Scotland Bill
Lord Forsyth of Drumlean Excerpts(12 years, 7 months ago)
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Lord Wallace of Tankerness
My Lords, these minor and technical amendments, which are a cue for those who wish to leave to do so, will ensure that all references to “Scottish Executive” in Section 44 of the Scotland Act are amended to “Scottish Government”. Clause 12 of the Bill renames the Scottish Executive as the Scottish Government. This clause was included in the Bill following increasing use of the term Scottish Government by the Scottish Administration, indeed by the UK Government and the public as well. Clause 12 will ensure that the use of its legal and public name is consistent. The current clause does not encapsulate every mention of the Scottish Executive within Section 44 of the Scotland Act and these amendments will ensure that the policy intention underlying Clause 12 is fully implemented. I beg to move.
Lord Forsyth of Drumlean
My Lords, I am not going to make a speech about the relevance of the definite article, but I wonder whether my noble and learned friend might help me by giving some understanding of why it was felt necessary to change the name of the Scottish Executive to that of the Scottish Government, but not at the same time to change the name of First Minister to that of Prime Minister. Given that we apparently have a Scottish Government and a Scottish Cabinet, why has he not felt it necessary to make a change to the title of the leader of that Government? I ask that question not in order to make mischief but to underline the point as to what is going on here.
The Scottish Executive were called the Scottish Executive with very good reason: in order to demonstrate that power devolved is power retained, and that we did not have competing governments in a unitary system. If you are going to have separate governments, you have to have separate roles within some kind of federal structure. I do not know whether my noble and learned friend even considered changing “First Minister” to “Prime Minister of Scotland”. Looking at the behaviour of the First Minister in Scotland, Prime Minister is probably not a grand enough title—there may be other titles which would be more appropriate, given the all-encompassing role which he carries out—but in order not to delay proceedings, I will not elaborate on that matter. I would be most grateful if my noble and learned friend could explain to me why it was thought necessary to change just this aspect of the nomenclature of the Scottish Administration.
Lord Wallace of Tankerness
My Lords, as ever, I am grateful to my noble friend for raising a pertinent point. As I explained in moving the amendment, the term Scottish Government, albeit technical, is widely used publicly. Indeed, I think I am right in saying that it was first ever used by the Scottish Administration in a document which I rather suspect the late Donald Dewar and I co-signed in 1999 or 2000. It is not only used by the Scottish Administration but has been used by the UK Government, and is used widely within the public. We therefore think it makes sense to amend the Act to reflect this public perception and avoid the potential for confusion, if indeed the popularly used name differs from the one required for legislation, contracts and legal matters.
As I am sure my noble friend will agree, while there have been regular references to the Scottish Government as opposed to the Scottish Executive, the term “First Minister” is one which has stuck. There has been no attempt or suggestion to use the term “Prime Minister”, or any public use of it, to refer to the person who holds that office and there is a clear distinction between the two. I hope that I am not giving anyone encouragement, or they might start to use the term “Prime Minister”. Clearly, that has not happened. We are seeking here to bring into line the public perception and the legal requirements. On that basis I hope that your Lordships’ House will agree to these amendments.
Lord Forsyth of Drumlean
My Lords, I am most grateful to my noble and learned friend for tabling this amendment and for accepting the principle of the amendments that, as he indicated, I tabled at an earlier stage of the Bill. After I do not know how many thousands of words that I have spoken on the Bill on all the issues that have been raised, he will realise that it is a matter of great comfort to me to know that I have extended the powers of the Scottish Parliament to enable it to set speed limits for caravans and lorries. That no doubt will be my epitaph in respect of the consideration of the Bill. Just to ensure that this is on record, I think that it is ridiculous to have different speed limits north and south of the border, but if we are going to go down that track then clearly it is essential that there should be consistency.
I am grateful to my noble and learned friend and to the Secretary of State for Scotland, who I know may have had to press the Department for Transport a little in order to ensure this minor victory for extra powers to the Scottish Parliament.
Lord Wallace of Tankerness
My Lords, I thank my noble friend. I think I am right in saying that, since the Bill was introduced, this is the only amendment that will actually extend the powers of the Scottish Parliament. For that, I am extremely grateful to him.
Lord Forsyth of Drumlean
My Lords, I am not terribly keen on this Bill, but I do think it is appropriate that it should say on the tin what is contained in the Bill. The title “Scotland Bill” is somewhat bland, replicates the previous Scotland Bill and gives no indication whatever as to what it is about. I was struck the other day—in the way that one is struck when reading the Sunday papers in Scotland—to read an article by the shadow Secretary of State for Scotland in the other place, Margaret Curran, in which she said that it was ridiculous that no one in Scotland had acknowledged how much was in the Scotland Bill. She also said that although the Scottish Parliament had finally given—what a surprise—its legislative consent to a Bill that was actually enormous in terms of its implications and the powers it transferred to the Scottish Parliament, no one had gone out and explained to people how much was contained in the Bill.
I come from a slightly different side of this argument, but I entirely agree that it is a matter of extraordinary surprise to me that the Scottish media and the Scottish people seem to be completely ignorant of what is contained in the Bill. What my amendments—I am also happy to move Amendment 11—do is change the title from the “Scotland Act” to the “Scottish Income Tax, Enabling of Scottish Taxation and Borrowing, and Miscellaneous Provisions (Scotland) Act”. It is a modest proposal. It meets all the rules in terms of Bill titles, and I am sure that in the way that my noble and learned friend has shown such generosity of spirit in respect of caravans and the speed with which they travel on our roads, he will not have the slightest difficulty in accepting the amendment because it will help Margaret Curran and others who believe that by appeasing nationalism we will avert the catastrophe of the balkanisation of Britain and the break-up of the United Kingdom. It will help them to show just what has been achieved, and it may also warn the electorate of what it is about to face. Nothing in all the discussions that we have had on the Bill and all the amendments has really changed the potential damage that the Bill could do.
The provisions in respect of Scottish taxation need to be highlighted in the Title. In order to increase expenditure by 8.5 per cent, the Scottish Parliament will need to increase the basic rate of income tax by 25 per cent. We are back with the poll tax and local government capping where, in order to achieve comparatively small increases in revenue, very large increases in taxation are required because of the gearing effects. Despite my best efforts and those of a number of other noble Lords, the coalition Government have refused to have any kind of referendum procedure or lock on the use of these powers. At the very least, we ought to make it clear that the Bill is introducing for the first time since 1707 a separate Scottish income tax which can be set at any level and where the revenue from it, relative to the baseline expenditure of the Scottish Parliament, is such that very large increases in tax will be required to achieve comparatively small increases in expenditure.
It is also important that the Title lets people know that the really big issues arising from devolution and the instability created by the creation of the Scottish Parliament without addressing the West Lothian question or the Barnett formula—I am sorry that the noble Lord, Lord Barnett, a man who has been forced to travel through life bearing the burden of a formula named after him with which he profoundly disagrees, is not in his place—have not been addressed. There is the whole issue of moving to a needs-based system of funding before introducing a taxation plan. None of those things is included in the Bill. Therefore, to call it the Scotland Bill is misleading because it is clearly not dealing with the key issues arising for Scotland as a whole; it is concerned mainly with tax.
I resisted the temptation to table any further amendments. I regret that my noble friend Lord Sassoon is not in his place. I received a copy of a letter which he sent to the noble Lord, Lord Browne, concerned with those sections of the Bill which create the extraordinary power for this Parliament by Order in Council to create new taxes thought up by the Scottish Government. That is a huge, monstrous constitutional step, but these days they come along every day. We have to deal with them, not least in our domestic environment in this House. A huge constitutional innovation is being made.
My noble friend Lord Sassoon sent me the copy of the letter. I saw it just after the deadline to table amendments, which is probably just as well, because I might have been tempted. I can only assume that the people who drafted the letter in the Treasury were the same people who thought that they could change the tax regime for charities and that it would go through without any difficulty. In the letter, my noble friend says that there is nothing to worry about in respect of the exercise of these powers because the Treasury will have a code, a set of criteria as to what taxes Mr Alex Salmond and the Scottish Parliament can ask this House and the other place to pass on a secondary legislative procedure. That is startling in its naivety. It will mean that from the moment the Bill receives Royal Assent, which is before any referendum campaign on independence, the Scottish Parliament and its First Minister will be able to exploit its provisions to create mischief. If the Scottish Parliament decided that it wanted a window tax or something even more disastrous—perhaps a tax on salmon fishing or estates owned by landlords who are not resident in Scotland, or to introduce a local income tax or any other kind of tax—the notion that the Treasury would be able to say, “Actually, it doesn’t meet the relevant criteria so we’re not going to put those measures through on secondary legislation in both Houses”, is startling in its political naivety and opens up a whole new area of conflict between Westminster and Edinburgh in the area of taxation which should not arise.
Therefore, at the very least we should make it clear in the Title of the Bill that it is enabling of Scottish taxation. That is very important because the tax powers that the Scottish Parliament enjoys—the variable rate and the limited ability to change only the basic rate of income tax by 3 pence in the pound—are abolished by this Bill. What people voted for in a referendum is being abolished. The Government have repeatedly refused to allow a referendum to bring in these new additional sweeping powers. At this late stage, exhausted by my efforts, I plead with my noble and learned friend at the very least to put in the Title of the Bill some indication of what he is about to explode unexpectedly on the hard-working people of Scotland. There is an issue here because the Bill also provides for additional borrowing powers, and borrowing is simply tax deferred. Therefore, Scotland’s yet unborn will have to pay higher taxes on the back of these borrowing powers.
I know that people say, “Ah well, these are only powers. They may not be used”, but anybody who has read Alex Salmond’s manifesto will know that the chances of these powers not being used are pretty remote. They are about as great as the Deputy Prime Minister deciding that he is not going to put Lords reform in the Queen’s Speech. It would require a damascene conversion and a huge change, and it is not going to happen. To be fair to the First Minister, the numbers are against him. The Chancellor gave the Scottish Parliament a free ride in the run-up to the Scottish elections—which shows how generous of spirit he is—meaning that it did not have to make any reductions in expenditure to deal with the budget deficit. That has meant that in year two it has had to make two years’ worth of reductions.
