why, if it was proposed to reduce the age of the franchise and give the right to vote at 16, it was not also proposed that people should be able to stand as candidates at 16?

[Lord Lang of Monkton]

Again, my noble friend makes an extremely relevant point. The relationship between voting age and the age of majority has not been adequately considered, either. I hope that this will emerge in the course of the debate. I do not wish to take up too much of the House’s time, so I will bring my remarks to a conclusion. I am sure that other noble Lords will wish to explore further the pros and cons of that change. The burden of my message to your Lordships today is simply to state that the appropriate parliamentary processes for a constitutional change of this kind have not been properly observed—and that is something that should not pass without comment.

--- Later in debate ---

[Lord Purvis of Tweed]

There are two aspects to that. The first is the desire of young people themselves. For many years a consistent theme in campaigns to give people the vote at 16 is that participating in the democratic process does not automatically assume that exactly the same process should apply to those who are elected to Parliament to make these decisions. That comes from young people themselves. Secondly, the age of majority is not necessarily applied consistently as regards young people’s rights and responsibilities. For example, different approaches are taken as regards the minimum age at which one can drink alcohol, drive, join the military or buy knives. Today, we are discussing the specific issue of the enfranchisement of 16 and 17 year-olds. The age of majority and whether young people of 15, 16 and upwards should be granted other rights and responsibilities is quite rightly an area which we continue to debate—and which young people themselves continue to debate. I see that my noble friend is itching to intervene and I am delighted to give way.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend, but is he really arguing that 16 year-olds in Scotland should not be trusted to buy a packet of cigarettes but should be trusted to decide the future Government of the country?

[Lord Purvis of Tweed]

I am saying that there are differences in the rights and responsibilities of young people, and for those aged under 21, in these islands. In many instances the decisions made on why those rights and responsibilities differ for different ages are taken on their own merits. For example, decisions on the age at which one has the legal right to drive, join the Armed Forces or, indeed, buy articles that could potentially be used as weapons are taken on their own merits. Likewise, the proposal that 16 and 17 year-olds should also have the vote should be taken on its own merits.

I agree that there has not always been consensus on this issue among the political parties. When I was a Member of the Scottish Parliament, the Liberal Democrats worked hard with our Labour coalition partners to persuade them of the merits of this proposal, and we have done the same with our partners in this coalition. However, as my noble and learned friend indicated, there is now a settled consensus among the parties in the Scottish Parliament representing the whole spectrum of political view that this is the way forward.

I need not rehearse the arguments further about the merits of 16 and 17 year-olds voting, because to some extent the best evidence that I can provide was presented by the young people themselves in the referendum in Scotland. Those of us who took part in debates on the referendum will know that some of the best and most profound points in terms of perspective, responsibility and maturity were made by 16 and 17 year-olds who participated in them. Of course, that was a binary decision about the future of the country but there is no doubt in my mind that it demonstrated absolutely that not only can 16 and 17 year-olds be trusted to decide how they elect their representatives but it is important that we should now enshrine that in law.

My noble friend Lord Lang referred to turnout. He is quite right: the Electoral Commission’s assessment of the referendum in Scotland showed that the turnout of 16 and 17 year-olds was 75%. The rate dropped for those aged between 18 and 24 before it started to pick up for those aged 25 to 34 and those above 35. If I follow his rationale that democratic participation should start early and then develop, the best way of enhancing 18 to 24 year-olds’ participation in democratic elections is to enfranchise 16 and 17 year-olds, as the evidence on turnout suggests that that will indeed be the case. Therefore, this delivers an agreement. The agreement is unanimous and I am delighted to support it.

My noble friend raised two final points on the committee report in which I was quite interested. First, I do not accept that a possible concern that other parts of the UK may have a desire to follow Scotland should be used as a negative to delay this. That other parts of the UK will learn from Scotland’s experiences should be seen as positive. I have no doubt that the Welsh experience that he cited was a result of people seeing the way in which 16 and 17 year-olds participated within Scotland in the referendum.

--- Later in debate ---

[Lord Purvis of Tweed]

I was referring, in my answer to the noble Lord’s previous intervention, to the heads of agreement of the Smith commission, in paragraphs 25 and 27, and, in annexe A, to draft Clause 4 on page 93, which brings into effect the recommendations of the Smith commission. This clause also brings into effect a recommendation of the Smith commission, which is to move, on the basis of unanimity in the Smith commission, to the delivery of this power for 16 and 17-year olds, so that the Parliament will have that authority in advance of the 2016 Scottish Parliament elections. There is no difference in that position on the Government’s part, apparent or otherwise, as far as I see it.

Finally, I joined my party at the age of 16. One of my reasons for doing so was because of the position that my party had to empower 16 year-olds to take part in parliamentary elections. I am delighted that this Government have acted on the unanimity of political views in the Scottish Parliament to deliver this, and that is why I will be delighted if this goes through Parliament today.

[Lord Forsyth of Drumlean]

My Lords, all I can say to the noble Lord, Lord Purvis, is that he must have been quite an extraordinary 16-year old if at that age he was thinking of joining the Liberal Democrats because it was going to reduce the franchise age to 16. I have to say that when I was 16, I thought that I was a socialist, but I grew out of that after a while.

I am participating in this debate not to argue the merits or otherwise of whether people should have the vote at 16, but because I think that the process by which this is being achieved is absolutely lamentable. We began our proceedings this morning by discussing whether former Members and MEPs should have access to the facilities—the restaurants and bars—of this place. I sat here thinking that this place is presenting itself to the outside world as if it was some kind of club, rather than a House of Parliament. This debate, and the way that the Government have dealt with the matter, shows that we are being treated as a kind of club and not as a second House of Parliament with particular responsibilities for constitutional matters.

We have here an excellent report from the Constitution Committee. My noble friend Lord Lang has explained the reservations which have been drawn to the attention of the House by the committee, but the Government propose to charge on regardless. I have the highest regard for my noble and learned friend the Minister, but even he was struggling to make bricks out of this particular straw. He suggested that there was not really a commitment that contradicted the terms. Scotland in the United Kingdom: An Enduring Settlement was published in January 2015 as Command Paper 8990. It has a foreword signed by the right honourable Nick Clegg, the Deputy Prime Minister, and the right honourable David Cameron, the Prime Minister, which states that it is their response to the Smith commission proposals. On page 17, it states:

“To provide an adequate check on Scottish Parliament legislation changing the franchise”,

which is what we are discussing,

“the electoral system or the number of constituency and regional members for the Scottish Parliament, UK legislation will require such legislation to be passed by a two-thirds majority of the Scottish Parliament”.

Is this not UK legislation? Are we not discussing the franchise? What do those words mean if they do not mean what I say they mean? My noble and learned friend is being Humpty Dumpty. Words, it appears, for this Government mean whatever they believe them to mean and not what they say. This was a document presented to Parliament by the Prime Minister and the Deputy Prime Minister only a few weeks ago. We are entitled to ask why this change has been made.

As the noble Lord, Lord Reid, pointed out, my noble and learned friend made a contradictory statement. He said that we are not having a supermajority because there is consensus that it should happen. As the noble Lord pointed out, if there is consensus, what is the problem with having a supermajority? My noble and learned friend did not make clear whether that supermajority is still required. The noble Lord, Lord Purvis, said that there was consensus. Suppose that there was a majority in the Scottish Parliament that, having had a bad experience with the franchise set at 16, wanted to change it from 16 to 18. Would that require a supermajority, or has that provision simply been dropped? If the answer to my question is, yes, it would require a supermajority, is it not going to look a bit ridiculous to tell the Scottish Parliament that it can change the age to 16 but it needs a supermajority to change it back to where it was?

I am really dismayed that matters of this kind should be being dealt with by orders and regulations, which effectively prevents this House or, indeed, the other place, from making any amendments or changes and having any debate.

That brings me to my next point, which my noble and learned friend acknowledged. Included in the order is a proposal that the franchise should be extended to local government. There was nothing in Smith about that. There is nothing in this document that I can see—I stand to be corrected about that. It has come from nowhere for the sake of convenience. Therefore, the idea that we extend the franchise for local government, which may or may not be a good idea, has not been subject to proper scrutiny. No one in Scotland or any other part of the United Kingdom has had an opportunity to discuss the merits of it: there has been no consultation. As my noble friend Lord Lang pointed out—and has pointed out in the excellent report from the Constitution Committee of this House, which has had to be rushed out in order to meet this timetable, ahead of discussing the draft clauses to which this apparently relates—it is an extraordinary way of doing business.

In the early 1960s, as has already been mentioned, when we changed the franchise from 21 to 18, we did it after having two commissions. The noble Lord, Lord McAvoy, may take credit for it, as a Labour Government did this. The Labour Government in those days were very concerned about consultation and constitutional propriety and there were two separate commissions created to look at this before the change was made. One was on the age of majority, which is the point that the noble Lord, Lord Purvis, was struggling with. How can it be right to have an age of majority that is different to the age of the franchise? We end up with the absurd position that 16 year-olds are not allowed to go and buy a pint of beer, to buy a packet of cigarettes, or to drive a car; but they are allowed to decide the future Government of their country. They are almost certainly not paying income tax or other taxes apart from indirect taxes; they will not even have a national insurance number when they are required to go on the register, because they will be 15. The national insurance number system, as the Constitution Committee report points out, is the means by which we check the identity of voters for the voters’ roll, so how is that going to work? There is nothing that I can see in the explanatory material provided by the Minister to explain any of this or to deal with the issue of whether 16 year-olds should be able to stand as candidates.

I happen to believe that, if you have the right to vote, you should have the right to stand. It is true that there has been a difference in the past. When I was at St Andrews University with the late Robert Jones—who was in the other place as the Member for West Hertfordshire and died rather prematurely—he stood as a student in St Andrews. He promptly got himself made chairman of the planning committee and started to block the principle of the plans of St Andrews for the expansion of the university, which caused a degree of consternation. It was argued then that a student should not be able to be on the council deciding these matters, but at the time people accepted that if you had the right to vote and participate in the election you should be able to stand as a candidate. This is illustrated by this House: the reason why Members of this House do not have a vote at the forthcoming general election is that we are our own representatives in Parliament. That is the constitutional theory. Therefore, if you are able to vote in the election, it seems to me that you should be able to stand and put forward your views. This is completely muddled.

What on earth are this Government doing? They seem to be making up constitutional change as they go along. They seem to be doing it under electoral pressure from the Scottish Nationalists, and—do you know what?—it does not seem to be working. Ladbrokes will give you very good odds on the SNP winning more than 39 seats in the forthcoming general election. You would not have got these odds before we made this foolish vow in the last minutes of the referendum campaign. This process of appeasement and making it up as you go along is creating instability in our country and feeding those who wish to break our United Kingdom. These are facts.

I have bored the Minister to death on this subject; I have spoken on it before and I warned him that if we introduced the opportunity for 16 year-olds to vote, then it would be argued that other parts of the United Kingdom should get the same. What do we have from this Government on the position in respect of Wales? Do we have a similar provision for the Welsh Assembly? Apparently not: we have a provision that 16 year-olds in Wales might get the vote in order to vote in a referendum on tax-raising powers for the Welsh Assembly. Where is the logic of that? You would get to vote on tax-raising powers as a 16 year-old when you may not have to pay them but not get to vote for the Members of the Welsh Assembly. However, if you move north of the border you would get the opportunity to vote for the Scottish Parliament because there is consensus among the political parties about this. Why is there a consensus in Scotland? What about England?

What are this Government doing in bringing forward measures based on the Smith commission, which had a narrow remit? Its remit was to consider what was right for Scotland. It did not look at the rest of the United Kingdom or the implications for it.

[Lord Wallace of Tankerness]

My noble friend is seriously misinformed on this matter. If he looks at the Smith commission’s report, he will see the principles that guided the commission, which included “no detriment” to other parts of the United Kingdom. That was one of the principles which all parties to the Smith commission agreed to and which informed the proposals with which it came forward. He is absolutely wrong to say that there was no regard to other parts of the United Kingdom.

[Lord Forsyth of Drumlean]

In which case, why on earth are we still retaining the Barnett formula and allowing Scotland to raise its own tax, if the principle was that there was “no detriment” to the rest of the United Kingdom? There was no representation from anyone from the rest of the United Kingdom; it was the political parties in Scotland looking at the position in Scotland.

My noble and learned friend, who is a very clever lawyer, is making a quite separate point. You can look at what is in the interests of Scotland in such a way that it creates no detriment to the rest of the United Kingdom, but that is not the same thing as looking at the interests of the United Kingdom as a whole and considering the knock-on implications. That is a matter for this House and, more particularly, the other place but they are being given no opportunity to debate and consider it. In the case of the changes to local government there has been no opportunity for anyone in Scotland, in the Scottish Parliament or anywhere else to consider that.

I return to my point. We had the Smith commission looking at Scotland. Then we had this ludicrous vow made in the last few days of the campaign—after I and many other people had voted, because many people voted by post. It was done without consultation with the party leaders in Scotland, hence the leader of the Labour Party in Scotland resigned and described her party as being treated like a branch office. Our leader Ruth Davidson, who did such an excellent job in the referendum campaign, was not consulted. This was three privy counsellors on the phone, cooking up a scheme. We have not had that style of government, where privy counsellors could consult each other and create legislative change of this kind, since the days of Wolf Hall. We should be very concerned indeed by the way in which this matter has been done and brought forward.

Then we had the childish timetable where the Government were required to respond from September by St Andrew’s Night, and then from St Andrew’s Night we had to have draft clauses by Burns Night. This is pantomime politics. Not only did we have these draft clauses by Burns Night but, a week later, we had the architect—the hero—of saving the union, Gordon Brown, telling us all that what he had produced and agreed by Burns Night was no longer satisfactory and that we needed to do something else. This is riding for trouble. We should consider constitutional matters carefully and they should carry consensus. We should consider the implications for the United Kingdom as a whole. It should never be driven by political expediency or short-term political consideration.

[Lord Purvis of Tweed]

I am enjoying my noble friend’s contribution but, with regard to symbolism, I wonder which has the richer symbolism in what he is referring to. Is it David Cameron not consulting Ruth Davidson in advance of making that joint statement with the other leaders of the UK parties or, in some form of symbolic suggestion, moving the Stone of Scone up to Scotland in 1996 to cross the River Tweed with great fanfare?

[Lord Forsyth of Drumlean]

I am very proud of having taken—

[Lord Purvis of Tweed]

It is not symbolic at all, is it?

[Lord Forsyth of Drumlean]

I am sure the House will get cross with me if I go on much longer but, as the noble Lord has raised the Stone of Scone, the reason that I persuaded the Prime Minister, who in turn persuaded Her Majesty the Queen, that the stone should be returned to Scotland—and the reason it came up as an issue—had nothing whatever to do with any symbolism.

[Noble Lords]

Oh!

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[Lord Forsyth of Drumlean]

I shall tell noble Lords the truth of the matter. I do not know if it has been made public before. The reason it happened was that the registrar wished to release the papers in connection with the theft of the Stone of Scone on Christmas Eve in the 1950s, which showed that the then Conservative Secretary of State was then in favour of returning the Stone of Scone to Scotland. It was not returned because at that time Scottish nationalist elements were blowing up postboxes because they had EIIR on them, not EIR, and the then Government decided that to return it at that time would be to give encouragement to those lawless courses. I realised full well that people such as my noble friend Lord Purvis, when those papers were released, would immediately start a campaign and therefore reconsidered the merits of returning the Stone of Scone, on the basis that a treaty, the treaty of Northampton, was signed by the English that promised to do so. As Secretary of State, I felt that, after about 600 years, I ought to maintain the rule of law. It certainly was not a stunt. Given the trouble we were in in 1996 politically, if my noble friend thinks that I thought that returning the Stone of Scone would make one whit of difference, he underestimates my intelligence.

I say to this Government: this constitutional tinkering absolutely has to stop. Look at us—the House of Commons, the other place, went down the other evening at 6 pm. Have we not learnt from the Fixed-term Parliaments Bill? Have we not learnt from the Recall of MPs Bill, which I have been involved in? We have had several debates where I have said, “This is not going to happen. If someone gets into trouble, their party will withdraw the whip and they will not be able to stand”. Very sadly—most unfortunately, I think—Sir Malcolm Rifkind now finds himself with the whip being withdrawn within 12 hours, before any report is given. The whip is taken away from him and he cannot stand. This is coming from a Government who are telling us that Members who get into trouble have the right to face the electorate and the electorate will decide.

This kind of constitutional stuff, which is about partnerships between parties and trying to seize political advantage, was started by Tony Blair and it absolutely has to stop. I very much regret that this House can do nothing about it because of the way that the Government have approached it.

[Lord Maxton (Lab)]

My Lords, can we assume that the noble Lord is agreeing with the idea of having a constitutional commission and convention that would look at the whole of the British constitution before deciding any of these issues?

[Lord Forsyth of Drumlean]

I am grateful to the noble Lord. As he knows, I do favour that. I believe that the Liberals favour having a constitutional convention and the Labour Party favour having a constitutional convention. Perhaps if we called it something else—let us call it a constitutional convocation or a bright idea—perhaps then we could get a consensus. I absolutely agree with the noble Lord: these things need to be considered; they need to carry wholehearted agreement; and, of course, with each step along the road that is made without thinking of the long-term consequences, it becomes even more difficult to unravel and create a proper settlement. So I entirely agree. On that note of consensus, I hope I have persuaded the Minister to withdraw this ridiculous order.

[Lord Tyler (LD)]

My Lords, my noble friend will be astonished to hear that I agree with him on one of the main points that he has been making. However, it is about time that somebody from another part of the United Kingdom commented on my noble friend’s very proper regard for the consequences that he has identified for other parts. I am a fellow Celt, but I cannot pretend to be speaking on behalf of Scotland. He is of course correct that this is not something that can simply be left across the border. We would not be speaking about it in your Lordships’ House if it did not have wider implications.

I want to return—this is why I felt the need to speak—to the Constitution Committee’s report, particularly to the contribution of the chairman, my noble friend Lord Lang of Monkton. The critical sentence in the report is the warning about this potentially piecemeal and incremental approach to changing the voting age. What the committee should have gone on to do—this is the missing sentence, if I may humbly submit this to members of the committee and its chairman—was say that the Government should have picked up my Private Member’s Bill, the Voting Age (Comprehensive Reduction) Bill of the previous Session, which received a Second Reading in your Lordships’ House with encouragement from Members on all sides.

I thought that the Minister very neatly put on one side the implications of this order for other parts of the UK, as I will come back to in a moment. Obviously, it is unacceptable in the UK that the critical foundation stone of our representative democracy—the franchise—should be quite different in different parts of our United Kingdom. If Scotland had decided to separate from the other nations of this country, this could have been a discrete issue for the Scottish Parliament, but it is not, they did not and therefore it is of relevance to us all. As my noble friend has indicated very effectively, there has already been a very practical demonstration of the maturity of young people in the Scottish referendum campaign. I am delighted that my noble friend Lord Cormack is here because it was he who gave a practical example during the previous debate of the way in which his granddaughter took a very active and well informed part in the debates.

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[Lord Stephen (LD)]

My Lords, it seems to me that at times in this debate we have drifted some distance from the core issue of the Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015. What we have here today is quite a narrow technical measure that focuses on the change that will potentially be introduced to give votes to 16 and 17 year-olds in Scottish Parliament elections and in Scottish local government elections. As I understand it, all the parties in this Chamber, in the House of Commons and in Scotland support that move. Therefore, this is about practical, simple and straightforward politics.

Frankly, I do not care how many times the Government have changed their position from one document or from one day to the next. Sometimes in this House we very much welcome a change of position from the Government as long as they get to a good position, and surely that is the core issue here. I think that on this they have reached a practical, sensible, progressive and positive way forward. To be frank, having read the document, I am no great fan of supermajorities. I do not know how many other noble Lords recall that my noble friend Lord Forsyth spoke out against supermajorities. A supermajority is not something that I particularly wish to see. As I understand it, it was agreed as a compromise as part of the tough negotiations under the Smith commission that the Labour Party, as well as the other parties, was very much involved with. The other parties were not necessarily pushing for that supermajority. Regardless of that, let us come back to the issue. This is a simple, straightforward—

[Lord Forsyth of Drumlean]

I am not sure whether the noble Lord is speaking for himself or for the Liberal party, but when he says that he is not that keen on supermajorities—a view that I share—does he think that that should apply to the other things, other than the franchise, which at the moment, according to the Government, would be covered by a supermajority?

[Lord Stephen]

I am simply explaining my personal position, which is that of being sceptical about the need for supermajorities. However, they are not unique and if, as part of achieving consensus on the way forward on some of these issues, that was the position adopted by Smith, I could understand the background and the reasons for it.

Coming back to the issue in hand today, I think that this is a much more straightforward measure than we have reflected in our debate. The danger is that it will look as though we are dragging our heels and that we are a bunch of elderly dinosaurs who really do not want this to happen. That is a real concern. The debate is one thing but the suggestion in the headlines in the press that it will lead to, and in the political discussion in Scotland, will be that 16 and 17 year-olds do not have—what was the phrase used earlier?—“intellectual maturity”. Sometimes you could debate whether 30 year-olds, 50 year-olds or 70, 80 or 90 year-olds have intellectual maturity. I hope that that is a debate that we will never have, and I hope it is not an issue that we will focus on in terms of extending the franchise to 16 and 17 year-olds. Some of them have incredible intellectual maturity and a real interest in political issues. I say to my noble friend Lord Forsyth that I think they could make very good local councillors or Members of the Scottish Parliament.

I recall that when I was elected at the age of 22 I was the youngest councillor in Scotland. That felt very young at the time. You could be 18 when you voted but under the then Conservative Administration you had to be 21 before you could stand. I stood and was elected. I always used to argue that it would be very bad if all parliamentarians were 21 or 22 years old but that it was very good that some of them were young people, and I would argue the same today. I would argue to extend the franchise to 16 and 17 year-olds because I think that if you can get married and have children, join the Armed Forces and pay taxes, you should be entitled to a vote. It is a simple, practical and straightforward measure, and it represents constitutional change. I support the idea of a constitutional convention. Constitutional change in this country can be difficult to achieve, so I say, “Grab it when you can and build on it”. I think that we will build on it and that votes for 16 and 17 year-olds will come for all the rest of the United Kingdom in all elections.

However, it is not uncommon to have a different franchise for different elections. We have it already with EU elections compared with local government elections, UK elections and Scottish Parliament or Assembly elections. Different people have a different entitlement to be on the register. It is a different situation from that of age but it is a different register and a different entitlement. Similarly, in Scotland I would argue that far more important than a move to introduce votes for 16 and 17 year-olds was the move by the Scottish Parliament to introduce fair votes by introducing proportional representation for local government. That change was never introduced in the rest of the UK, although I hope that one day it will be. However, that is the sort of progressive constitutional change that I and my Liberal Democrat colleagues want to see right across the United Kingdom.

So let us vote for change. Let us try to implement change, making it coherent, well thought out constitutional change that is not piecemeal. Sadly, my experience of politics in this country is that change tends to be far too piecemeal, and it often tends to be long delayed and not very progressive.