Alex Salmond is making all kinds of additional promises. If the noble Lord, Lord Barnett, gets his way and Scotland is funded on a needs basis, according to Professor Bell at Stirling University the Scottish block budget will be reduced by £4.5 billion. As it happens, on current yield, the entire product of Scottish income tax which can be raised on this 10p rate comes to the same amount—£4.5 billion. Therefore, if Scotland were funded on the same basis as the rest of the United Kingdom and if the gap were made up by increasing taxation, you would have to double the basic rate of income tax. That might make Alex Salmond a bit unpopular at the polls and he might lose the election, but I suspect that he will make use of these arguments and point to the inequity of the Bill. The Bill provides a means of funding on too narrow a tax base. I agree with Alex Salmond and the nationalists when they say that you cannot fund a country on that basis. If you are going to go down this road, you need to broaden the tax base available to Scotland.
In short, in the brilliant image put forward by my noble friend Lord Lang, this Bill is a Trojan horse. It creates further instability and will not be the last word. It is another step down the slippery slope. When I was Scottish Secretary, my shadow, George Robertson—now the noble Lord, Lord Robertson of Port Ellen—issued the immortal judgment that devolution would kill nationalism stone dead. I am sorry that he is not here to enjoy his triumph as we take yet another step down this road of appeasing nationalism, which in my view will simply add to more and more demands for powers. On this new journey on which we are embarking, the case for additional taxation powers will be valid because of the very narrowness of the tax debate.
Lord Steel of Aikwood
My Lords, I suspect that the amendments tabled by my noble friend Lord Forsyth are a substitute for what would in the House of Commons be a debate on Third Reading of the Bill, which we do not have in this place. I have four things to say about the Bill’s passage.
First, I echo strongly what the noble and learned Lord, Lord McCluskey, said a few moments ago about the significance of the amendments that we have debated in this House against the relatively skimpy progress that the Bill made through the other place. He made a serious point, although he did so with his typical good humour. It demonstrates again the value of this House as a revising Chamber that has done very serious work on the Bill.
Secondly, I express my thanks and, as I am sure that the whole House agrees, I pay tribute to the Advocate-General, my noble and learned friend Lord Wallace of Tankerness, for the skilful, attentive and good-humoured way in which he has piloted this Bill through all its stages. He has been a model of how a Minister should react and I am very grateful to him. My mind goes back to the days when I stopped him being the prospective Liberal candidate for Dumfries to make way for an SDP candidate. He was slightly cross at the time but I think it was the best thing I ever did for him as he has done extremely well since then. I thank him warmly for his role as Minister on this Bill.
Thirdly, picking up a point made by my noble friend Lord Forsyth, it is interesting that the SNP Government have given their consent to the passage of the Bill despite earlier having called it everything from a poisoned pill to a dog’s breakfast. In other words, they have suddenly realised, late in the day perhaps, that this UK Government—London Government as they like to say—are doing something constructive and useful for the people of Scotland, and not just in the area of criminal law, to which the noble and learned Lord, Lord McCluskey, referred, but in the area of taxation. Although I pay tribute to my noble friend Lord Forsyth for the assiduous way in which he has tabled a whole series of amendments and enlivened our debates, I fundamentally disagree with him in his pessimistic view of the role of the Bill, shortly to be Act. First, it sets the requirements of the Scottish Parliament not only to spend money on services for the people of Scotland but to take some responsibility for raising that money. We should support that objective.
My noble friend may have a legitimate point in suggesting that the tax base is too narrow but, as I have said on previous occasions, I am quite sure that this Bill is not the end of the story. There will probably have to be other devolution measures on taxation matters in the future, but this is a substantial first step. This issue will not just affect the Parliament. In my view, it should affect the whole level of political debate in Scotland because there will not only be an obligation on each of the political parties to spell out to the electorate what they would like to do in education, health, employment and all the other things for which they are responsible, but they will also have to say how they will raise the money and how much they will ask the citizens to pay.
Far from being pessimistic about this, as my noble friend is, I am optimistic about it. I believe that it will enliven and should certainly deepen political discourse. For all those reasons I welcome the Bill and I look forward to it being an Act of Parliament very shortly.
Lord Kerr of Kinlochard
I strongly endorse and echo what the noble Lord, Lord Steel of Aikwood, said in tribute to the Minister. His patience has been exemplary; he has had to exercise it a lot. I promise that I shall not test him very much this time.
I agree with the noble Lord, Lord Forsyth of Drumlean, about the Title of the Bill but for slightly different reasons. It is a bit of a ragbag Bill, as it includes Antarctica, speed limits and so on, and I think the miscellaneous provisions bit of his Title would have been quite appropriate. However, I do not press the point. I am more concerned that under the Title “Scotland Bill” one would expect to see the great issues dealt with. My feeling is that we have missed an opportunity to deal with the great issues. It seems to me that we have not, as the noble Lord, Lord Forsyth, said, addressed the real accountability deficit issue, particularly because the tax changes permitted in the Bill are so small, and although we have debated its merits and demerits, we have not addressed the problem of the Barnett formula at all. I have also discovered—I am sure everyone else knew this before—the extraordinary animal, the no detriment principle, which seems to reduce greatly the accountability of the Scottish Parliament.
If we are to have, as we probably will have, an option in the referendum for further devolution, it seems a great pity that we have not defined its parameters and its ground rules in the Bill, with a sunrise clause. I would have liked it to do that because I am Scottish and Scots like to know what things mean. I am sure that between now and the referendum date, there will be definitions of further devolution. I am sure that the position taken by the Prime Minister in his speech in Scotland—that there will be no definitions until after the Scots have said no to independence, and that further devolution will be on offer but will not be defined until later—is unsustainable. I hope it is unsustainable as I think it is a very dangerous position. It would lack credibility in Scotland—and does lack credibility. People do not know whether he means it.
There is a need to define what we mean by it. If the option means complete fiscal autonomy—and the Scottish consultation document suggests that this is in the mind of the Scottish Government—surely the ground rules need to be spelt out in advance. If we see Scotland as the Athens of the north—and of course it is—we need to take great care to ensure that we are not building in a relationship similar to that today between the other Athens and Berlin, Frankfurt and Brussels. How would we reconcile fiscal autonomy for Scotland with the continuing monetary integration of the United Kingdom? What changes would we need to make to arrangements in London? Would the composition of the Monetary Policy Committee of the Bank of England need to be changed to ensure that there was a voice on it responsible for representing the distinct interests of the Scottish economy?
Conversely, would there not need to be some ground rules constraining fiscal autonomy in Scotland that were similar to the failed stability and growth pact in the European Union that did not save the real Athens? These issues need examination and I am sorry that we have not done that during these debates. However, perhaps we are not the right people to do it. The debates in this House have been of a very high standard, but on the whole the participants have been advocates, principally of the status quo. Unfortunately we have not had among our number a single representative of the advocates for independence.
What we need for our own education and the education of the Scots before a referendum is not advocacy but analysis. Therefore, although I agree with most of the arguments made today by the noble Lord, Lord Steel of Aikwood, I do not think that the kind of continuing debate that he hopes will take place—he claimed that we had not heard the end of the story—will necessarily be very satisfactory. As he said, it will be conducted by the political parties, and there is a fair degree of cynicism out there about the parties. And to an extent it is justifiable, since the majority party up there favours not further devolution but independence, and down here there are strong voices, such as that of the noble Lord, Lord Forsyth, expressing concern about this degree of devolution, let alone any more.
Some of my arguments could also be applied to the independence option. How would fiscal autonomy work? What is the likely depletion rate from the North Sea? It is a function of the likely world oil and gas price. The political parties are not best placed to produce credible estimates of the range of possible prices of North Sea oil and gas five or 10 years ahead. What is the likely assumption about the price of electricity? If the Scots go ahead with their renewables programme, and if the coal-fired power stations are closed down after the nuclear ones, Scotland will presumably—I do not know; I am not an advocate—become an importer of electricity. What would be the price of that electricity?
In short, what are the economics of autonomy? What would the tax take have to be to make the books balance, assuming no Barnett formula? I do not think that the electorate will take an answer that comes from politicians. Quot homines tot sententiae. Politicians will not produce a single answer. I hope that the Minister will reflect on whether we do not need, as a complement and a supplement to the very useful debates that he has conducted so well on this Bill, to encourage an agreement between London and Edinburgh on the establishment of some kind of independent commission to look at fiscal autonomy, in both possible scenarios.
Lord Selkirk of Douglas
My Lords, I agree entirely with what the noble Lord has just said. First, I have two past interests: as an MSP for eight years and as a member of the Calman commission. I note with pleasure that all five Members of this House who served on the Calman commission are in their place. We had the support of a significant number of very highly qualified academics who gave us some expert advice during the time we sat, which was well over a year, when a great deal of evidence was taken. I particularly remember evidence being taken in the constituency of the noble Lord, Lord Forsyth, as well as in many other parts of Scotland. What was very significant was that a decisive majority welcomed the Scottish Parliament and believed that it had been a success.
I think the Minister should be strongly congratulated on his handling of the Bill, which has not been altogether simple or straightforward, but I think he has done it with tremendous skill. One point I would make is that it has been overshadowed, to some extent undeservedly, by endless arguments about the processes needed for the Scottish Government’s planned referendum. It is very welcome that the noble Lord, Lord Forsyth, has put down this amendment giving us this opportunity for this debate because the Bill produces the largest transfer of fiscal power from Westminster since the union.
The noble Lord, Lord Kerr of Kinlochard, said that there is an accountability deficit. I submit that the Calman commission and this Bill in particular address that deficit and make it very clear that—to sum it up in one sentence—if there is a reduction in the block grant from Westminster, there should be the opportunity for substitution. More than that, the elephant in the room throughout our discussions on the Calman commission was that there is a possibility that if a needs-based grant replaces the Barnett formula, the provision for Scotland might be greatly reduced, and if that were the case, it would be very necessary for the Scottish Parliament to have the flexibility to find the best level between essential services and taxation. I have to say that if a Government cut essential services far too far or raise taxes far too far, they will be voted out of office. The sanction is, of course, electoral and of the people. Certainly for me—and, I think, all members of the Calman commission—the two principles that weighed were accountability and equity. I mention equity because if in future there are proposals that go further than the Calman commission, it is extremely important that the representatives of all parts of the United Kingdom be consulted and thoroughly involved because it would have implications for their countries as well.
The Scotland Bill, so titled, is important because its very existence demonstrates that the present devolution settlement is not set in stone and can be adjusted to meet Scottish aspirations without destroying the United Kingdom. I note the sentiments expressed by the Prime Minister in his speech in support of the union, which he made in Edinburgh earlier this year. In that address he made a point of saying that the changes made by the Scotland Bill need not necessarily be,
“the end of the road”.
He went on to say:
“When the referendum on independence is over, I am open to looking at how the devolved settlement can be improved further. And, yes, that does mean considering what further powers could be devolved. But that must be a question for after the referendum, when Scotland has made its choice about the fundamental question of independence”.