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[Lord Stephen]

I am not suggesting that we do. I have supported this measure since becoming a councillor at the age of 22. I have taken part in many debates on the issue and have heard many people challenge the position for the reason mentioned in today’s debate—that of intellectual maturity. It is a charge that I would like to rebut. The number of young people who were involved in the referendum debate in a constructive and positive way—not all of whom by any means supported Scottish independence—and who took a very mature, well thought out and well researched view on the matter underscored the importance of this issue. It also underscored why most Peers today, I hope, support this extension of the franchise. To make it consistent, it should be an extension across the UK, and the sooner that can happen, the better.

[Lord Forsyth of Drumlean]

The noble Lord has characterised us as being opposed to votes for 16 year-olds. For myself, I think that the genie is out of the bottle. We will need to have votes for 16 year-olds throughout the United Kingdom, and I would expect the coalition Government to come forward with proposals to that effect, having had a proper consultation period and having considered what the age of majority should be. The noble Lord has been very eloquent but can he deal with this point? It is not a unionist position to do this on a piecemeal basis. Also, if he is right about 16 year-olds, as I am sure he is, what on earth are we doing stopping them buying a packet of cigarettes or buying a drink?

[Lord Stephen]

I agree that there is great logic in the argument that has already been put forward in the exchange with my noble friend Lord Purvis about the age of consent, the age for voting, the age for driving, the age for marrying and the age for watching a film with an 18 certificate. We should be reviewing these things, but I am making a practical point. There is a strong argument for much greater consistency and I firmly believe that today’s measure can be part of driving that argument forward and can be the beginning of further change for the rest of the UK. That is why I think that today’s moves are very important. It is almost as if we have flushed out the position of some noble Lords that they do, in fact, support the extension of the franchise to the age of 16, and I warmly welcome that. As Peers and as politicians, we should spend more time engaging with young people, encouraging them and being positive about them. Too often in politics we tend to demonise young people and do them down, and that is a concern of mine.

I finish by paying tribute to Lord Mackie of Benshie, who, sadly, passed away last week. He had an incredible war record. Without people like him, the democracy that we have today simply would not exist. He had an incredible track record both in the House of Commons and in this House. My recollection of him is as a mentor. I got involved in politics at a very young age. I was 22 when I was first elected to the council, and very quickly after that I got involved in campaigning with Lord Mackie of Benshie, who was the president of the Scottish Liberal Party. He was a big influence in my life. I have no idea what his views on these issues would be and I do not pretend to set down his opinion, but I am sure he would be delighted that we are debating this issue and trying to engage more young people in politics, because that is what he did with me. He was very much a mentor, a counsellor and somebody who inspired my place in politics; and each of us can have that role for other young people. The tenor of the debate that we have on these issues is very important. That is why I believe that this Motion should go forward for approval.

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The House and, indeed, the public owe a great deal to the noble Lord, Lord Lang of Monkton, for the brilliant consideration of this measure by the Constitution Committee. He was absolutely right to raise these concerns. The reaction of some of the Scottish Nationalist people, and the venom with which they responded and in particular turned against the noble Lord, Lord Lang, were completely out of order. He and his committee were providing a good service; it was right that they did that and that these issues were discussed. However, the thread running through them was, I believe, a feeling that there was a sense of panic in Scotland. The noble Lord often stays in Scotland. As I said, I do not agree that there was an air of panic. There was a feeling that something had to be done to respond to the wishes of the Scottish people, and that they were looking for change as well. I give way to the noble Lord, Lord Forsyth.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord. He seems to be making the case that there was no last-minute panic with the so-called vow in Scotland. I do not know how he can possibly make that case, because many of the 16 year-olds—and others, like me—had already voted by post when the so-called vow was published. The vow was not even called a vow by the privy counsellors concerned. This was an antic by the editor of the Daily Record, who put the declaration on the front page and called it a vow, and it was done in the last 48 hours of the campaign. If that is not panic, I do not know what the definition of “panic” is.

[Lord McAvoy]

The noble Lord referred to the Daily Record. In a previous life he was not so keen on quoting the Daily Record when it called for his resignation over various matters.

This is about not only the vow but the conduct of Gordon Brown in leading the Better Together campaign in public meetings. He was accompanied by Ruth Davidson—she performed brilliantly as well and sat on the same platform as him—and the message got through to the Scottish public. The thoughts of Gordon Brown—not the thoughts of Chairman Mao—and his attitude to Scottish independence and a more powerful Scottish Parliament will go down in history. The noble Lord, Lord Forsyth, may not like it but certainly he will be viewed as the architect of that.

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[Lord McAvoy]

Charles Kennedy, yes; what a time it was for Charles—a former member of the SDP, but there we are.

[Lord Forsyth of Drumlean]

On the subject of Gordon Brown, does the noble Lord, Lord McAvoy, agree with his repudiation of the Smith commission’s proposals that the Scottish Parliament should have power to levy income tax?

[Lord McAvoy]

This is not about what Gordon Brown says now. I cannot deal with a matter that Gordon Brown has no influence on other than within the referendum campaign. What was said in the Smith commission is agreed. Perhaps the noble Lord, Lord Forsyth, will send me these alleged quotes from Gordon Brown and let us move on. I remind the House that it was the disparaging remarks about Gordon Brown from the Benches opposite that inspired my defence of him. I will always come to his defence.

My noble friend Lord Reid is right: there may have been panic in London—I am not party to the higher echelons of power in London—but in the political parties in Scotland there was no panic. There were the strident calls of the SNP and its negative reaction to the referendum result, but that was it.

It is quite clear that the changes proposed in this order are welcome in Scotland. I am Scottish and involved in Scotland and I know that the order is welcome, and it is right that the Secretary of State has brought it forward. As I have said, the noble Lord, Lord Lang of Monkton, has done the House a service by raising these issues and allowing the Minister to respond to them. I make it absolutely clear—even if it invites further interventions—that we are fully behind this order. It reflects the Smith commission recommendations and the requests in Scotland that we should do this, and it is right that the Scottish Parliament should have the power to do so. It is also right and logical that the Scottish Parliament should be given the power to alter the franchise for local government elections.

I hope that we can move forward with consensus and use the consensus that exists in Scotland. Everyone knows that relations between the Labour Party and the Liberals have not always been consensual; the Conservative Party has certainly never been too consensual —especially when the noble Lord, Lord Forsyth, was Scottish Secretary, but I will not dwell on his guilty past—but the consensus is there. Without any doubt we fully support the order and wish to place that on record.

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[Lord Wallace of Tankerness]

Yes, I did. I voted out of sheer conviction that the right thing to do was maintain Scotland’s place in the United Kingdom.

My noble friend Lord Stephen asked us to do a reality check on what we are about here. This is taking forward recommendations from the Smith commission. The Smith agreement is important, not least because it was endorsed by five political parties in the Scottish Parliament. Looking back, the Scottish Constitutional Convention engaged many parts of civic society in Scotland but, in terms of political parties, it included only the Labour Party, the Scottish Liberal Democrats, the Scottish Greens and the Scottish Socialist Party. It did not include two large parties: the Conservative Party and the Scottish National Party. The Calman commission, the recommendations of which led to the Scotland Act 2012, engaged the Labour Party, the Conservative Party and the Liberal Democrats, as well as others, but it did not engage the Scottish National Party. Here we have an agreement that has been fed into by representatives of five parties, including the Conservative Party, the Labour Party, the Liberal Democrats, the Scottish National Party and the Scottish Green Party.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend. How on earth can he say it included the Scottish National Party, which repudiated it as soon as it was published?

[Lord Wallace of Tankerness]

It is important to remember that the commission involved the Scottish National Party, which signed up to it. We are seeking, with this order, to implement one of the parts of that agreement. I have not heard anyone in this debate query whether we should be following this course. No one has acknowledged or faced up to the fact that, if this was done by primary legislation in a Bill after the general election, it would be almost impossible to do all the work required to get 16 and 17 year-olds onto the roll between Royal Assent—at the end of this year or even at the beginning of the next—and the election in May 2016. It was, therefore, necessary to do it by a Section 30 order. That order is what gave the Scottish Parliament the power to legislate for the referendum itself. No one has gainsaid that this is an appropriate way to honour the Smith agreement.

My noble friends Lord Forsyth and Lord Lang talked about some of the important data protection issues. My noble friend acknowledged that we are seeking to put in place some ways to take care of these. The order will allow the Scottish Government to set up their own system of identity checking for 14 and 15 year-old attainers and it will be for them to decide how this will be put into effect. I repeat what I said in my opening remarks: the Scottish Government are familiar with the Data Protection Act and must abide by data protection legislation. I recall that this important issue was raised when the legislation for the referendum was being drawn up. I have not since heard any complaints that proper procedures were not put in place to address these important issues.

The noble Lord, Lord Reid, and my noble friend Lord Forsyth spoke of an apparent inconsistency on the question of supermajority. As my noble friend Lord Stephen pointed out, it does not matter so long as you get to the end result and it is the right one. My noble friend Lord Forsyth quoted from page 17 of the command paper. That quote—which is in a box—is from the Smith commission agreement. The agreement itself does not suggest that there should be a supermajority for this one measure of extending the franchise to 16 and 17 year-olds and I do not recall anyone doing so. I know the logic that my noble friend Lord Lang and his committee pointed to, but my right honourable friend the Secretary of State announced very early on that we would deal separately with the power to extend the franchise to 16 and 17 year-olds and no one has suggested that the supermajority should apply to that. The Government’s position has not changed on that at any time.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend. I may be mistaken, but I thought that the Government published draft clauses that provided for a supermajority in these circumstances, in line with the Smith commission proposals. I thought I had asked him, at the Dispatch Box, why on earth we were introducing the alien concept of supermajorities and that the Government had defended it.

[Lord Wallace of Tankerness]

There is provision in the draft clauses for supermajorities covering a range of matters. The Smith commission recommended this but, so far as I can see, no one has ever suggested that it did so with regard to the extension of the franchise to 16 and 17 year-olds. The recommendation regarding extending the franchise for Scottish Parliament elections to 16 and 17 year-olds was a very separate one and we have proceeded on that basis. There has not been any switch in position, as has been suggested. As I indicated earlier, to include such a provision in the current order would involve detailed consideration on how to amend very key sections of the Scotland Act. For example, thought would have to be given to how the role of the Presiding Officer would be affected by this in deciding whether the provision is applicable and the relationship that the provision would have to the limits of the Parliament to make law. Given that there was never any dubiety about it, the better course was for the order to be in the simple form in which it is presented to your Lordships’ House today.

I fully acknowledge that it was not part of the recommendation that local government should be taken forward now. However, it makes good sense for practical purposes. The franchise for local government elections in Scotland is the same as that for Scottish parliamentary elections. I rather suspect that, if the Government had not done this, someone on the Constitution Committee might have said, “This is what you get if you legislate in haste. Does the Minister not appreciate that the franchise for local government is linked to the franchise for Scottish parliamentary elections? It will lead to considerable additional cost if they are separated”. It is a very practical thing to do and the timing is important. If this were to wait until primary legislation went through both Houses of Parliament and got Royal Assent, there would still need to be legislation done by the Scottish Parliament if it chose to. It would be very challenging to get that done, without breaking some of the timing rules, before the Scottish local elections in 2017.

I listened carefully to my noble friends Lord Forsyth and Lord Lang. My noble friend Lord Forsyth mentioned the referendum experience in a number of respects. Neither of my noble friends referred to the fact that 16 and 17 year-olds voted in the referendum on 18 September. I am not going to join those who thought that the whole referendum campaign was a great festival of democracy. Some of it was not very nice at all. Some noble Lords will recall messages that were not nice being tweeted and read out in our debates. However, people of all parties thought that the engagement of 16 and 17 year-olds worked. Schools held hustings and there was an opportunity for 16 and 17 year-olds to ask proper questions of MPs and MSPs from different sides. There was a turnout of 75%. If we have that turnout among those aged over 18—or 90, or whatever—in the forthcoming general election, it will be a significant improvement on 2010. Young people were not only involved and engaged: they turned out and may have set a lesson to the rest of us about how people might engage.

Therefore, the Smith commission agreement on this particular recommendation did not just come out of the air. As the noble Lord, Lord Empey, said, it is not as though, had Alex Salmond said, “Give us 15”, it would have been 15. I do not think it would have been; it was for 16 and 17 year-olds. The Smith commission was informed by that experience and by how those people had engaged.

It would be very odd if a number of people who could have voted, and possibly did vote, in the referendum were not allowed to vote in the 2016 election—as they would not be if this change does not take place. This agreement came forward and the Government, with the support of the Opposition, said that they would wish to see it happen. If we were suddenly to renege on that promise, the damage would be incalculable. It would be said that this is just the first of many other things that we would renege on. We are therefore asking the House to approve an order that transfers legislative competence and to do something that all parties in Scotland have asked for. As the noble Lord, Lord McAvoy, said, it is welcome in Scotland. We should not stand in the way of that. I therefore commend the order to the House.

Scotland: Draft Legislation

Lord Forsyth of Drumlean Excerpts

Thursday 22nd January 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I thank my noble and learned friend for repeating the Statement. He said that this is what the people of Scotland voted for, but it is certainly not what I voted for. I regard it less as a milestone; it is probably more likely to be a tombstone for the United Kingdom if we continue in this way by making piecemeal constitutional reform.

I wish to ask my and learned noble friend about the draft clauses in a constructive manner. Clause 4 introduces the extraordinary new concept of a “super-majority”, whereby matters can be passed by the Scottish Parliament only by a two-thirds majority. That includes, according to the draft clause,

“the persons entitled to vote as electors at an election for membership of the Parliament”.

As I understand it, we have just given the Scottish Parliament the power to alter the election franchise for 16 year-olds. Before the ink is even dry on this, we are already changing it. Why are we introducing this concept of a two-thirds majority being required to alter,

“the number of constituencies … the number of regions …the number of regional members”,

and,

“the systems by which members of the Parliament”,

are to be introduced? Is that going to apply to Westminster and the Welsh Assembly? This is a huge constitutional innovation. What is the justification for it?

To reflect the points made by the noble Lord, Lord McAvoy, why is there nothing in these draft clauses that sets out how the Barnett formula funding will be affected by the implementation of these powers? Surely that has to be there in primary legislation so that there is no question about how that will operate. As to the narrative on the paper, all that it says about funding is that,

“the Scottish Government’s Barnett-based block grant will be reduced to reflect the tax revenues that the UK Government will forgo as a result of devolution”.

What on earth does that mean?

[Lord Wallace of Tankerness]

My Lords, picking up on that final point, it means what it says: if there is devolution of income tax, which we are proposing to implement, the UK Government—the Revenue and the Treasury—will not receive the income tax receipts from Scotland on earned income and therefore the block grant will be reduced accordingly. That will be indexed. Box 1 on page 29 of the Command Paper describes how this is intended to work in terms of what we have already passed with regard to the Scottish rate of income tax under the 2012 Act. The noble Lord will see how it is intended to work with regard to the proposal that Parliament has already passed, one that can proceed for income tax as a whole and, indeed, for other taxes.

With regard to the two-thirds majority, it is not such a novel procedure as my noble friend suggests, because, although I suspect that he opposes it, it was nevertheless passed by this House when it introduced the Fixed-term Parliaments Act early in this Parliament with regard to any early general elections that might be called in the other place. We are actually implementing what the noble Lord, Lord Smith of Kelvin, recommended, which is that for matters as fundamental as the franchise, the number of constituencies and the electoral system we will provide “an adequate check”, as he put it in his commission’s report, on the Scottish Parliament. After all, it is a unicameral Parliament and a Government of a single party should not ride roughshod over the interests of other parties on a simple majority and completely change the electoral system. That is why the commission believed that on matters as fundamental as that, given that that power is being transferred from this Parliament to the Scottish Parliament, there ought be an adequate safeguard—and that safeguard is a two-thirds super-majority.

Scotland: Devolution

Lord Forsyth of Drumlean Excerpts

Wednesday 29th October 2014 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble friend. None of these arguments is new. They were gone through in great detail in the 19th century at the time of Irish home rule. The conclusion then was that the way to deal with this fairness was to reduce the number of MPs coming from Ireland. Why can the same not be applied in the case of devolution to Scotland?

[Baroness Stowell of Beeston]

Certainly—and I speak for the leadership of my party—we are clear that the best way in which to deal with this is through English votes for English laws within the House of Commons. That is something that we can tackle and deal with quickly.

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[Lord Turnbull (CB)]

My Lords, in my 35 years in Whitehall, I spent more time on public spending than on anything else, so the Barnett formula was never far from my thoughts. It was therefore with some alarm that I heard that “The Vow” by the three party leaders referred to continuing the Barnett formula. If that means continuing it as it operates now, that is an outcome that I would strongly oppose.

However, the actual text of the vow may offer some reassurance and a hint of a way forward. The front page of the Daily Record of 16 September says:

“And because of the continuation of the Barnett allocation for resources, and the powers of the Scottish Parliament to raise revenue, we can state categorically that the final say on how much is spent on the NHS will be a matter for the Scottish Parliament”.

Thus, if Scotland has a significant control over its revenue, it will ultimately control what the level of spending is on any devolved service. That condition can be satisfied by a wide range of Barnett formulae. It does not commit us to precise figures or method of calculation.

Note also a reference earlier in the vow to,

“sharing our resources equitably across all four nations”.

There is no way that the Barnett formula, as currently operated, can be regarded as “sharing our resources equitably”. Its main flaws are, first, that it adjusts the population proportion with a long lag. If, as is the case in Scotland, the growth of population is slower than in the rest of the United Kingdom, Scotland is always over-rewarded. Secondly, this flaw is compounded by the fact that, when eventually there is an adjustment to the population ratio, it applies only to the increment of spending in England at the next spending review; no attempt is made to correct past overpayment.

The best analogy I can produce is from income tax. Someone sends in a tax return and the inspector finds that the coding has been too generous. But instead of recouping the error in the next year, the inspector applies a new, less favourable coding, but only to the change in income from this year to the next. In this way, all the previous errors, which in the case of Scotland are all in the same favourable direction, are allowed to accumulate. They have now reached grotesque proportions.

Scottish public spending is now £1,600 per head greater than in England and £500 per head greater than in Wales. These are huge sums in relation to income per head, of the order of £20,000 a year. This disparity funds policies in Scotland, such as care for the elderly, university fees and prescription charges, which are simply unaffordable elsewhere in the UK. To put it another way, a Scottish family of four receives the same social security benefits as an English family, but on top receives an extra £6,000 per year in what we used to call the social wage.

What is the explanation for this? The answer, in a word, is appeasement. Over 30 years, neither Conservative nor Labour Governments wanted to confront voters in Scotland. When the House last considered this in the committee chaired by the noble Lord, Lord Richard, in 2009, it was suggested that the way forward was to relate the transfers to needs. But, as Mr Salmond—not Lord Salmond—frequently boasted, Scotland is a prosperous nation. Scottish Government figures claim that Scotland has a GDP per head 11% higher than that of the United Kingdom as a whole. Wales, on the other hand, has a GDP per head of about 25% lower than the UK average.

Had I served on that committee in 2009, I might well have signed up to the recommendation to move to a needs basis. In my time at the Treasury in 1993, we investigated that, although it came to nothing. However, I draw noble Lords’ attention to the analogy of the rate support grant, which is a needs-based thing, which turned out to be a statistical nightmare. I no longer think that this needs basis is necessarily the right answer when the freedom for Scotland to raise taxes is being expanded. Instead, we could move to a much simpler system under which all nations get a block grant of the same per capita amount and the devolved Assemblies are given the freedom to top that up, or not, as they please. In the process, as the noble Lord, Lord Empey, mentioned, they would assume a proper accountability.

The other change is that the population ratios—

[Lord Forsyth of Drumlean]

I am grateful to the noble Lord, and I agree with everything that he has said. Is not the problem with his recommendation that there would be a huge gap in the Scottish budget, which would mean that Scotland would end up as the highest taxed part of the United Kingdom and worse off in terms of public services?

[Lord Turnbull]

Not necessarily. Scotland would have to bring its spending into line with England and it would be getting the same grant from the centre as England. My recommendation corrects a favourable anomaly; it is not impoverishing Scotland compared with England.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, it is a great pleasure to follow the noble Lord, Lord Bew. The great weakness in the McKay report was that it addressed only the West Lothian question and not the much bigger one of the imbalance that arises because of the Barnett formula. I am sure he would agree with that.

Anyone listening to Nicola Sturgeon, who is the sort of First Minister designate in Scotland, on the “Today” programme this morning demanding a Scottish veto on any European referendum result could be forgiven for thinking that the nationalists had not been comprehensively defeated on a massive turnout on 18 September. Not content with one referendum on Europe, she wants to have four. Alex Salmond was absolutely convinced that he was going to win the campaign, where he used the patronage of the Scottish Government ruthlessly—and, by the way, is still doing so, ringing people up and saying he is going to get them because they did not support his side of the argument. Intimidation reared its ugly head at every level, inspired by these nationalists, causing unionists to be fearful about acknowledging their support for their cause.

In the end, Alex Salmond failed because of economic uncertainty. His support, however, came from an electorate, as the noble Lord, Lord McConnell, pointed out, utterly disillusioned with the political system and still hurting from the consequences of the financial crash of 2008. The nationalists, just like Mr Farage and UKIP in the south, offered hope and easy answers, and many hard-pressed voters thought that things could not get worse for them and they could risk taking a chance on separation. The separatists exploited the consequences of poorly thought-out constitutional change and complacency and lethargy in their opponents, as the noble Lord, Lord McFall, pointed out earlier. The Prime Minister allowed Alex Salmond to choose the question, the timing and even the franchise for the referendum, despite it being the United Kingdom’s constitutional responsibility. The result was that we had a two-year long campaign during which all the levers of the Scottish Government were used to advance the nationalist cause and promote a grievance culture. The question on the ballot paper demanded a negative answer to maintain the status quo. Instead of, “Should Scotland remain part of the United Kingdom?”, Salmond insisted on, “Should Scotland be an independent country?”. As my noble friend Lord Cormack pointed out, the unionists were thus forced to campaign for a no vote while enduring attacks from Salmond that the campaign was negative. Of course campaigning for a negative is negative. He deliberately set it up that way.

He promised that this referendum would be a once-in-a-generation event. He said that because he thought that he would win it. His word has proved to be worthless; it turns out that he had the lifetime of a butterfly in mind. He resigned as First Minister in defeat, leaving his left-wing successor—she is left wing—to renege on the nationalist promise and refusing to rule out a further referendum. It is clear that a vote for the SNP is now a vote for divisive, disruptive and damaging neverendums. Salmond himself will almost certainly fight the general election, hoping to win a seat at Westminster, in the Parliament he so despises, and lead a ragbag of disruptive latter-day Parnellites. That is his plan.