Lord Forsyth of Drumlean
If my noble friend thinks that there are further powers that could be devolved, why did the Calman commission not recommend them?
Lord Selkirk of Douglas
My noble friend is putting into my mouth words that are not there. I am not making any such suggestion, but if he listens to what I have to say, he will see the logic of my argument. As the Prime Minister said, let us hold the referendum, preferably on a less dilatory timetable than the Scottish Government are proposing, with a single question—to that extent, I disagree with the noble Lord, Lord Kerr of Kinlochard—asking whether or not the Scots wish to leave the United Kingdom. Time should also be given for the implementation of the new powers and to see how they work. That is the answer to my noble friend Lord Forsyth.
Any moves beyond the terms of this Scotland Bill would be bound to affect the constitutional future of England, Wales and Northern Ireland, and MPs and other representatives in other professions would have to be very fully involved in any future discussions. I thought we got the balance right when we were on the Calman commission. We took an enormous amount of evidence; we considered it very thoroughly, and at the end of it all the commissioners came to a unanimous conclusion. I certainly stand by what was expressed by that commission, and I believe that all the other commissioners do as well, including the other four who are with us this afternoon.
A great many will advocate the clear merits of Scotland remaining as part of the long-standing, extremely successful partnership that is the United Kingdom. I do not believe that a unionist stance is in any way incompatible with giving support to the increased powers granted to the Scottish Parliament in the legislation that we have been debating.
I welcome the fact that the Scottish Parliament has agreed that the UK Parliament should consider the proposals in this Bill and, by passing that Motion unanimously, has given it its backing. I checked this morning, by ringing the Scottish Parliament Information Centre, SPICe, whether this had gone through unanimously, and it did; there was no vote. I say to my noble friend Lord Forsyth that that includes the Conservative group of 15 MSPs, and I welcome that.
We have before us a very significant and substantial reordering of devolution. It should be enacted in timely fashion and, in my humble opinion, the title should be kept in place.
Lord Maxton
My Lords, it was not my intention to speak on this. Briefly, it was with great pleasure that I listened to the noble Lord, Lord Forsyth, use the term “poll tax” instead of “community charge”. He actually proved the point that the Minister—who has done an excellent job, I have to say—made in the very first debate this afternoon, that if something becomes the common parlance, it should be used as the common parlance.
The real point is that there has yet again been confusion—the noble Lord, Lord Kerr of Kinlochard, did it—between devolution, the democratic process of devolution and independence. They are not the same thing. That is why, although I support what this Bill is doing, I am not sure that this is the right time to do it. I am not at all sure that we should not, first, have had the referendum on independence in order for Scottish people to make up their minds as to whether they want to be an independent country totally separate from the rest of the United Kingdom or they want further devolution. We should let them decide on that first. The second question is just a confusion. There should be one question—independence or nothing else. For me, devolution was always about democracy and not about the separation of the Scottish state.
I have to say to the noble Lord, Lord Forsyth, who made great play of the fact that he sat in the Cabinet and could talk to the Prime Minister when he was Secretary of State, that that is fine. Perhaps he could but he did not represent the people of Scotland when he did so because he did not have the majority of Members of Parliament in Scotland when he was putting Scottish legislation through.
Lord Forsyth of Drumlean
I am most grateful to the noble Lord for pointing out my role as opposition while in government. Is it not precisely because his party used that kind of language—of people not having a mandate in one part of the United Kingdom—that the Labour Party now finds itself wiped out by the nationalists in Scotland? It was a very foolish thing to do and by doing so as unionists the Labour Party undermined its own position.
Lord Maxton
That may or may not be the case. It will be shown in both the independence referendum and in future elections after that. The fact is that separate Scottish legislation was passed through this Parliament without the mandate of the people in Scotland for that legislation. If it had been part of the same United Kingdom, there may have been a case for it but it was not. It was for separate Scottish legislation passed through Parliament by a party and a Government with no mandate in Scotland to push that legislation through. There is no better example than the poll tax, which the noble Lord himself first raised.
I support what this Bill is doing but I wish that we had waited until we had had the referendum on independence so that that could be put out of the way before we move on to see what further action can be taken on devolution.
Lord Browne of Ladyton
My Lords, those who have been engaging in our deliberations on the Bill and following its process cannot have failed to notice that not only have we been able to consider it today—a Tuesday—but that we have not had to wait until the fag end of the day’s business to do so. Of course the deep irony is that this is the day on which we least needed to get on early to consider the matters before us. However, we are moving through the Bill at a pace, and as we are nearing the end of our consideration of it I think it appropriate for me to make a few remarks.
I do not think that anyone could disagree that the Bill has been subject to rigorous scrutiny during its passage through this House, and I am confident that it is a better Bill because of that scrutiny. At least two Members of the House—my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Wallace of Drumlean—have made significant contributions.
Lord Browne of Ladyton
I am sorry—it is Lord Forsyth of Drumlean. On this occasion I cannot even give the excuse that I am tired. In Committee and at Report these two noble Lords paid assiduous attention to almost every detail of the Bill and ensured that we all had the opportunity to scrutinise it rigorously.
I also want to thank the noble and learned Lord the Minister. I extend my thanks beyond him to the Bill team and to officials in the Treasury who have shown me the greatest courtesy. In a sense they have supported me by giving me access to substantial amounts of information on the Bill. Throughout this process they have engaged with our Benches and with my noble and learned friends Lord Davidson and Lord Boyd of Duncansby, and my noble friend Lord Eatwell, who have shared the responsibility for our Front-Bench work on the Bill. They have engaged with us very positively and I am exceptionally grateful to them for that: it has made my job much easier. I think that we have improved the Bill particularly on the issue of references to the Supreme Court—a process in which my noble and learned friend Lord Boyd of Duncansby has been intimately engaged. The process has been wholly satisfactory and I think that we can all be satisfied with the final result.
I feel duty bound to inform noble Lords of the conversations with the Government that have taken place since Report on the issue of the conditions for using the extraordinary power to add new devolved taxes that is now contained in, I think, Clause 23. There was significant consensus across the House that it would be valuable to place in the Bill the conditions for using this extraordinary power—first, to safeguard its use by the Executive, and, secondly, as a way of obtaining the buy-in of the Scottish Parliament on these criteria. As I was substantially responsible for encouraging that consensus across the House, I have a responsibility for, in a sense, disappointing the House at this stage in the debate.
As I have also been very careful to say at all stages of the Bill, we have to be mindful of the political realities that we currently face. We have been treated to some interpretation of those political realities in our rather extended and diverse debate on the Bill, but one has become used to that in considering some of its aspects. The political realities are such that the Government’s commitments at Report were unsatisfactory, as I said in the debate. In essence, a year after enactment they are to bring forward a report on implementation of the financial provisions which will make specific reference to the list of conditions for using this power. That is the issue that exercised my and other noble Lords’ minds. Significantly, we have learnt since Report stage that the report will also be submitted to the Scottish Parliament, which will have an opportunity to thoroughly debate and agree to the provisions. That at least provides the opportunity for the engagement of the Scottish Parliament that I sought. However, it is not guaranteed to happen and I am not overplaying it.
Those additional facts, combined with the clear priority of the LCM—the legislative consent Motion, which was to be debated before we came to Third Reading—were, on balance, enough for it to be considered unwise to bring forward further amendments on this issue. With some reluctance I accepted that conclusion, despite being aware that I was disappointing the expectations of many noble Lords, and noble and learned Lords, in the House. I had encouraged those expectations, so to that extent I apologise. If it has in any way damaged my relationship with noble Lords or reduced their view of my worth to this House then I shall have to endeavour over the course of the coming months and years to remake that. However, that is where we are.
I turn now to the amendments of the noble Lord, Lord Forsyth of Drumlean, as somebody has to. I do so with some reluctance because I know how it encourages him to come back.
I start off by saying that I have sympathy with his analysis of the paucity of understanding of the full implications of this Bill in Scotland. I agree with him that we ought to ensure that the Bill is better understood in Scotland. I almost immediately part company with him thereafter, for two reasons—first, because renaming the Bill will do little to address that deep-seated problem for which many of those in devolution parties have to take responsibility. It is inappropriate to expect those who do not support devolution but seek independence for Scotland to trumpet the opportunities and potential benefits of a piece of legislation that reinforces devolution. Although it will probably never settle the argument of Scotland’s relationship with the rest of the United Kingdom, for some people in Scotland—and I expect this to continue throughout the rest of my life—if properly understood, it will strengthen the union.
The responsibility lies with us. It is potentially helpful, but not the answer, to simply change the Long Title of the Bill. I understand why the noble Lord, Lord Forsyth, seeks to do that, but you do not have to listen to him for very long to realise that it is a vehicle for him to articulate arguments that he has been articulating to the people of Scotland for some time in the confident knowledge that, if he lives long enough, some day he will be proved correct. The fact of the matter is, with all due respect to the noble Lord, that although we listen to him intently and I enjoy immensely his ability to make an argument, the people of Scotland stopped listening to him a long time ago. It is unfortunately true and I am sorry about it, because they would be better informed, perhaps, if on occasion they did listen to him—but they stopped listening to him a long time ago. That is part of the problem. The British tourist abroad, speaking slowly and loudly, does not work any longer with Scotland. Those of us who put ourselves forward for political office have an obligation to make our arguments in a much more sophisticated way and go with the grain of people’s expectations. Of course, we all have responsibility for generating those expectations, as indeed I did—and disappointed expectations at Report on this Bill. Those of us who believe in the union all have our DNA to some degree in the state of the Scottish scene at the moment, and we have a responsibility to deal with the issues and challenges generated from that.
This is a good Bill, and I fundamentally disagree with the noble Lord, Lord Forsyth, in that regard. It is a constitutionally significant Bill, and the new tax-raising and borrowing powers are worth in the order of £5 billion to £6 billion, marking an historical development in the financial accountability and autonomy of the Scottish Parliament. Furthermore, measures such as the devolution of drink-driving and speed limits as well as the regulation of air weapons ensures that the devolution settlement continues to respond to the needs and aspirations of the people of Scotland.