The United Kingdom has been put at risk by tactical misjudgments and constitutional tinkering for political advantage. The Conservatives, Labour and the Scottish nationalists have all been opposed to the creation of a Scottish Parliament in my lifetime. They have changed their positions for reasons of political expediency rather than principle and have sought to amend the constitutional position to suit themselves. Alex Salmond was opposed to devolution and the creation of a Scottish Parliament with limited powers but changed his mind when he decided that it could be a Trojan horse to destroy the United Kingdom. Sadly, my Labour opponent is not in his place. As a friend, I have great respect for the noble Lord, Lord Robertson of Port Ellen. When I was Secretary of State, he was my shadow. He predicted that devolution would kill nationalism stone dead. Labour thought that it would enable the left to keep the Conservatives out of power in Scotland and that they could devise a complex voting system which would ensure that no one party could dominate the Scottish Parliament. They adopted the language of nationalism, branding the Conservatives as anti-Scottish, arguing that the Conservatives had no mandate to govern in Scotland and denouncing our policies as Anglicisation. Even today, Labour MSPs have not learnt the foolishness of their actions because I see them in the newspapers contemptuously referring to their Scottish colleagues as Westminster Labour.

In 2011 the nationalists won an “impossible” overall majority in the Scottish Parliament with 69 seats on a manifesto that pledged an illegal referendum on independence. So much for devolution killing nationalism stone dead. Westminster had no choice but to grant it, but had delayed grasping the issue for too long. Gordon Brown as Prime Minister crushed a proposal to hold a referendum in 2008 from the Labour leader in the Scottish Parliament, Wendy Alexander.

In the final few days of the referendum campaign, after many people, including me, had already voted by post, an opinion poll which had eliminated the “don’t knows”—who turned out to be the “no but won’t says”—put the separatists in the lead. The three unionist party leaders panicked and published a joint statement—not a vow—in an exclusive for a tabloid newspaper, pledging more undefined powers to the Scottish Parliament. This was done by three privy counsellors without consulting Parliament and, we now learn, without even consulting their party leadership in Scotland. Not since Henry VIII have we had laws enacted by proclamation, even by such distinguished figures as Nick Clegg, Ed Miliband and the Prime Minister. There have been several references to a vow during this debate. The statement was turned into a vow by the newspaper’s headline writer. It proclaimed:

“We agree that the UK exists to ensure opportunity and security for all by sharing our resources equitably”—

as the noble Lord pointed out—

“across all four nations to secure the defence, prosperity and welfare of every citizen. And because of the continuation of the Barnett allocation for resources and the powers of the Scottish Parliament to raise revenue we can state categorically that the final say on how much is spent on the NHS will be a matter for the Scottish Parliament”.

It is, of course, complete gobbledygook.

The Barnett allocation, as the noble Lord, Lord Turnbull, pointed out, gives Scotland an extra £1 per person for roughly every £5 spent in the rest of the UK and is not based on need. A commitment, such as in this so-called vow, to share resources equitably would mean ending Barnett and would leave an enormous black hole in Scotland’s block grant. We have just won the argument in the referendum campaign that even if Scotland had all tax revenues she would be utterly dependent on the oil price or very much higher taxes just to maintain the status quo. Similarly, Barnett gives Scotland roughly 10% of any increases in expenditure decided at Westminster, and any allocation in respect of the NHS will be determined there, not in Scotland. When water was privatised in England, the block grant was reduced and the funds required to maintain it in public ownership came from the allocations to other services.

These promised new powers and the funding arrangements are not thought through; nor are the consequences for the rest of the United Kingdom which had no say in the referendum. The reason given for having no devo-max question was that it was a matter for the UK as a whole while independence was for Scotland to decide. With a general election due next May, the necessary legislation cannot be put through Parliament and there is no time to find an agreed solution which will bind the United Kingdom together and ensure fairness for each of its constituent four nations. Once again, political expediency is playing its part in handing the game over to the separatists.

The way forward must command support in every corner of the United Kingdom. The fact that 45% of the voters in Scotland on a turnout of 85% were prepared to abandon Britain cannot be ignored or fixed by more asymmetric devolution. Nor can the remedy be left in the hands of political parties. A constitutional convention drawn from Scotland, England, Wales and Northern Ireland and involving central, devolved and local government as well as civic society could address the issue of funding, the role of the Westminster Parliament, regional issues and the central purpose and benefits of a United Kingdom. This is not just a matter for Scotland but one for the British people as a whole if the United Kingdom is to be secured on sound foundations for the next 300 years.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the House has heard a very important and comprehensive range of contributions on complex and interlinked constitutional issues. I am pleased that we have had the opportunity to hear such a range of views and perspectives from all parts of our United Kingdom; it has been very important to hear views not just from Scotland but from England, north and south, as well as from Wales and Northern Ireland.

I was delighted to hear the contribution of the noble Lord, Lord Lennie, in his maiden speech. I understand that he is not only a Newcastle United fan but a participant in the Great North Run. No doubt that will allow him the stamina to take part in debates that go on for the best part of six hours. He summed up a recurring theme of our debate when he talked about the disconnect between politicians and voters that needed to be reduced. He entertained us and he informed us, and I know that the House looks forward very much to his contributions to your Lordships’ House in the future.

As noble Lords will have heard, the issues considered in this debate fall into three broad categories. The first relates to Scotland and the fulfilment of the joint commitment by the three party leaders to deliver more powers to the Scottish Parliament in light of the referendum no vote. The second category of issues relates to how to ensure that power is properly devolved and decentralised to all the nations, communities and individuals who comprise all parts of our United Kingdom. The third, separately but rightly—not as an alternative to devolution within England—considers how we might address the so-called West Lothian question, which has come about as a consequence of devolving power to specific parts of the United Kingdom.

I will address first the issue of the referendum in Scotland. It was legal and fair in its conduct and decisive in its outcome. It is important that we reflect on the points made by a number of noble Lords, including the noble Baroness, Lady Liddell, and the noble Lord, Lord Birt, who highlighted the appalling treatment of Nick Robinson in a country which ought to take pride in the freedom of the press and of the media. My noble friends Lord Stephen and Lord Forsyth also highlighted some of the many real problems that were encountered during the referendum. We should not lose sight of these when we think of what kind of Scotland we want to see in the future.

Some noble Lords questioned the fact that the Scottish Parliament devised the referendum. It was important that the referendum was, as it were, made in Scotland. In its immediate aftermath, we heard today of the conspiracy theories that counters at polling stations were filling in blank ballot papers. If the referendum had been devised at Westminster, the view that it was all a trick and a conspiracy would still be echoing loud and clear. The referendum was devised by the Scottish Government—they had everything going for them, and they lost. That is what makes the result decisive.

The people of Scotland expect that the interests of 100% of Scotland within the United Kingdom are taken forward. No one is under any illusion that a no vote was a vote for the status quo or that, somehow or other, we are out of the woods. As the noble Lord, Lord Hennessy, said—I think he spoke for many of us, myself included—our relief has been suffused with anxiety. As the noble Lord said, we are all seeking to achieve a strong and lasting settlement across the United Kingdom.

That is what we intend to do. The vow made by the Prime Minister, the Deputy Prime Minister and the leader of the Opposition has already been put into practice. My noble friend Lord Selkirk of Douglas sought the reassurance that that would be adhered to. Even those who contributed to your Lordships’ debate, who were sceptical about the commitments made, nevertheless all agreed that it was essential that that promise is honoured. It has been honoured. The Command Paper setting out the parties’ positions was due by the end of October. In fact, it was published two weeks ago. It is continuing to be honoured with the work of the Smith commission. It will be honoured because we have undertaken that the heads of agreement, which we look forward to the noble Lord, Lord Smith of Kelvin, announcing, will be taken forward with clauses by Burns Night.

Equally, the Scottish National Party should remember the statements it made ahead of the referendum that it expected it to be a once-in-a generation or once-in-a lifetime event. Nicola Sturgeon, whom I congratulate on becoming, as she will become, the First Minister of Scotland, said one year ahead of the referendum—on 18 September 2013—that this was a once-in-a lifetime opportunity for Scotland. If our parties are expected to honour commitments, the least we can expect is that the Scottish National Party will honour its commitment to the people of Scotland that this is for once in a generation.

The commission chaired by the noble Lord, Lord Smith of Kelvin, was up and running on 19 September. His terms of reference make it clear that the recommendations will deliver more financial, welfare and taxation powers, strengthening the Scottish Parliament within the United Kingdom. Last week, he convened the first meeting of cross-party talks to reach agreement on proposals for further devolution. All 10 nominees from each of the represented political parties attended. The noble Lord has said that they have,

“committed to work together to achieve a positive outcome to this process”.

The noble Lords, Lord McConnell and Lord Foulkes, emphasised the importance of this being, as it were, a principles-based approach rather than a horse-trading approach. I believe that that is what the noble Lord, Lord Smith, indicated after that first meeting. The parties have agreed a set of principles which include, but are by no means limited to, forming a substantial and cohesive package of powers, enabling the delivery of outcomes that are meaningful to the people of Scotland, and strengthening the Scottish devolution settlement and the Scottish Parliament within the United Kingdom, including the Parliament’s levels of financial accountability. The noble Baroness the Leader of the Opposition, as well as the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lord Glasgow, sought an express assurance that that would be within the context of the United Kingdom honouring the outcome of the referendum. There is also a principle that it will not cause detriment to the United Kingdom as a whole nor to any of its constituent parts.

However, this process is not just about the parties. The referendum saw an opening up of civic engagement, and the noble Lord, Lord Smith, has made it clear that he wants to hear from all the various groups to ensure that the recommendations that he produces are informed by views from right across Scottish society. By St Andrew’s Day, he intends to publish heads of agreement. As I have indicated, the Government are committed to turning these recommendations into draft clauses by Burns Night 2015. It is a demanding timetable but that is because the demand is there, in Scotland, to see change delivered, and it is a demand that we intend to meet.

Scotland will have further powers but we believe that that must be within the context of Scotland being a part of the United Kingdom. It must not start to unravel the fabric that binds us together, because that would be a denial of the outcome of the referendum. However, I very much share the view expressed by the noble Lords, Lord McConnell and Lord Elder, that the exercise of these powers is vital to the whole range of devolved responsibilities. It would be very refreshing to get the political debate back on to how we improve education, health, transport, agriculture, sport and local government in Scotland.

Not surprisingly, the question of funding was raised. I certainly take the point made by the noble Lord, Lord Empey, who referred to the “ATM approach”—a point reiterated by the noble Lord, Lord Kerr of Kinlochard—where there has been spending by the Scottish Parliament without responsibility for raising the funding. Indeed, my noble friend Lord Purvis of Tweed highlighted that fiscal responsibility gap. One of the objects of those who served on the Calman commission—as I did, along with my noble friend Lord Selkirk of Douglas, and the noble Lord, Lord Elder—was to address that and to ensure that there was greater accountability for spending. Therefore, with the additional tax powers come additional responsibility and accountability.

We have been clear as a Government that the act of devolution in and of itself should not result in a change in the budget, but it is important to note that this is also one of the key principles highlighted by the Smith commission. However, we have been equally clear—this addresses a point raised by my noble friend Lord MacGregor of Pulham Market—that if decisions are taken by the Scottish Government which result in a lower tax yield than the current arrangements, the Scottish Government will have to take spending decisions in line with that reduced tax yield. The noble Lord, Lord Kerr, will put me right on this but I think that the Azores judgment means that where tax is fully devolved and there is a shortfall, it cannot be topped up.

The noble Lords, Lord Blencathra and Lord McAvoy, made the point that, as more tax-raising powers are devolved, the amount of money transferred to Scotland under the Barnett formula will decline.

[Lord Forsyth of Drumlean]

Can my noble friend just deal with the point in the so-called vow where it says that our resources will be shared,

“equitably across all four nations”?

How is that consistent with keeping Barnett? Can he also deal with the notion that, by giving the Scottish Parliament more tax-raising powers, Barnett can be phased out? If the tax base in Scotland is lower than the uplift in the Barnett formula, compared to the average for the United Kingdom, how will that gap be filled?

[Lord Wallace of Tankerness]

My Lords, an important issue which was always there but was articulated well, not least by the former Prime Minister, Mr Gordon Brown, in the latter stages, was the notion of the social union; the equitable arrangement within our United Kingdom where, if one part of the kingdom is thriving, there is a transfer of resources to a part that is not doing so well. That is one of the important things that binds our United Kingdom together and I see that as an equitable distribution of resources within it.

Scotland: Independence

Lord Forsyth of Drumlean Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord Elder, who makes a great contribution to this House. He does not speak very often; I wish that he would speak more often than he does because that was a very thoughtful contribution. He is one of the architects of devolution, to which I was opposed, so it is a great pleasure for me to find myself completely in agreement with what he has said today about extra powers for the Scottish Parliament.

I believe that 95% of the Scots do not even know the additional powers that have been provided under the Scotland Act, which enables the Scottish Parliament to invent completely new taxes and set whatever level of income tax it chooses. So I agree with him: let us get across what we have done before we start thinking about doing any more. In fact, let us not talk about that at all now. This debate in Scotland is about whether or not we are going to remain in the club that is the United Kingdom, not about the rules and nature of the club.

I have something in common with Alex Salmond: both he and I took exactly the same position on an important constitutional matter. We were both opposed to devolution. I was opposed to devolution because I thought that it would provide a platform from which the SNP would be able to go about breaking up our United Kingdom. Alex Salmond was opposed to devolution because he shared the view of the noble Lord, Lord Robertson, that devolution would kill nationalism stone dead. It has not worked out that way.

Now we are in this constitutional mess. You have only to listen to the number of speeches around this Chamber because we have gone about piecemeal constitutional reform. So I also agree with the noble Lord, Lord Foulkes, that now we are in this mess, we cannot unilaterally look at extra powers for the Scottish Parliament; we have to look at the United Kingdom as a whole. It is complicated and therefore we need to have some sort of convention. That part of the report by the noble Lord, Lord Strathclyde, I entirely endorse.

I will be voting on 18 September for Scotland, for partnership and for a prosperous and secure future. I will be against inward-looking separatism and against the dissolution of Britain. I have to say to the noble Lord, Lord Stephen, who is not in his place but is a bit confused, that nationalism and patriotism are not the same thing. Patriotism is a noble thing. It can apply to people of all views and no views. I suggest to the noble Lord that he might like to look at George Orwell, who wrote a very famous essay that makes the distinction between nationalism and patriotism. That should sort out his views on that matter.

“United we stand, divided we fall” is a cliché but it is true. It is true of families, companies, political parties—as my noble friends are only too aware—and companies. It is also true of countries. The noble Lord, Lord Empey, reminded us in his brilliant speech that the union was formed to save Scotland from bankruptcy after the collapse of the Darien scheme. Some 300 years later, in 2008, Scotland’s First Minister wrote a letter of congratulations to Sir Fred Goodwin for doing the deal that brought down the bank and almost bankrupted our country; indeed, it would have been bankrupt but for the union that is the United Kingdom. There were £40 billion of losses by the Royal Bank of Scotland alone—one-third of Scotland’s GDP. Where would we have been if Alex Salmond had got his way? After 300 years’ experience of the triumphs and disasters that we have had as a United Kingdom, what kind of madness is it that cannot see that the United Kingdom needs Scotland and Scotland needs the United Kingdom?

The brilliance of the Act of Union was that it enabled Scotland and England to work in partnership, as my noble friend Lord Lang pointed out on this anniversary of the Battle of Bannockburn. We started to work together rather than against each other. Scots talent and ingenuity flourished on a global scale, protected by the wooden walls of the Royal Navy. It is utter nonsense to suggest that Scotland somehow lost control of its own affairs as a result of entering into the union. In the past 150 years, almost half the Prime Ministers have been Scots or of Scots descent or represented Scottish constituencies: Aberdeen, Gladstone, Bute, Rosebery, Balfour, Asquith, Bonar Law, MacDonald, Bannerman, Douglas-Home, Brown and Blair. These people—who were not all Tories, noble Lords will have noticed—made a fantastic contribution to our country. For three centuries we have worked together.

Now we have the NATO alliance, which provides security not just for us but for our allies, and the nuclear deterrent, which has delivered peace in our time. The alliance helped to set Europe free from communism. That is why President Obama and Hillary Clinton intervened, extraordinarily, in the debate; it is about not just our security but the security of the west. The noble Lord, Lord Robertson, was mocked by the nationalists for a speech in which he underlined the importance of that question.

The only certain thing in this world is that uncertainty and the unexpected will happen. Who will pay the bill for removing Trident? I have heard estimates of as much as £30 billion—that is a lot of money. Will it be shared between Alex Salmond and us? Some 10,000 jobs are dependant on Faslane. There are defence jobs on the Clyde and at Rosyth. Does anyone here believe that an independent Scotland will have its navy built in England? Of course not, so why does Alex Salmond assume that England would be any different and have its ships built in Scotland? What about the service men and women who have served our country so loyally? To maintain their careers, they will have to opt to be in the British Army as mercenaries fighting for a foreign country or alternatively join Alex’s “Dad’s Army”, with all that that means for the reduction in professionalism.

Some 800,000 Scots live in England and 40,000 English live in Scotland. I say to the noble Earl, Lord Glasgow, that yes, they will be made foreigners in their own country. Their own children and grandchildren will be disenfranchised of their birthright. Bleaching the blue saltire out of the union jack will be a caustic and messy business. My noble friend Lord Steel says that divorce is always expensive. Divorce should never be entered into lightly and it is certainly never easy. It is particularly awkward if circumstances force you to continue living next door to each other for ever more.

Alex Salmond’s White Paper tells us that we can have it all ways. We can keep the Queen, yet the leader of the yes campaign tells us we will need a referendum on whether to become a republic. We can stay in Europe if we need to, yet we have heard from people of experience like the noble Lord, Lord Kerr, that that is not quite so easy. Of course, we have heard from the Spanish Government on that, too. We can stay in NATO, a nuclear alliance, and be a nuclear-free zone. We can maintain our public services and be utterly dependent on the price of oil and the spending and investment decisions of multinational companies. We can keep financial services even though that will mean doubling the cost of regulations, which for one company alone, Standard Life, amount to £45 million a year. We can keep our banks even though their balance sheets would be 12.5 times the entire GDP of Scotland, and we can do that without any systemic risk or any risk of higher interest rates. We can save the money from North Sea oil and put it into an oil fund, and we can spend it at the same time. We can keep the pound without actually getting agreement from the English, who will guarantee Scots bank accounts and savings, and at the same time will have no interest in how much Alex borrows, spends or taxes.

Although 80% of our companies employing more than 250 people are outside Scotland, we can dismiss their increasingly vocal concerns as scaremongering. We can ignore the President of the European Commission, the President of the United States, the Governor of the Bank of England, the Permanent Secretary to the Treasury, the Secretary-General of NATO, the Prime Ministers of Denmark, Sweden and China, the ratings agencies, the Institute for Fiscal Studies, the CBI and the trade unions, and make a great leap in the dark. Salmond, a gambler, asks us to gamble our children’s future in a campaign—irony of ironies—funded largely from the proceeds of gambling. We owe it to our children to preserve this great legacy of theirs that is the United Kingdom and reject the separatists who, like Esau, would give up our birthright for a mess of pottage.

--- Later in debate ---

[Lord Wallace of Tankerness]

I can confirm that there were no prior discussions with the United Kingdom Government on that matter. Finally—

[Lord Forsyth of Drumlean]

Surely my noble friend is not telling the House that in the event of Scotland voting to leave the United Kingdom, that would not be a matter that would require legislation approved by both Houses of Parliament?

[Lord Wallace of Tankerness]

I made that clear earlier: we are talking about an interim Bill. As I indicated earlier, in response to the point made by my noble friend Lord Lang of Monkton, yes, we have indicated that there would have to be legislation. The scope and extent of it would very much depend on the terms of the agreement reached; they may not have to be very extensive. However, I confirm that there would have to be legislation to bring about independence. I hope that that is clear and unequivocal. My noble friend looks doubtful but I am saying that there would have to be legislation to bring about independence.

[Lord Forsyth of Drumlean]

That is a bit weaselly, because it suggests that a deal could be done between the two Governments and then there would be a kind of confirmatory piece of legislation. If we are talking about breaking up the United Kingdom, this is a matter not just for the Executive but for Parliament as a whole.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am very grateful to the noble Lord for clarifying that. I think that the question asked by my noble friend Lord Forsyth related to the Act enacting independence rather than independence itself. The noble Lord, Lord Robertson, is right: what happens after independence is a matter for the Scottish Parliament. What happens between a potential yes vote on 18 September and the date of independence is a different matter because the present law of the United Kingdom would still apply. As I believe that the present law of the United Kingdom, including the Scotland Act, does make provision for Section 30 orders, the orders would have to be passed—we are not changing the procedure of them—by both Houses of this Parliament, as well as by the Scottish Parliament.

I have also indicated to the noble and learned Lord, Lord Hope, that there are legal issues and doubts about whether that would be an effective way of doing it, because there is a concept that we cannot use secondary legislation to effect an outcome that is totally contrary to the intention of the original legislation—as Hadfield has it. The original legislation was not enacted to establish an independent Scotland, so using a Section 30 order to bring about de facto independence could be challengeable. That ultimately would be a matter for the courts, so I will not put it any higher than that; but such a course of action could be fraught. I hope that that is clear.

On responding to the particular points about the interim, I will bear in mind what is being sought.

[Lord Forsyth of Drumlean]

Before my noble and learned friend sits down, is he saying that there is no question of a Section 30 order being used to effect this?

[Lord Wallace of Tankerness]

Yes, that is what I said. It would not be the right way and would be susceptible to legal challenge.

The Scottish Government have set out proposals that contradict the agreement set out in the Electoral Commission statement. The Electoral Commission statement makes it very clear, and both Governments agreed, that as far as reserved matters are concerned, the United Kingdom Government would continue to be responsible for them. That is what the law is, and it will continue to be so until the date of independence.

I shall conclude briefly. We have had a very good debate, and we have been told to be positive. Such has been the success of the United Kingdom, however, that the yes campaign perhaps makes the best case for us. If one looks at the Scottish Government’s White Paper and at the yes campaign, one sees that such is the success of the United Kingdom, they want to keep much of it. They want to keep the monarchy; they want to keep the currency; they want to keep the Bank of England; they want to keep the National Lottery; they want to keep the NHS blood transfusion and transplant service; they want to keep the Royal Mint; they want to keep the research councils; they want to keep the air and maritime accident investigation branches; they want to keep the Committee on Radioactive Waste Management; they want to keep the Green Investment Bank; they want to keep the Met Office; they want to keep the Hydrographic Office; they want to keep the UK benefits system; they want to keep the DVLA; they even want to keep “Strictly Come Dancing” and “EastEnders”. What better advert can there be for the United Kingdom than how much of it the independence-minded nationalists actually want to embrace?

We have shown that we have a remarkable partnership of nations. For all our achievements and all our successes, and for all the support we give each other in difficult days, we have a United Kingdom of which we can be legitimately proud.

I apologise—I should have said more about the overwhelming challenge of a new United Kingdom. I had quite a bit to say on that. I will only say that I have heard noble Lords. Obviously, I cannot give a commitment tonight about a new convention for the whole of the United Kingdom, but I hear the comments from all round the House—cross-party and cross-country, and not just about the United Kingdom but about decentralisation. These are matters on which my colleagues in government will wish to reflect with the seriousness with which they were put forward in this debate.

I have tried to answer as many questions as I can. I sincerely hope that on the key date of 19 September we will be looking forward and not having to deal with some of the issues raised in the admirable report from my noble friend Lord Lang of Monkton and his committee.

Scotland: Independence Referendum

Lord Forsyth of Drumlean Excerpts

Thursday 30th January 2014 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I congratulate my noble friend on his brilliant speech and on finally stirring up the media south of the border to talk about the importance of the union and the United Kingdom and of the decision that lies ahead.