In recent months, much reference has been made to a new, notional devolution settlement, or maximum devolution, which for the most part has taken the form of a fill-in-the-blanks exercise. But ultimately politicians are kidding themselves if they think that the people of Scotland are interested in some esoteric debate about devo-max versus devo-plus versus the status quo. This Bill is the consequence of a sensible process; its origins lie in the Calman commission, and I repeat my thanks to those Members of this House and others who served on that commission. The work that they did has not been given the credit that it deserves, and it is well worth revisiting the argumentation for the recommendations that gave rise to the Bill. The Bill presents the people of Scotland with a clear and concrete vision for the future of devolution, a vision that is evidence-based, thanks to the Calman commission; has the support of Scottish business, Scottish civic society, experts and academics; and will when properly understood and implemented support the future prosperity and aspirations of Scotland within the union.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Forsyth of Drumlean for introducing these amendments. I will try to say something about them but, as my noble friend Lord Steel of Aikwood said, they have also provided your Lordships’ House with an opportunity to have something more akin to a House of Commons Third Reading debate, which has been very useful. I am very grateful for the comments that have been made from all parts of your Lordships’ House and wish to express my appreciation for the kind personal words that have been said.
I hope that I can do justice to a number of the comments that were made, but perhaps I may start by referring to the amendments. I understand and know where my noble friend comes from, and I would wish to join others who have paid tribute to him for his diligence in our proceedings on the Bill. He has highlighted a number of issues, and while I know that he will not always necessarily have been satisfied with the replies, he has at least prompted consideration and detailed scrutiny of the Bill, which is one of the purposes of your Lordships’ House. His amendments give him a hook to hang a number of points on. I know that he is not happy with the Bill, and I suspect that we will disagree on this just as we disagreed 14 or 15 years ago on devolution. Nevertheless, I respect the view that he has maintained over a long period.
In tabling the amendment, my noble friend sought to improve the drafting of the Bill, which is a criterion for getting an amendment accepted at Third Reading. I am sorry to say that I do not think the amendment meets that test. One learns interesting things in dealing with these Bills. The purpose of the Short Title of the Bill is that it must give sufficient indication of the content in a way that is not misleading; it cannot be argumentative or a slogan; it becomes the Short Title of the Act when passed, so it needs to be helpful to users and not unwieldy; and, above all, it must be short. With due respect, my noble friend’s amendment does not meet that test.
I accept one part of his argument. It is important that people in Scotland, as well as in other parts of the United Kingdom, recognise what the content of the Bill is because these are important and profound changes. It is up to all the political parties to ensure that the knowledge is there and that debate in the Scottish Parliament now focuses on how these powers will be used. There are important powers relating to airguns and speed limits but also with regard to taxation, as well as the fact that stamp duty on land transactions will be disapplied in Scotland in 2015. When it comes to forward planning, the Scottish Parliament cannot sit around for very long before we start to get the colour and shape of how it will use these new powers and how it can do so imaginatively in a way that has not been done across the UK as a whole. I hope that, in taking forward these powers, there will be debate about their use.
On the issue mentioned by my noble friends Lord Selkirk of Douglas and Lord Steel of Aikwood, the purpose of the legislation following on from the Calman commission was indeed to increase the accountability and responsibility of the Scottish Parliament. I think that it was in his Donald Dewar lecture that my noble friend Lord Steel reflected on just how unsustainable it would be for a Parliament to persist over a long period almost wholly dependent on a grant voted to it by another Parliament. That, and the need to increase the accountability of the Scottish Parliament, are things that those of us who sat on the Calman commission were very conscious of. We also sought to get to a balance, as my noble friend Lord Selkirk said, between accountability and risk. Within a social union, many of these risks are shared, and better shared across a union of 60 million people than 5 million.
Perhaps the most important change relates to income tax. As Calman commissioners, the evidence that we received suggested very much that income tax was the tax that most people could recognise as having the most direct personal impact on them and therefore the one most likely to deliver that accountability.
I do not accept that the changes are too small; I believe that they will lead to greater accountability. The noble Lord, Lord Kerr of Kinlochard, suggested that we should have gone much further and had a debate during the passage of the Bill on some of the wider powers that have been discussed in the media and political forums over recent weeks and months. However, as the noble Lord, Lord Browne, said in welcoming the Calman commission, it was the consequence of a considered process. If one looks back at the constitutional convention that sat in the 1990s, which led ultimately to what was in the Scotland Act 1998, and the provisions suggested by the Calman commission, which deliberated and then led to the legislation before us today, we see a process whereby political parties—sometimes not as many as we would like—have joined in and reached a consensus without reflecting their own concerns and viewpoints. We have then been able to take that consensus forward, present it to voters in an election and subsequently go forward to legislation. I do not think that that would have been at all possible with regard to some of the perhaps more far-reaching issues that the noble Lord, Lord Kerr, referred to in terms of dealing with this legislation.
I say to the noble Lord, Lord Maxton, and the noble Baroness, Lady Liddell, that I recognise there are judgment calls about whether the timing is right. However, I share the view of the noble Lord, Lord Browne of Ladyton, that the manifestos of the Conservative Party, the Liberal Democrats and the Labour Party at the last election each made a promise. We do not need to be terribly imaginative to write the script of those who wish to advance the cause of independence and say, “Look, they promised you that and Westminster has not been able to deliver it. How much more can you actually trust Westminster?” That is a script that we will not let them write. It is right and proper that we have proceeded with this Bill.
My noble friend Lord Forsyth was sceptical about whether, if at a future date the Scottish Government or Scottish Parliament espoused devolving a particular tax, Westminster would be able to stand up to them. Let us recall—
Lord Forsyth of Drumlean
It was not about devolving a particular tax but about inventing a completely new tax.
Lord Wallace of Tankerness
My Lords, similar arguments apply whether it is for a new tax or the devolution of corporation tax, which is not a tax that the Scottish Parliament currently has. The more general point is that the Scottish Government actually asked for devolution of excise duties and corporation tax and the United Kingdom Government did not believe that the case had been made. This Government made it clear that we would not devolve further taxes unless there was evidence presented and a case made. In these particular examples, we took the view that no case had been made. There was no evidence and therefore it was resisted.
Lord Forsyth of Drumlean
There is a distinction between creating a completely new tax and devolving an existing tax. Corporation tax is an established tax in the Finance Bill. If Alex Salmond thinks of a completely new tax, all that is required for it to be imposed is for an Order in Council to go through both Houses of Parliament. That is a completely new and novel procedure and quite different from an argument about who will administer or levy an existing tax.
Lord Wallace of Tankerness
I apologise if I misrepresented what my noble friend said. However, the response is similar. Having identified criteria, whether in the Bill or not—we have had debates on that—the point I wish to make is that there are criteria there and the United Kingdom Government have shown that they are not a pushover. We set out criteria regarding devolution of existing taxes; we stood by that and I have no reason to doubt that, having set out criteria regarding the devolution of any future tax, we would have to be satisfied before bringing forward to this and the other House an order to devolve further taxes.
Could I pick up the point of the noble Lord, Lord Kerr of Kinlochard, and the noble Baroness, Lady Liddell? She said that a different debate was going on. The two debates are not mutually exclusive. The difference is that while there has been a lot of talk by the Scottish Government about change, this Bill actually delivers change. However, many of us want to get on to the wider debate. Inevitably there will have to be a debate on process—the shorter the period devoted to it the better—but there are important issues. The noble Lord, Lord Kerr of Kinlochard, clearly set out at least one of them: fiscal autonomy and its relationship to monetary policy. The conclusion of the Calman commission was that there was not much difference between fiscal autonomy and full independence. Clearly these are questions that will be debated in a much wider forum in the lead-up to a referendum.
There is an important issue about Europe and an independent Scotland’s relationship with the European Union. I respectfully suggest that a person with the knowledge and expertise of the noble Lord, Lord Kerr, free from any party-political baggage, could give a view on that which people would listen to and would be an important contribution to a debate. I hear what is said about an independent commission. It might be a triumph of hope over experience, but I hope that there will be opportunities for independent think tanks and people with expertise and renown in their specific fields to come forward and express their views on the issues that will inevitably emerge in any referendum debate.
Lord Wallace of Tankerness
My Lords, it is fair to say that in the consultation paper that we launched on 10 January it was made clear that a single question was the preferred position of the United Kingdom Government. I am happy to say that the responses that we have received to that consultation give great support to that position.
In conclusion, I again acknowledge the benefit to the Bill of consideration and thorough scrutiny in your Lordships’ House, and not just in those areas where amendments have been made as a result of our debates. Through our debates we have explored many of the issues that we will continue to face as we move to the next important phase of implementing legislation. I echo the thanks not only to those who have taken part in the debates but to those who have supported me and my noble friend Lord Sassoon in them. While there have clearly and importantly been divisions—it would be very boring and impossible to achieve total consensus—it is not usual for a Bill to be supported by all three United Kingdom parties. However, there has been a note of consensus, which has been welcome. I also welcome the scrutiny. Whether noble Lords were supporters of devolution back in 1998 or support every clause here, I hope we recognise that we are stronger within a United Kingdom in which we devolve powers to the appropriate level and work together to pool resources and risks across the country for the benefit of all. That is what the Bill seeks to advance. It is part of developing and continuing support to maintain the United Kingdom, of which all noble Lords and I are very proud. I ask my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
My Lords, I am devastated by that response. I am very disappointed in my noble and learned friend. I actually understood the criteria for the Short Title of a Bill, but I remember having a great struggle with the Scottish Office, which wanted to call a Bill the “Criminal Justice (No. 3)(Scotland) Bill” and I wanted to call it the “Crime and Punishment (Scotland) Bill”. I think that in the end I won that particular argument, but the legislation was promptly repealed by the Scottish Parliament, only to be reintroduced later as a populist measure in the same terms.
I do not accept that the Short Title I propose is too long. That was the only argument against the amendment that my noble and learned friend advanced in his interesting and helpful speech. One of the criteria is that the Short Title should not indicate advocacy or a point of view. I resisted that, although I was tempted. My draft suggested a Bill “to ensure that Scotland becomes the highest taxed part of the United Kingdom”, but the Public Bill Office felt that that did not meet the criteria. However, it would at least have warned people about what was coming down the legislative track.
As my noble and learned friend guessed, I tabled the amendment because I suspected that under our rules we do not normally make speeches when we are considering a Motion that a Bill do now pass. I suspected that people would want to get a few things off their chest. I shall resist the temptation to respond to all the points that were made, but I am also devastated by the remarks of the noble Lord, Lord Browne, who tells me that the people of Scotland stopped listening to me some time ago. I should be very grateful if he could tell me afterwards when it was that they were listening to me.
I have to say to my noble friend Lord Selkirk of Douglas, who said that I should note that the Scottish Parliament, including the Conservatives, had unanimously approved the Bill, he should note that the Scottish Parliament’s committee came forward with 45 different amendments to the Bill, which would have amounted pretty well to independence, and which the committee said it would insist upon. What my noble friend should note is that the Scottish Parliament seems to change its mind very radically very quickly. When people change their mind very radically very quickly on important constitutional issues, alarm bells should start ringing and people should start thinking about what is going on here. I have to say to the noble Lord, Lord Browne, who gave a romantic picture of the genesis of the—
Lord Selkirk of Douglas
Is my noble friend aware that in the Scottish Parliament there has been a great debate within the SNP as to whether the Bill is a block or a wedge? The SNP decided to agree to the legislative consent Motion. Is that not very much a step in the right direction?
Lord Forsyth of Drumlean
Not at all, because the SNP has clearly decided that the Bill is not a wedge and will help it to get independence. In that respect, I entirely agree.
Lord Forsyth of Drumlean
Only if you believe everything they say in the Scottish Parliament. It is perfectly clear what has happened here. One of the extraordinary things about this whole issue of devolution is that for a long time one of my allies in opposition to devolution was the First Minister, Alex Salmond. He refused to join the constitutional convention, and when he went back to Scotland to be a—I am sorry, I nearly said something that I would have regretted—to take a leading role in the SNP in the Scottish Parliament, having stood on a platform in 1998 with Donald Dewar to campaign for the Scottish Parliament, he denounced devolution as a complete disaster. Now he goes around presenting himself as the champion of those people who want devo-max. When you look around, there does not seem to be anybody who wants devo-max, or who can at least explain what it is.
I have to say to my noble friend that the nationalists have been completely opportunistic about devolution. In the beginning, they thought, like the noble Lord, Lord Robertson, that it would kill nationalism stone dead. When they realised what my noble friend Lord Lang and others, including our previous Prime Minister, Sir John Major, were warning—that it would be a slippery slope that would lead to their objectives—they changed their position in order to get it. Then they flip-flopped. At each point where further concessions have been made, they have put them in their pocket, which is why they voted unanimously, and moved the agenda on. What the noble Baroness, Lady Liddell, said, is absolutely right: the Bill is completely out of time. It is as relevant as the Daleks to youngsters nowadays—although I believe they are making a comeback. I have no doubt that devolution in another Bill will be coming back in due course.
The noble Lord, Lord Browne, says that this has all been part of some great process. I was devastated by the remarks of the noble Lord, Lord Maxton. The fact is that this Bill’s genesis was a deal put together by the unionist parties after, very bravely, Wendy Alexander, who was then the leader of the Labour Party in the Scottish Parliament said, “We ought to have a referendum on independence and Alex Salmond needs to put his case to the Scottish people”. She was right then, but the rug was pulled out from under her by Gordon Brown as Prime Minister because he had an attack of the jitters that the referendum might go the wrong way. As a result, the Labour Party was left with no policy, so it said, “We’ll set up a commission”—does this sound familiar?—“because we are not sure what we’re going to do next”. It set up a commission and, very foolishly, the Conservative Party and other parties joined in a commission to rescue it.
That is the genesis of the Calman commission. It was to come up with something that would stop Alex Salmond winning the subsequent election, which everybody accepted—did they not?—was impossible because the rules of election to the Scottish Parliament had been devised by the very clever Donald Dewar and other clever people to ensure that no party would ever be able to get an overall majority. Just like the notion that devolution would kill nationalism stone dead, that turned out to be another myth. The result is that we are now faced with a nationalist majority committed to an independence referendum. The noble Baroness, Lady Liddell, is absolutely right: that is the issue now. The Bill has been left stranded as an orphan that is not even discussed in the Scottish media.
Although the noble Lord, Lord Kerr, and I disagree on the objectives here, he is absolutely right when he criticises the fact that the Prime Minister went up to Scotland and spelt out in a brilliant speech the case for the union but then went on to say, “Of course, after you have voted against independence, we will discuss more devolution”, without saying what that would be. That was a huge error because of course, once again, Alex Salmond picked that up, put it in his pocket and now, as far as he is concerned, the debate is about what extra devolution we are going to get. At some point, those of us who are unionists have to stop sliding down the slippery slope, define what the issues are and give the people of Scotland an opportunity to determine them. No doubt that will happen in due course.
I just wanted to say—
Lord Forsyth of Drumlean
For a man who made a whole speech on my amendment without even mentioning it, I think the noble Lord is skating on thin ice—not for the first time, I may add. My speech in support of my amendment was in perfect order, but I can see that I am beginning to irritate the noble Lord, which is the last thing I want to do.
I say one thing in tribute to my noble and learned friend Lord Wallace of Tankerness, who is the Kate Adie of the House of Lords, and my noble friend Lord Sassoon, who is, sadly, not here—I thought he enjoyed our debates on the Scotland Bill. I guess that I have probably not made their life particularly easy. I think that the whole point of this place is that it challenges legislation. That is increasingly important. The Bill illustrates that. As the noble Lord, Lord Browne, said, this Bill sailed through the House of Commons without any proper discussion whatever because it was guillotined. In the manifesto of the Conservative bit of the Government—I know that we have put a lot of emphasis on our manifesto promises—we promised that would end the automatic guillotining of Bills in the other place. We have not done so, as exemplified by this Bill.
I should also like to say how much I appreciate the work of officials in the Treasury and the Scottish Office. I do not think that they have had a particularly easy time but, having produced a Bill such as this, I do not think that they deserved a particularly easy time. This House has shown its worth in respect of this Bill.
At the end of all those hours of work, nothing has changed other than the wretched speed limits. So what have we achieved? I hope that in considering the implementation of the Bill, not least on the very unusual tax-raising powers, my noble and learned friend will at least think about how to avoid some of the pitfalls, which I believe were seen on all sides of the House. I have very great pleasure in begging leave to withdraw my amendment.
Universities: Fees
Lord Forsyth of Drumlean Excerpts(12 years, 8 months ago)
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Lord Forsyth of Drumlean
To ask Her Majesty’s Government whether they will ensure that students who are resident in England, Wales or Northern Ireland and attend Scottish universities will pay the same fees as those living in other European Union member states.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, as I set out on Report on the Scotland Bill on Monday, higher education is devolved across the United Kingdom. This means that all areas of the UK have made different decisions regarding the funding of higher education. Any change to the devolution settlement would risk a key principle of devolution: that the devolved Administrations have the freedom to set devolved policies as they see fit.
Lord Forsyth of Drumlean
My Lords, I thank my noble and learned friend for that very disappointing reply. Should the Government not get together with the Scottish Government and end the scandalous discrimination against students from England, Wales and Northern Ireland, who have to pay up to £36,000 to go to a Scottish university, where Scottish, Italian and French students can go for free, and where anyone else in the European Union can also go for free? Meanwhile, under the Barnett formula, people from the rest of the United Kingdom are funding a grant for Scotland that works out at about 20 per cent more per head than is spent in England. This is not sustainable; it is unfair to our young people; it is bad for the union; and should the Government not do something about it?
Lord Wallace of Tankerness
My Lords, I recognise the sensitivity of the issue—and the tenacity with which my noble friend pursued it in Committee and on Report. It is totally in character that he should continue to do so. As I indicated, fees are only one part of the question. Different student support arrangements are in place in different parts of the United Kingdom. Support for English students, including English students studying in Scotland, is more generous than for Scottish students studying in Scotland. The universities in Scotland have also made generous bursary arrangements for English students wishing to study at Scottish universities. It was suggested on Monday that there should be pan-UK discussions on the matter. I indicated then that I would relay that to the Department for Business, Innovation and Skills. That proposal has been relayed. However, I do not wish to raise unrealistic expectations. It might be useful for Administrations in all parts of the United Kingdom to come together and discuss the issue.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(12 years, 8 months ago)
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“Referendum about Scottish independence: further provision
(1) Any referendum held in pursuance of the provisions of section 30 of the Scotland Act 1998 shall not take place until nine months after every Secretary of State has laid before both Houses of Parliament a paper prepared by their department setting out the implications of an independent Scotland—
(a) to that department and its executive agencies,(b) for that department’s policies, and(c) for that department’s planned expenditure.(2) Any referendum held in pursuance of the provisions of section 30 of the Scotland Act 1998 shall be administered by the Electoral Commission with a single question relating to the future position of Scotland in the United Kingdom.”
Baroness Anelay of St Johns
My Lords, I remind colleagues to leave the Chamber peacefully and quietly on this last day of sitting so that my noble friend Lord Forsyth may move his amendment.
Lord Forsyth of Drumlean
My Lords, I am surprised that there is not more interest in this important piece of legislation. This amendment is very straightforward. If my noble and learned friend is not able to accept it, I hope that at least he will be able to give an undertaking that the substance of it will be adopted by the Government.
It is perfectly apparent that the Government do not intend to use the Scotland Bill to provide for the forthcoming referendum on independence. As my noble and learned friend has made clear, the preferred procedure is to use a Section 30 order, but subject to the important conditions that such a referendum taken forward by the Scottish Parliament would be regulated and run by the Electoral Commission, and that there should be a single question.
This amendment is concerned with what happens in the run-up to the referendum. I take it that if my noble and learned friend is not successful in persuading the Scottish Government of the need to move forward on a Section 30 basis, they will bring forward a Bill in the next Session of Parliament to provide for a referendum. No doubt the date of that referendum would be decided at that point.
It is important that we have an informed debate within the United Kingdom as a whole and Scotland in particular. So far the debate has all been about process, about who is going to set the question and what the question should be. This is an important question. It concerns the future of the United Kingdom as a whole, and will have an immense impact on people in ways that many people, including myself, have not even thought of.
This amendment asks the Government for a clear undertaking that every single government department will set out in a Green Paper, in objective—not political—terms, what the consequences of independence would be and what issues would need to be addressed. There are large-scale issues that are obvious, such as what would happen to our nuclear deterrent given that the Scottish Government are opposed to nuclear material being on Scottish soil, and the costs and employment consequences of that. There are also issues about public sector pensions as Scotland, because of its long tradition of public service, has a disproportionately large number of people involved in public service.
In the field of banking and finance, the Treasury should indicate what would happen to organisations like the Royal Bank of Scotland; for example, how could it possibly meet its requirements for raising capital in an independent Scotland? What would happen on the currency? What would happen on the role of the Bank of England? How would we avoid a Greece-like situation?
In the Department of Energy and Climate Change, what would happen in respect of the interconnectors and how would the so-called green policy of being entirely dependent on renewables work in an independent Scotland? It might be cheaper for England to buy its electricity from France, which is generated by nuclear, than from Scotland, where the whole business model for the Scottish Government’s green agenda depends on being able to add to the bills of English, Welsh and Northern Irish consumers.