It is a great pleasure to follow the noble and learned Lord, Lord Cullen, who has done such distinguished public service in Scotland. We will never forget the way in which he dealt with the sensitive issues following the Piper Alpha disaster and Dunblane. His words about research are well worth consideration and I may return to that if there is time.

I know that it is a cliché to say, “United we stand, divided we fall”, but it applies to companies, political parties and families, and it certainly applies to countries. That is what is at stake here. It is important that we remember how this union came about in 1707. The truth is that it was an arranged marriage. It was a deal, and the deal was that the English got defence and the Scots got money.

They needed money because of the disastrous experience of the Darien project, where Scotland tried to build its own empire, its own colonies, and failed. One-quarter of the money in circulation in Scotland was lost, along with thousands of lives, in that failed venture where Scotland and England tried to continue to compete with each other. The brilliance of the Act of Union was that a partnership was formed and we started to work together, rather than against each other. And, hey ho, after about 20 years of misery—because the Scottish economy was protectionist and we had to adjust to free trade—suddenly prosperity bloomed. We had the Age of Enlightenment. Scottish philosophers such as Adam Smith, Scottish engineers and Scottish architects were dominating not just the United Kingdom but the globe.

It is very important to remember the financial aspect. All that money, one-third of the GDP, had been lost on the Darien scheme. A new institution, the Royal Bank of Scotland, was formed on the back of that scheme. Today, 300 years later, the Royal Bank of Scotland, with £40 billion lost—nearly one-third of Scotland’s GDP—again was rescued by the union. With 300 years’ experience, what kind of madness is it that cannot look to the past or to the present and conclude that the United Kingdom needs Scotland and Scotland needs the United Kingdom?

I said that the other half of the deal was defence. What happens if Scotland leaves the United Kingdom? Where will our nuclear deterrent be? That is let alone the effect on Scotland of the loss of 10,000 jobs at Faslane, and the loss of future defence contracts for the shipyards, with a further loss of jobs and everything else. But what about the position of the United Kingdom, which would be forced in practice to give up its nuclear deterrent? Where would Scotland be if it was cut off from the intelligence sharing and resources that we have, when we can see the threat that we face from terrorism? What of the British Army and the other armed services? Are we to say, as Mr Salmond proclaims, to the Scots men and women who fought in Afghanistan and Iraq so bravely with the union flag on their shoulders, “You have got to choose between the British Army and Alex’s Dad’s Army. You have got to choose whether you wish to be, in effect, mercenaries working for a foreign country or go off on this half-baked idea which Salmond proposes”? It is insulting. The lesson of the union and the prosperity that came was that free trade and a global outlook—not an inward-looking outlook—are the keys to success.

My noble friend Lord Steel mentioned the role that Scots have played. I wrote down some names which ring down through history, including Watt, McAdam, Telford, Dunlop, Bell, Logie Baird, Watson-Watt, Fleming, Simpson, Livingstone and Carnegie. If we turn to politics, Gladstone, Bute, Rosebery, Bonar Law, MacDonald, Bannerman, Home, Brown and Blair were all Prime Ministers who came from Scotland. Scots have played a hugely dominant role in the United Kingdom. The idea that we are disenfranchised is the politics of nonsense.

Together, Scotland, England, Wales and Ireland have saved Europe three times. First, we saved it from Napoleon; secondly, from the Kaiser; and, thirdly, from the Nazis. When the bombs were falling in the East End in the Blitz and in Clydebank in Glasgow, we knew that we were one nation which was forged over the centuries. It is a disgrace that people should seek to break up that family tie, that bond, which has been created through our history and our common heritage, without any single indication of why it could be justified.

Can noble Lords imagine a United Kingdom with Scotland sheared away? It would be a rump. We would be an object of curiosity around the world. The prestige, the influence and the power that we still have is no longer with an empire, but we still have influence and relationships through the Commonwealth. We have institutions that are copied and admired around the world. Why should we let this constitutional Lothario enable the break-up of that union?

A week ago, Scots throughout the globe were celebrating the bard, Robert Burns. At the risk of boring the House, I remind them of his address to the Dumfries Volunteers:

“Be Britain still to Britain true,

Amang oursels united;

For never but by British hands

Maun British wrangs be righted!”

Scotland: Independence

Lord Forsyth of Drumlean Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I could not agree more with the noble Lord. It is important that people not only from the diaspora but from other parts of the United Kingdom speak up and say how valued Scotland is as part of a family of nations, which is one of the great success stories of modern history. Scotland is obviously better within the United Kingdom, but the United Kingdom is also better with Scotland in it.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble and learned friend not agree that the answer of the Scottish Nationalists to my noble friend Lord Flight’s question is symptomatic of the fantasy politics that they are putting forward? When he asks what the position of Scottish MPs would be in the House of Commons if they were elected after a vote for independence, their official policy is that we should postpone the date of the general election until 2016.

[Lord Wallace of Tankerness]

My Lords, I did in fact notice that. I am not quite sure what it says about democracy—that people should be denied the chance to elect new Members of Parliament. I also bear in mind that the date that they set for this referendum was after this Parliament had agreed to the Fixed-term Parliaments Act, which had already set the date for the next general election.

Scotland: Independence

Lord Forsyth of Drumlean Excerpts

Thursday 5th December 2013 Lords Chamber

Asked by

[Lord Forsyth of Drumlean]

To ask Her Majesty’s Government what is their response to the Scottish Government’s declaration that, if the people of Scotland vote for independence, Scottish independence day will be 24 March 2016.

[Lord Forsyth of Drumlean (Con)]

My Lords, I am most grateful for this opportunity to discuss the White Paper that was published by the Scottish Government on the advantages of an independent Scotland. It runs to 650 pages, and I believe that an anagram of the title, Scotland’s Future, is “fraudulent costs”, which would certainly do a great deal to explain the content. It has all the deliverability and realism of a letter to Santa Claus. Such is its credibility that if it were put forward on “Dragons’ Den” as a business plan for an independent Scotland for the next 300 years, it would not even get up the stairs to be filmed before them.

We were told that it would answer all the central questions about Scottish independence. In fact, it ignores all the questions by simply asserting the answers that the Scottish Government would like. On EU membership, therefore, Scotland will able to join the EU. The Spanish Prime Minister says, “Not on your life”—but, of course, Alex Salmond knows better than the Spanish Prime Minister, the European Commission and others.

Yes, there will be free tuition fees, but our deal with Europe will mean that we can maintain this outrageous discrimination against students from England. The proposal in this White Paper, believe it or not, is that an independent Scotland will allow French, Italian and German students to come and get free university tuition fees, but England, Wales and Northern Ireland will still be discriminated against. This is from people who have the nerve to use the rhetoric of us all being a family together.

Similarly, an independent Scotland will not have to join the euro, even though the treaty requires it. It will have the pound, but without accepting any of the obligations that would come from the Bank of England in a monetary union when it comes to determining their interest rates, borrowing and the rest. It will be able to avoid Schengen as well—all because Alex says that this has got to be the case. On NATO, it can join a nuclear alliance while engaging in rhetoric about how offensive nuclear weapons are. The Scottish Government can put at risk tens of thousands of jobs on the Clyde by insisting on our nuclear deterrent being moved, without any suggestions as to where it might be moved, who would bear the cost of the tens of billions of pounds involved, or what the consequences for NATO would be of Britain consequently having to abandon its nuclear deterrent.

The Scottish Government fail to make the case in this White Paper for what amounts to the Balkanisation of Britain. To be fair, they do answer some questions. For noble Lords who have not had the opportunity, as I had last weekend, of wading through this document, I can announce that Scotland will be able to put forward its own entry for the Eurovision Song Contest.

I say to my noble friend on the Front Bench that it is a bit off that we should be debating a document as important as this on a Back-Bench Motion late on a Thursday afternoon. We really ought to have seen a debate in the House of Commons and one in this House on such an important document. I suggest to my noble friend that he might consider persuading his colleagues to set up a Joint Committee, perhaps chaired by someone of impeccable credentials such as a former Law Lord, to go through this White Paper—it will not take them long, although it might take a long time to read it—and set out what the consequences should be for both sides of the border. This is not a Scottish issue. It is an issue for every part of the United Kingdom, with huge implications for Northern Ireland, Wales and England.

I have another request for my noble friend. I do not know if he has had a chance to read the White Paper, but you only have to get to pages xii and xiii to see set out a whole load of things, where on one side it says:

“Gains from independence—whichever party is elected”,

and on the opposite page it says:

“Gains from independence—if we are the first government of an independent Scotland”.

It sets out SNP party policy, including the renationalisation of the Royal Mail, which is not within the competences of the Scottish Parliament. What on earth are civil servants doing writing this stuff, with the Government of Scotland putting the bill for an SNP manifesto on to taxpayers?

I draw my noble friend’s attention to paragraph 14 of the Civil Service Code, which says:

“You must: serve the Government, whatever its political persuasion, to the best of your ability in a way which maintains political impartiality and is in line with the requirements of this Code”.

Section 15 says:

“You must not: act in a way that is determined by party political considerations”.

The Cabinet Secretary ought to have a look at this. If he concludes that it is party political and contrary to the code, the bill for this whole exercise should be sent to the SNP, which should pay it. I do not see why my taxes should pay for this sort of nonsense.

The subject of my Motion was the declaration in this document that if Scotland votes for independence, 24 March 2016 will be independence day. I have no idea where that particular date came from, but I was always told that if you were going to be in a negotiation—and if Scotland votes for independence there will be a lot to negotiate, because it is not answered in this White Paper—you never set a deadline, especially if you are the weaker party.

The other day, I pointed out to the leader of the SNP in the other place that if independence day was going to be 24 March 2016, it would be rather awkward if a Government had been elected with a majority that depended on Scottish MPs, who would presumably be thrown out of the House of Commons on independence day. He replied, “Ah, yes, we’ve been thinking about that, and we think that the general election should be postponed by a year”.

[Noble Lords]

Ha!

[Lord Forsyth of Drumlean]

That is SNP policy, and it is one of the more credible notions that it puts forward.

Of course, to be fair, I shall always be grateful to the SNP. Had it not brought down the Labour Government, we would never have had the late Baroness Thatcher as Prime Minister for three successive Parliaments. Now, of course, it is arguing that we should extend the life of the coalition Government by a further year. It is indeed a fair-weather friend. Of course, if there were no Scottish MPs in the House of Commons, we would have a Conservative Government with a majority of 10. Let no one say that the Tory Party does not stand up for the United Kingdom, even when it is against its own short-term political interests.

Where did this idea of independence day come from? The Battle of Bannockburn was on 24 June. The Act of Union took effect on 1 May. Could it just be that 24 March is immediately before the run-up to the election campaign for the next Scottish parliamentary elections? Therein lies the clue: this is all about the SNP’s interests and not about our country’s. It has never been part of Scotland that good, patriotic Scots are concerned with narrow nationalism. We have always been an outward-looking, innovative, entrepreneurial nation. A Scot founded the BBC. A Scot founded the Bank of England. Scots played a major part in the industrial revolution, with steam engines, railway engines, and then telephones, televisions and penicillin. The Age of Enlightenment came about after the Act of Union, because of the benefits of the union, and gave us Adam Smith, Hume, Robert Adam, and ships and bridges all over the globe; and, today, Dolly the sheep and even computer games. It is a nation with a traditionally global outlook.

What are we to say to those members of the Armed Forces serving in the British Army in Afghanistan who, according to this White Paper, will be asked to choose whether they want to be in the Scots army, which will be like “Dad’s Army”, or remain in the British Army and, in so doing—as most of them will so decide—become mercenaries as part of the British Army, having proudly fought under the union flag? It is a nonsense which, according to this White Paper, will make our families on both sides of the border choose their nationality—choose the country of which they are to be citizens or subjects—and will make families and neighbours foreigners in their own countries. And for what? What are the benefits?