Those are some examples; I could go on but I have no desire to spin out the debate today because I know people are anxious that we should conclude these proceedings as speedily as possible. But if we leave it to campaigners and politicians to exchange perhaps not entirely well informed arguments, the public will tire and the very serious consequences of the disintegration of the United Kingdom, of the balkanisation of Britain, will be lost sight of.
If I were in my noble and learned friend’s place, I would say, “I am not sure that it is necessary to put this in the Bill”. I accept that, but we should have an undertaking that every government department and its executive agencies will set out the implications for their policies and planned expenditure, so that people go into this with their eyes wide open, and the separatists who advocate breaking up Britain have to explain how they would address these issues. At the moment, people are going round saying that it is up to us to make a positive case for the United Kingdom. I reject that. It is up to those who propose change to explain how they will maintain the benefits that we all enjoy as part of the United Kingdom, wherever we live and whatever our political convictions.
Lord Deben
Does my noble friend agree that this is absolutely crucial for those who are not Scottish as well as for the Scottish? Many in England feel that they need to understand exactly what the consequences are and unfortunately up to now they have had no such opportunity, which is why his amendment is so important.
Lord Forsyth of Drumlean
I am most grateful to my noble friend for that intervention. I look at this from a Scottish perspective and I should have given more emphasis to that. He is absolutely right. This will have huge implications for people in England as well as Scotland. I find it very difficult to see how we could keep our role and influence in the United Nations, for example, if the United Kingdom was broken up. I think our country would be seen to be greatly diminished internationally. I do not quite know how it would work, given that the Scottish nationalists are opposed to our membership of NATO. Most countries are queuing up to try to get in to NATO, but this lot want to leave NATO. What is the position of our armed services, whose dedication fills everyone in the country with admiration?
The Lord Speaker (Baroness D'Souza)
Does the noble Lord wish to move his amendment?
Lord Skelmersdale
My Lords, perhaps I may gently suggest that my noble friend Lord Forsyth finishes his words of wisdom before anyone else interrupts because it interrupts the flow of what he is saying.
Lord Forsyth of Drumlean
I am most grateful that I have a fan here, although the interventions that have been made were very pertinent. I beg to move.
Lord Gordon of Strathblane
I intervene briefly to suggest that the perceived impartiality of such a series of reports might be improved if it was handled by the equivalent of a Calman 2 commission, preferably of economists of sufficient stature that they would put their own reputation for impartiality above any party advantage. Ideally—I hope that I am not being unduly starry-eyed about this—if the membership of such a committee could be agreed with the Scottish Government, there would be no come-back. I agree that that looks pie in the sky, but there are economists, including economists of a nationalist tendency, who would not put their own reputations on the line by being seen patently to lie about the consequences of certain things. I simply suggest that the equivalent of Calman 2 might be a useful prerequisite for any debate on any amendment. I wonder whether the noble Lord agrees with that.
Lord Forsyth of Drumlean
I think that the noble Lord intervened before I sat down. I do agree with that. The next inquiry of the Economic Affairs Committee of this House, of which I am a member, as the noble Lord will be aware, will be into the economic impact of independence on the United Kingdom as a whole. I agree that many economists can contribute to that in an informed and objective way. I think that the committee will produce some very interesting material as a result.
Lord McCluskey
In addition to economic and legal aspects—many different opinions have been expressed publicly by members of the Scottish Government and the United Kingdom Government—I wonder whether the noble Lord has considered legal matters such as the right of Scotland or the ability of Scotland, if independent, to join the European Union or to retain the pound and matters of that kind. Does he think it is advisable that, in addition to a committee of experts such as the noble Lord, Lord Gordon of Strathblane, has mentioned, there should be from this House a committee including lawyers and experts who can offer independent advice on such questions?
Lord Steel of Aikwood
My Lords, my noble friend Lord Forsyth has done the House a service in raising this issue this morning, but I am deeply pleased that he is not going to press the amendment, because it is seriously defective. The idea that we should wait until nine months after the last government department has produced a Green Paper on this subject fills me with dread. I am in favour of a referendum as soon as possible. This would have the effect of delaying it indefinitely—indeed, possibly beyond the date that even Mr Salmond hopes to achieve. I know that the noble Lord is not going to press it, so I will not—
Lord Forsyth of Drumlean
The point of the nine months was that I would like this information to be brought forward as soon as possible. Nine months seemed a reasonable period in which people could have an informed campaign. The Green Papers might be published, but you then need that information to be used as part of the campaign and for people to absorb it. It requires some time.
Lord Steel of Aikwood
I do not dispute that. I am querying the length of time that it would take for each UK government department to produce its Green Paper. That is my point.
Lord Steel of Aikwood
The nine months starts after that. I hope that my noble friend is not going to press his amendment.
In the second section, it is of course the case that the single question should relate to the future of Scotland in, or out of, the United Kingdom. You cannot assume that it would be in the United Kingdom.
Leaving that to one side, the kind of information that we would need is what the effect would be, to take one example, on the financial situation in Scotland if it were independent. There seem to be three options: Scotland is in the eurozone, which used to be SNP policy; or it is dependent on the Bank of England, in which case it is not proper independence; or else we have a Scottish currency like the old Irish punt. These options need to be spelt out. That is the kind of information for which my noble friend is pressing, and I hope that when my noble and learned friend comes to reply he will be able to give us some indication of the kind of work that is going on on these issues.
Lord Wallace of Tankerness
My Lords, I did not mention that, but it is a pertinent point. Some academic bodies have produced reviews on it.
Lord Forsyth of Drumlean
My Lords, we have had a very interesting debate. I know that my noble friend Lord Shrewsbury has waited patiently to move his amendment and I am sure that he would appreciate it if I did not say very much. So I will not, other than to make one point to my noble and learned friend.
I thank my noble and learned friend for the response, which is very encouraging. However, for once he was a little more aggressive than I am, when he said that he wanted government departments to make the positive case for the union. That is not what this amendment is about—I do not want government departments to make the positive case for the union, I want them to set out, objectively, what issues should be tackled. I do want Secretaries of State and Ministers to make the positive case for the union and hope that my noble and learned friend might ensure that the Prime Minister—who has said that he will fight to defend the United Kingdom to the last breath of his body, I think—is aware of the strength of feeling in this House that government departments should do this. This is not something that can wait until after the Summer Recess. They should be doing it now. One by one, these departments should be setting out what the issues are. It would be completely disastrous, and actually quite wrong, if we were to allow government departments to step into the area where they were involved in advocacy as opposed to providing information. That would undermine the whole nature of the debate. There are plenty of advocates for the union—what we need are the facts. The First Minister is very fond of quoting Burns:
“But Facts are chiels that winna ding”.
I beg to withdraw the amendment.
Lord Gardiner of Kimble
My Lords, I support my noble friend in his amendment and in doing so declare my interest as executive director of the Countryside Alliance. My noble friend has highlighted the complexities and consequent costs if the Scottish Government insisted on visitor permits for air guns from those from other parts of the United Kingdom. This reasonable amendment seeks to protect legitimate users across the country from potentially undue and disproportionate bureaucracy. Should we really be asking the police in England, Wales and Northern Ireland to spend resources and time in dealing with visitor permits for Scotland? I ask my noble and learned friend to reflect on these matters and I hope that sense will prevail.
Lord Forsyth of Drumlean
I support my noble friend in his amendment, which is very reasonable and quite restrained. I suspect that my noble and learned friend will say that the provision simply provides a power for the Scottish Parliament and that it is a matter for the Scottish Parliament, but that is a less than responsible position to take. We all remember the genesis of this proposal and its inclusion in the Scotland Bill; it arose because of some very tragic events in Scotland. But as is often the case, the conclusion is that something must be done—and this is something being done without the consequences being thought through, which can add enormously to the bureaucracy and difficulties.
My noble friend Lord Shrewsbury has given us a glimpse of the enormous difficulties that could be created for the police in taking them away from their vital duties in pursuit of serious crime. Air guns are not subject to numbering in the way that shotguns and other firearms are, apart from those that are very powerful. One Member of this House, who had an association with the special services, briefed me that they could actually be extremely powerful weapons. But for the vast majority of people using air guns as part of their leisure activity, they are not numbered, and there are very real difficulties with that. It seems a little perverse to argue—if my noble and learned friend is to make this argument—that we are just giving the Scottish Parliament a power and do not need to worry too much about how it is implemented, because that is for the Scottish Parliament, when that will have enormous implications for people in the rest of the United Kingdom and, indeed, the rest of the European Union. I very much hope that my noble and learned friend will at least take this away and think about the very important arguments that have been made, with a view to perhaps coming forward with some practical proposals at a later stage.
The Earl of Caithness
My Lords, if I might follow my noble friend Lord Forsyth, he said that the reply that our noble and learned friend was going to give was that all of this would just provide a power for the Scottish Parliament. That is true, but it has cost implications for the police forces in England, Wales and Northern Ireland. If my noble and learned friend cannot accept this amendment, would it not therefore be in order for the other police forces that are put to extra cost by the Scottish police, in seeking information about firearms, to charge for the cost of their time?
Lady Saltoun of Abernethy
My Lords, I shall speak also to Amendment 10, which is almost identical. Noble Lords will no doubt remember that in Committee we had considerable discussion about the phrase “Scottish Crown Commissioner”. There was a little problem. If he were called the Scottish Crown Commissioner, he would not have been able to take part in anything concerning England, Wales or Northern Ireland. This was not thought desirable. We discussed the matter for a bit and then I had an idea—I suggested the phrase “Commissioner with special responsibility for Scotland”. To my amazement, this appeared to find favour with the noble and learned Lord, so I put it down as an amendment for Report stage. I beg to move.
Lord Forsyth of Drumlean
My Lords, we have been singularly unsuccessful in getting my noble and learned friend to accept any amendments so far in the long consideration of the Bill, but here is one that he cannot possibly refuse to accept. He is surely not going to argue on the basis of syntax that he could not accept the noble Lady’s very sensible common-sense amendment, which I have great pleasure in supporting.
Lord Cameron of Lochbroom
My Lords, it is not merely a matter of syntax—it is what the Crown Estate Commissioners represent. They represent a single body with jurisdiction over the Crown Estate in each of the four constituents of the United Kingdom. It is clear that the amendment would cure the problem and recognise that responsibility. I therefore have no hesitation in supporting it.
Lord Forsyth of Drumlean
I beg to move Amendment 12 standing in my name. I do not intend to move or speak to Amendment 13. This is a very straightforward amendment. I hope that I have caught the Minister on a roll and that he might feel able to accept my amendment. I am tempted to get my noble friend Lady Saltoun to move all my amendments. She speaks very briefly and the Minister says yes. Perhaps there is much to be learnt from that.
We discussed this issue in Committee and I will not go over all the arguments but essentially the Bill devolves control of speed limits to the Scottish Parliament, so we will have different speed limits north and south of the border, or the prospect of that happening. I think that is absolutely ridiculous, but given that that has been agreed by the Calman commission, and is stated in the report and in the Bill, and given that it was a manifesto commitment to implement the Calman proposals, I will not argue against the principle of the Scottish Parliament having the power to set speed limits. However, if you are going to do something like that, you need to do it properly. The Bill gives the Scottish Parliament the power to decide speed limits for motor cars but not for caravans or HGVs. It is a nonsense to have the Department for Transport responsible for some speed limits in respect of some categories of vehicle while the Scottish Parliament is limited to others. My amendment may not be perfectly drafted but the sense is clear, which is that if we are to have the Scottish Parliament taking responsibility for speed limits, it should do so for every class of vehicle and not for particular classes of vehicle.
I know that my noble and learned friend Lord Wallace and my right honourable friend the Secretary of State have been in discussions with the Department for Transport. I know that it is not always easy to get agreement on these matters but I very much hope that my noble and learned friend’s well known skills in advocacy will enable him to accept this amendment if for no other reason than that it makes for good legislation and for clarity on the statute book, which is very much required. It is rather ironic that I should put forward an amendment which seeks to give more power to the Scottish Parliament. I beg to move.
The Duke of Montrose
I am very interested in this issue, on which I spoke in Committee. However, I am still rather puzzled as to what the Scottish Parliament will gain from this aspect of devolution because, as far as I can see, it already has powers to introduce any speed limit that it wishes on any road. As I drive along roads in Glasgow and out in the country, I come across speed limits that are set at 40 miles an hour and 50 miles an hour. Therefore, I hope that the Minister will indicate why this aspect of devolution is required.
Lord Forsyth of Drumlean
I thank my noble and learned friend for accepting the amendment. I also thank the Secretary of State for Scotland for doing battle with the Department for Transport and delivering this outcome. I think that The House Magazine has counted the number of words that I have spoken during the passage of this Bill. It is a supreme irony that the only change I have achieved so far is to increase the powers of the Scottish Parliament and to deliver more of what is in the Calman report, but such is the nature of politics. As I say, I am most grateful to my noble and learned friend. I am sure that what is proposed makes sense. I am also grateful to the noble Lord, Lord Browne, and his colleagues for their support on this matter. I beg leave to withdraw the amendment.
Scotland: Constitutional Future
Lord Forsyth of Drumlean Excerpts(12 years, 8 months ago)
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Lord Wallace of Tankerness
My Lords, I hope the noble Lord will agree that we had a good debate about the referendum in Committee last Wednesday. I was able to give clear indications to the effect that, for example, the majority who responded to the consultation believed that powers should be devolved to the Scottish Parliament and that a great majority of those also supported the use of a Section 30 order. Our initial analysis shows clear support for a single question on independence, for the referendum to be held sooner rather than later, and for the involvement of the Electoral Commission. With regard to the second part of the noble Lord’s question, I hope that all departments will be very much engaged in setting out a positive case for the union.
Lord Forsyth of Drumlean
My Lords, first, I thank my noble and learned friend for the undertaking to publish the full results of the consultation before Third Reading. That is very welcome and much appreciated. Secondly, given that the Government have decided not to proceed by amendment of the Scotland Bill to a referendum, will he give an undertaking that in the absence of reaching agreement on a single question organised by the Electoral Commission, the Government will bring forward their own legislation in the next Session of Parliament, as a Section 30 order requires the consent of the First Minister and his officials?
Lord Wallace of Tankerness
My Lords, a Section 30 order requires the consent of both Houses of this Parliament and of the Scottish Parliament. As I said last week, if agreement cannot be reached on a Section 30 order and if we are to try to ensure that this matter is kept out of the courts, which would be very helpful, the Government will need to consider what other options are open to them in order to provide a legal, fair and decisive referendum. Many people said that there would be no chance of getting a legislative consent Motion in respect of the Scotland Bill, but that is now within our grasp and is going to happen. I think we should focus our efforts on making sure, as I believe we can, that we get a Section 30 order for a fair, legal and decisive referendum.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(12 years, 8 months ago)
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“Legislative competence: amendment to the 1998 Act
In section 29 of the 1998 Act (legislative competence) after subsection (2)(d) insert—“(da) it would result in residents in England, Wales or Northern Ireland being treated differently to citizens from other EU member states.””
Lord Forsyth of Drumlean
My Lords, I add my voice to those who are complaining about the way in which this Bill has been handled. In his reply, it would be helpful if the Minister could indicate where he proposes to get to this evening. It is suggested we can get to Clause 25—that is 15 groups of amendments and we normally finish at 10 o’clock. Although I mean to be brief, I do not think that that will be achievable. It is extraordinary that a Bill of this importance is being treated in this way. When I complain to the usual channels, they blame each other. Something has gone very wrong with the business managers in this House and they need to get their act together.
The great argument for devolution, which I opposed, was that Westminster was not able to deal with Scottish legislation. I have been around Westminster since 1983 and I have never seen a piece of legislation affecting Scotland handled as badly as this piece of legislation has.
Lord Foulkes of Cumnock
Has the noble Lord heard the suggestion from the Government’s usual channels that if we do not make progress today and Wednesday we should consider sitting on Thursday to deal with it? Is that not an astonishing suggestion?
Lord Forsyth of Drumlean
It is an interesting suggestion and if I thought it was correct I might defer consideration of my amendment until then as I would be able to get a majority quite easily, even if I just voted for it myself.
The noble Lords, Lord Hannay, Lord Sutherland and Lord Foulkes, have added their names to Amendment 1A. This is an historic occasion and there will be few occasions in this House when these four names together appear on one amendment. It emphasises the nature of this amendment and the nature of the injustice it seeks to deal with.
The amendment simply says that residents in England, Wales and Northern Ireland should be treated in exactly the same way by the Scottish Parliament as other members of other European states. One would assume this matter was completely uncontroversial. The amendment is grouped with Amendment 59, which provides for the Scottish universities to be consulted and for a delaying implementation provision in order to deal with any administrative difficulties that might arise.
I was acutely conscious of this issue when I ran at the beginning of this year for rector at the University of St Andrews, I regret to say unsuccessfully. I was beaten by a better candidate who had more time to commit to a great university. I attended the University of St Andrews with Alex Salmond. He ran the SNP and I ran the Tories. We had 1,300 members; he had three. It has changed round since those days. One of the characteristics of the University of St Andrews was that lots of students came from the rest of the United Kingdom and that is still the case today. What outraged me was discovering that students sitting side by side in classes are expected, in the case of those who live in England, Wales or Northern Ireland, to pay £36,000 in fees while those who live in Scotland or Poland or Germany or Italy or anywhere else in the European Union pay nothing at all.
That is an utterly divisive and wrong policy. It has been exacerbated by the increase in fees and by the fact that Scottish universities have four-year degrees. This amendment seeks to create the circumstances which would exist in Scotland if it were independent. If we had an independent Scotland, it would not be allowed under European law to discriminate in this way against those people who live in England, Wales and Northern Ireland.
I know that some people—not everyone, including me—have received directly a brief from the universities in Scotland which have expressed concern about this amendment. My noble friend Lord Vallance has made representations to me that if it were passed it would mean that there would be administrative chaos for the student intake arriving in September, which is why the amendment allows for some delay while this matter is sorted out.
The Scottish Government have been saying that if English and Welsh and Irish students—and that means people who are resident in England, Wales and Ireland; they might well be Scottish students whose families have moved to other parts of the United Kingdom—could go to universities in Scotland for free, there would be a flood across the border. This is the most disingenuous and dishonest argument. Ireland has no fees. People can go from Northern Ireland to the Republic of Ireland and they deal with it by having a quota for the number of students that they will accept. If it is suggested that quotas would be wrong, there is already a quota in operation. There is a quota set by the Scottish Government on the number of students who come from Scotland and from other European Union countries. To suggest that they could not have people resident in the rest of the United Kingdom coming on the same terms as those from Germany and elsewhere is, to say the least, misleading.
Lord Baker of Dorking
My noble friend is right about the incident that affected me because in the previous Budget the Chancellor gave £150 million to university technical colleges to develop the ones my educational trust is promoting. These train technicians and engineers. We have 19 in England and are looking at 22. But I discovered under the Barnett Formula that, out of the £150 million, £25 million was allocated to Scotland. I was rather glad about that because I have industrialists wanting to support UTCs in Aberdeen and in Glasgow. When I went up and met Mr Russell, who is the Education Minister in the SNP Government, he told me that that money had been spent on other things. I have no idea what it was spent on; it certainly was not spent on what it had been allocated for.
This is another case where Scottish students and indeed the Scottish economy are losing out as a result of this particular arrangement under the Barnett formula. The money has been snaffled to do something else with and it is a great loss to Scotland.
Lord Forsyth of Drumlean
I am most grateful to my noble friend. I am not arguing that the Barnett funds should not be transferred from one budget to another but I am arguing for free tuition being available, in the same way that it is available for German and French students, for students from the rest of the United Kingdom. I do not think that is unreasonable. If the issue of funding will cause difficulty between the Governments, they have got lots of negotiations on and they should sort it out. If we believe in the United Kingdom—and I do with a passion—I can think of nothing worse than creating a situation where young people are burdened with substantial debt because they went to a Scottish university and they see everyone else in Europe going for free.
It could be argued that that arises from the Scottish Government’s policy of having free tuition fees. I do not argue against their ability to do that but they have to operate it in a fair and balanced way. This amendment would enable fair treatment for all students throughout the United Kingdom. It may not be perfectly worded. I would be very happy if my noble and learned friend said that he could not accept this amendment but that he would bring forward one of his own at a later stage of the Bill which would remedy the problem. I do not want to detain the House as I am anxious that if we divide, everyone will have disappeared. I beg to move.
Lord Foulkes of Cumnock
My Lords, I was pleased to put my name to the amendment of the noble Lord, Lord Forsyth. It is not something anyone on this side does lightly. However, as I have said before, even a Tory is not always wrong and on this occasion he is absolutely right—spot on. It is an issue of fairness. I shall be very brief.