The benefits seem unclear. We are to rely on the wishful thinking of Mr Salmond, Ms Sturgeon and Mr Swinney. It reminds me of lines from The Jungle Book, which I remember from childhood. In the “Road-Song of the Bandar-Log”, three monkeys chant:

“Here we sit in a branchy row,

Thinking of beautiful things we know;

Dreaming of deeds that we mean to do,

All complete, in a minute or two—

Something noble and grand and good,

Won by merely wishing we could”.

--- Later in debate ---

[Lord Wallace of Tankerness]

I thought that the Leader of the House of Commons was part of the usual channels. This would have to be done with the collaboration of both Houses, but I am saying that we will reflect on the matter. I cannot go further in making any commitment today, other than what I have already said.

My noble friend chose a debate specifically on the date, because I think he had to put his application into a ballot before the White Paper had been published. It may be worth reflecting on the fact that the date may be about the only thing in the White Paper that had not previously been in the public domain—and even that was leaked about two days before publication. We had already been told that the date would be in March 2016, so I suspect the only new information was the specific date of 24 March, which I think is the anniversary of the death of Queen Elizabeth I, and therefore of the union of the Crowns. Indeed, as my noble friend the Duke of Montrose reminded us when he talked about the Earl of Seafield and the end of the auld sang, it is also the date on which the previous Scottish Parliament last sat. However, I rather suspect that that was an ex post facto justification that some people gave for that date, rather than stating the reason that, as my noble friend pointed out, it will be the start of the 2016 Scottish election campaign.

I take the point that even if Scotland were—heaven forbid—to vote yes, actually naming your cut-off point does not seem the best way to go about negotiations. One of the things that has been evident from this debate, if not necessarily from the White Paper, is that a considerable amount of negotiation will have to take place. That point was made by the noble Lord, Lord Foulkes.

Sometimes we have heard people in the Scottish Government compare this White Paper to the 1997 White Paper produced by the Labour Government, which paved the way to the referendum on devolution. However, there is a world of difference between a White Paper produced by a Government, which reflected a constitutional convention that had met in public over many years and had achieved a consensus, and a White Paper that is the product of a single party behind closed doors, and is dependent not just on the Government of the rest of the United Kingdom, but on other member states of the European Union, members of NATO and numerous other countries. It is important to make the point that this White Paper has no guarantee of delivery. It is, as the noble Lord, Lord Kerr, said, strong on assertion but perhaps not so strong on argument.

My noble friend the Duke of Montrose asked about the fact that it is sometimes said by some Scottish National Party people that there would be two new countries, and the rest of the United Kingdom would have to negotiate lots of other treaties. However, the first Scotland analysis paper, which the Government produced in February, examined the constitutional position. We did so on the basis of advice from Professor James Crawford of Cambridge University and Professor Boyle of Edinburgh University—two outstanding experts in the field. Their analysis—one which represents the view of the United Kingdom Government—is that the rest of the United Kingdom would be a continuing state, with all the rights and responsibilities such as permanent membership of the Security Council of the United Nations and membership of the European Union on the terms that have been negotiated, and Scotland would be a new state.

It sometimes seems rather odd to me that a party that aspires to independence finds it awkward to admit that it wants to be a new state. I thought that was the whole purpose. Scotland would be a new state, and it would have to enter into a whole series of different negotiations, including seeking membership of NATO and the European Union. If I may pick up another point, it was certainly rather a novel approach—perhaps this is one of the other things in the White Paper that we had not quite anticipated—to refer to Article 48 of the TFEU. The view of the United Kingdom Government—again, this was set out in the first paper of the Scotland analysis series—is that Article 49 would represent the appropriate way forward. We can have a debate as to whether Scotland would have to come out to go back in, or whether there would be a possibility, following a yes vote, of negotiations taking place during that period. However, the important point, which was reflected in the speeches by my noble friend Lord Forsyth and the noble Lord, Lord Kerr, is that there would have to be negotiations—and we cannot predict with any certainty what would be in those negotiations. The only thing that is certain is the uncertainty.

Arguments have been made about Schengen, about membership of the euro and about the rebate. Approaching this from the perspective of Croatia or Bulgaria, we would be talking about giving a rebate to a country that the First Minister has said would be the eighth wealthiest in the world. I also think that there is a misunderstanding on the part of the Scottish Government as to the nature of the rebate. They have said, “As the budget has been set for the European Union for 2014-20, we will decide between Scotland and the rest of the United Kingdom how the rebate is split up”. I know that there are people in this House who are much more knowledgeable about this matter than me but my understanding is that it is not a constant, annual lump sum that can be divvied up or shared; it is a function of the United Kingdom’s respective shares in the EU economy and receipts. Any change in the size of the United Kingdom, for example as a result of independence, would automatically be reflected in the rebate calculation. Therefore, there would not be a Scottish share of the UK rebate to be handed over. There seems to be a fundamental misunderstanding on the part of the Scottish Government in their White Paper as to what they are talking about.

As regards currency, my right honourable friend the Chancellor of the Exchequer has said that it is highly unlikely that there would be a currency union. That was reflected by other former Chancellors, including Alistair Darling, and the former Chancellor and Prime Minister, Gordon Brown. I think it also has been said by the Shadow Chancellor. Therefore, while we get an answer to whether Scotland could take part in the Eurovision Song Contest, we do not get an answer as to what the currency position would be if a monetary union was not agreed with the rest of the United Kingdom. Because questions such as that are ducked, the Scottish people will not be given, as a result of this White Paper or from the Scottish Government, the proper information with which they can make up their minds—our minds—when voting on 18 September next year.

My noble friend Lord Selkirk talked about defence and the primary importance of the security of the realm. We believe that the whole of Scotland and the United Kingdom benefits from a full range of UK defence capabilities and activities. Scotland has greater security and influence with the United Kingdom’s geopolitical influence, which few states of similar size to Scotland can match. In addition, there is the important defence industry in Scotland. On the idea of joint procurement, as far as I am aware, since the Second World War, no complex naval vessels have been built outside the United Kingdom. If the rest of the United Kingdom should start building these vessels outside the UK, that could not automatically go to Scotland. There would have to be open competition, even in these circumstances. My noble friend is absolutely right to stress the defence implications of independence, but there are defence benefits from Scotland being part of the United Kingdom.

The 2015 election was mentioned by my noble friend Lord Crickhowell and the noble Lord, Lord Hennessy. In answer to my noble friend Lord Crickhowell, last Thursday, I had a question from my noble friend Lord Forsyth on what would happen after the vote on independence in September 2014 and whether Scottish MPs would have to leave at that point. I think that that is when I said that they would not need to do so. Obviously, it would be a matter for Parliament to address what would happen in 2016, although I cannot honestly see how people could represent constituencies or a country that no longer belongs to the rest of the United Kingdom. I do not see how that could happen, or how Parliament would deal with that or with the intervening period between the elections in 2015 and 2016. Should that ever happen, I think it would be a matter for both Houses.

I certainly picked up the point made by my noble friend about the idea that we should somehow postpone the United Kingdom general election. Given that the Fixed-term Parliaments Act was on the statute book before the date of the referendum was announced, the Scottish Government had full notice of it. I find it somewhat preposterous that for some reason people in the rest of the United Kingdom should be denied their democratic opportunity to select their Members of Parliament to facilitate a negotiation.

[Lord Forsyth of Drumlean]

Will the Minister deal with the point about the Civil Service Code?

[Lord Wallace of Tankerness]

My noble friend raised an important point on paragraph 14 of the Civil Service Code. When a similar issue was raised during the Scotland Bill debate, I said that, when questions are asked about breaches of the code, there is a process for dealing with that. I do not think that it is appropriate for a Minister at the Dispatch Box to pass judgment on that when there are proper processes. I note what my noble friend says and I am sure that it will be noted by those to whom these matters might properly be addressed. I think my noble friend reflected on the positive things about the union. It was also said by my noble friend Lord Steel.

My noble friend Lord Maclennan talked about a United Kingdom convention and my noble friend Lord Purvis talked about policies of how we might look to the future in our constitutional arrangements. It is important that we look to the future. We should do so and record the strengths of our United Kingdom; namely, those of family and kinship, which were mentioned by my noble friends Lord Cormack and Lord Crickhowell. We should also look at what has been achieved over many years.

Just before I came into the Chamber, my attention was drawn to the second leader in today’s Times. It states:

“Whatever Scotland’s future, it should be a source of pride to everyone in the United Kingdom that for centuries we have made a state of many nations work so well. We have lived together in peace and harmony, never losing our distinct identity yet also forging one together. And we have been strong together, through centuries of continental and global conflict. None of this should be pushed to one side in favour of an argument dominated by oil revenues”.

That is profound advice. I believe that when it comes to it, people will recognise that Scotland is stronger as part of the United Kingdom and the United Kingdom is stronger with Scotland as part of it. I sincerely hope that the noble Lord, Lord Hennessy, will die British rather than as RUK.

Glasgow Helicopter Crash

Lord Forsyth of Drumlean Excerpts

Monday 2nd December 2013 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I thank my noble and learned friend for his Statement and for the tribute which he rightly paid to the emergency services. Without in any way anticipating the results of the inquiry, it seems that rather a lot of helicopters fall out of the sky these days. We have seen it in the North Sea and not a stone’s throw from here. Would this not be a good time perhaps to review the maintenance regime that applies to helicopters and the rules that surround it? I appreciate that this was a police helicopter and that we do not know the circumstances. However, should we not look at some kind of review of the safety and maintenance standards that are required of helicopters that fly over heavily populated urban areas?

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend for his question. He highlights the fact that there have been some helicopter crashes and fatalities in recent times. Over a long period of time the safety record has generally been good. However, I am sure the whole House will agree that any accident must be thoroughly investigated if lessons can be learnt. It is also important to remind ourselves that helicopters fly many different types of operations and that a helicopter taking large numbers of passengers out to installations in the North Sea is somewhat different from the operation that was undertaken by police and other emergency helicopters in this situation. I am not sure that a generic inquiry would necessarily be the best way forward. However, it is important that there is a thorough investigation of the various accidents that have happened. I am in no doubt that the Air Accidents Investigation Branch and other relevant authorities will try to ensure that that thorough investigation takes place so that we can learn any lessons that are appropriate.

Scotland: Independence

Lord Forsyth of Drumlean Excerpts

Thursday 28th November 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I think each of the United Kingdom parties has its own arrangements for looking forward to what would happen in the event of a no vote, but first we have to campaign and win a no vote. The United Kingdom Government have already published, and will continue to publish, some substantial documents analysing Scotland’s place in the United Kingdom, the benefits we derive from being in the United Kingdom and the problems and difficulties that would arise if we became independent.

[Lord Forsyth of Drumlean (Con)]

My Lords, in the event that Scotland votes to secede from the United Kingdom next September, will the general election still take place in Scotland in May of the following year? If so, at what point will those Scottish MPs elected to the House of Commons be asked to leave? If it is before the general election, would it not result in the disintegration of the coalition and an overall majority for the Conservative Party?

[Lord Wallace of Tankerness]

My Lords, there is no end to the ingenuity of my noble friend. Those who have been elected to this Parliament in the other place have received their Writ of Summons. I do not think they have any clause in it that tells them to go. In what we both agree would be the unhappy event of Scotland deciding to leave the United Kingdom, there is no legislation that would stop the general election in 2015 applying throughout the United Kingdom. Those who advocate independence will have to negotiate with the rest of the United Kingdom, and there can be no guarantee of what the United Kingdom Government would be post May 2015.