It is an issue of fairness when students from Lithuania and Poland can go to Scottish universities for free, but students from England, Wales and Northern Ireland have to pay full fees. As the noble Lord, Lord Forsyth, said, there is double jeopardy. The parents of the students from Poland and Lithuania do not contribute to the costs of Scottish universities, but the parents of the English, Welsh and Northern Irish students pay UK taxes. They have to pay full fees and the taxes that subsidise Scottish universities.
I know that there are concerns about funding. These have been expressed by the chancellor of the Royal Conservatoire of Scotland, the noble Lord, Lord Vallance, and in a letter to me from the noble Lord, Lord Smith of Kelvin, the chancellor of the University of the West of Scotland. However, that is not a matter for us; it is a matter for the Scottish Executive. As the noble Lord, Lord Forsyth, said, they get billions of pounds from the block grant. It is a matter of priorities. Scotland has free care for the elderly, free prescriptions for everyone, including the very rich, and a whole range of other things that are provided. Surely this is something to which they can give consideration. Without pre-empting what the noble Lord, Lord Sutherland, will say, he has looked at the funding in much more detail and can make suggestions. If the Scottish Executive need help, I am sure he would be very willing to provide it—at no cost, I presume.
Finally, I say to my colleagues on the Labour Benches that we now have no Whip on this matter. Therefore, we have the opportunity to vote as we wish. I hope we will make the right decision in voting on this and support the amendment. I have spoken to Labour MSPs who have supported what the SNP Administration are doing. They said that they did not want to do it and regretted having to do it but had no option because of how it was put to them in terms of funding. We have an option: we can support the noble Lord, Lord Forsyth, and we can support fairness. I urge noble Lords so to do.
Lord Sutherland of Houndwood
My Lords, I am prepared to take expert opinion on that. That does not rule out the possibility of the Administrations from Northern Ireland, Wales and Scotland sitting down with the Westminster Government and working out a quota system for within the UK. It is a broader question how the European Union behaves itself on this matter, and there may be alternative views.
Lord Forsyth of Drumlean
Is it not the position that in practice because the Scottish Government set a budget for the number of Scottish and EU students that they will fund—that is how they operate—all the noble Lord is saying is that there should be a budget for the English, Welsh and Northern Ireland-based students who attend?
Lord Sutherland of Houndwood
Certainly the Scottish universities funding council sets an overall budget which will pay for students who, as it turns out now, are resident both in Scotland and in the rest of the European Union. I accept the point made by the noble Lord, Lord Forsyth.
The force of what I have to say is that there needs to be discussion—I suspect it has been rather absent—between the funding councils and those who instruct them to see whether there is a way of removing this anomaly that none of us likes. How did we get here? By a slow process of change that has not had good consequences.
It would be unfair and unjust to discriminate only against the rest of the UK students, and if that is a principle that this House accepts, I hope that it will support the amendment.
Lord Vallance of Tummel
I am coming to that. For the next academic year and for the years beyond, places have already been offered to and readily accepted by students who are resident south of the border. Bursary and scholarship arrangements have been substantially modified to help them. Indeed, the financial basis and plans of Scottish universities for the years ahead are dependent on those arrangements, which, as of today, are quite legitimate under the provisions of the Scotland Act 1998. I appreciate the willingness of my noble friend Lord Forsyth to delay implementation, but the question is for how long. A year is simply not long enough.
Lord Forsyth of Drumlean
If the Scottish Government had their way and Scotland became independent, they would have to do this anyway. Given that we are going to have a referendum on independence, does the noble Lord not accept that the uncertainty arises from the Scottish Government’s own policy?
Lord Vallance of Tummel
I share entirely my noble friend Lord Forsyth’s willingness and desire to keep the United Kingdom united. We should not discuss here the circumstances of a hypothesis in which we are no longer a United Kingdom.
To alter the provisions of the 1998 Act now would outlaw arrangements already in place and would throw into considerable disarray the Scottish universities’ administrative and financial arrangements not just for the next academic year but for succeeding years as well. I cannot imagine that this is an outcome that your Lordships would wish to endorse.
Rather than constraining ourselves through legislation that prays in aid European Union regulation, and in so doing simply shifts the locus of the problem within the UK, we should surely retain as much scope as we can to sort out United Kingdom issues in a UK context and to find practical measures between good neighbours for dealing with the problems thrown up by the inevitable anomalies that flow from devolution—as the noble Lord, Lord Sutherland, said.
I will paraphrase the remarks of the Abbess of Crewe in Muriel Spark’s novel of the same name. A problem you solve; an anomaly you live with.
Lord Wilson of Tillyorn
My Lords, I will speak briefly. I declare an interest as a chancellor of one of the Scottish universities. I seem to be one of the very few people who has not received a briefing from Universities UK, Universities Scotland or anyone else.
There is no doubt that Scottish universities benefit enormously from having students from outwith Scotland. Whether they are from the rest of the UK, Europe or the rest of the world, they are very beneficial. There is also no doubt that it is uncomfortable to have students from, say, Northern Ireland, sitting next to students from the Republic of Ireland who pay different fees. It is not a happy situation. However, the reality is that the financing of universities in Scotland is a matter devolved to the Scottish Government. I cannot believe, even though I hope for the day when the situation is evened out, that it is right or practical for your Lordships’ House to legislate to change the financial structure of Scottish universities. I hope that the situation will be resolved over time, but I cannot believe that it would be right for us to legislate, and I would feel obliged to vote against the amendment.
Lord Forsyth of Drumlean
We are not legislating to alter in any way the devolved responsibilities of the Scottish Parliament. All that we are doing is requiring it to treat people from the United Kingdom in the same way as those from Europe. The amendment does not refer to tuition fees or universities; it simply states that you cannot discriminate against students within the United Kingdom but must treat them in the same way as you treat all other EU students. The amendment does not in any way unravel the devolution settlement.
Lord Wilson of Tillyorn
I understand what the noble Lord is saying, but the amendment would change the current way in which financial arrangements are made for Scottish universities.
Lord Stephen
None of this is simple. The Scottish Parliament came forward with some very practical and pragmatic solutions to try its very best to tackle this problem. Back in 2000, when we first looked at the problem, the big issue was how we treated Scots attending universities outside Scotland, because they, too, are prejudiced—in terms of some of the quite extreme language which has been used at times in this debate. For them, there is a system that is different from that for students from England, Wales and Northern Ireland when they choose to study at a university outside Scotland. I referred to the legal advice that we received that day when I said in the Scottish Parliament:
“We wished to treat all Scots the same, but a significant problem was drawn to our attention. Members have asked for the legal advice and I will try to be helpful on that point … Article 12 of the Treaty on European Union prohibits discrimination on the ground of nationality against nationals of other EU states. The imposition of fees on students who are students of other member states as a condition of access would amount to discrimination if the fees were not imposed on nationals of the host member state … We had to consider whether we, in Scotland, as part of the UK member state, could provide that Scots—who for this purpose would be regarded as UK nationals—did not pay tuition fees in the rest of the UK. Given the risks of challenge by other EU nationals and based on the best advice available, we produced the proposals that are before us today”.
In other words, if we had funded Scottish students to attend universities in England, Wales or Northern Ireland without payment of tuition fees, to put them on a level playing field with other students in Scotland, the Scottish Government could have been held liable to fund the tuition fees of all EU nationals from outside the rest of the UK who attended universities in the rest of the UK. This is a complex and difficult problem created, in many ways, by the EU legislation. “Change your lawyers”, I hear from the Bench in front in me, but we were given that advice by some very senior lawyers, one of whom is present on the Opposition Bench today—a noble and learned lawyer. We came up with what were called the Quigley principles—how many people remember them? It was all about creating some sort of level playing field. I am not going to get into the rather offensive language of ethnic cleansing or use the word “swamping”. We simply wanted to stop a surge in demand—a disruption of the system that currently allows over 20,000 students from the rest of the UK to study in Scotland. That is a significant number of students, it has been a pretty stable number of students and it has only stayed stable because we have managed to maintain a level playing field. We were given legal advice that this was the only legal way to do it—that quotas would not be acceptable.
Lord Forsyth of Drumlean
Did the noble Lord think of looking at what happens in Ireland? Ireland has free tuition fees; students cross the border from Northern Ireland to attend Irish universities and are treated in exactly the same way. What is the difficulty with replicating exactly that with Scotland?
Lord Stephen
I can only repeat that we were given very clear legal advice that that would not be possible. As I understand it, that was the best legal advice of the UK Civil Service. If that advice has changed, I am sure that Ministers in both London and Scotland would be interested to receive it.
Lord Browne of Ladyton
That is the point: it has got worse. It has got worse now after 11 years and the answer appears to be that we will impose a solution by amending the Scotland Bill because we have the Scotland Bill before us. The noble Lord, Lord Forsyth, shakes his head. I am sure that is not what he intends but that is what we are doing. From what I can gather having listened carefully to what noble Lords have contributed, those who were involved in decision-making and those who have been party to the process, we are doing this without any attempt to try to get what a number of noble Lords, including the noble Lord, Lord Sutherland, the noble Lord, Lord Empey, and others, have called for, which is a discussion across the United Kingdom to see if we can resolve this issue. Everyone’s briefing appears to be that we have been put into this position because of the activities of others and these are the consequences.
Lord Forsyth of Drumlean
The noble Lord, Lord Stephen, made an important point in his speech which I do not think is appreciated. We have been using the term fees but there are two issues here: one is fees and the other is the teaching grant. The fees have been of the order of £1,800 per head; the teaching grant has been £5,800. I understand the noble Lord’s problem in that he feels that his colleagues may have played a part, but when the noble Lord, Lord Stephen, and his Labour colleagues decided on this, the issue was the fees of £1,800. The £5,800 per place taken by rest of UK students has been paid every year up until now. It is only next year that that money is being taken away. That is the £28 million that the noble Lord, Lord Sutherland, is discussing.
The Scottish Government have changed the position and the numbers are very much larger. They have used opportunistically the position where students are going to have to pay high fees in England to turn the rest of the UK students into a cash cow for the universities. That is where the change has occurred and why my noble friend Lord Steel says it has got much worse.
Lord Browne of Ladyton
I appreciate that it has got much worse but the catalyst was a similar action by the coalition Government in that in England they transferred the burden from the public purse to the student. It was a similar action. This is not the place to debate whether student fees in a particular place are right. In the context of devolution, the debate is about whether it is appropriate for your Lordships’ House to impose on the Scottish Parliament an obligation, or a restriction, on a power that they have been exercising in a particular way for the best part of 10 years, when no attempt has been made to have a serious cross-UK discussion about the situation to see whether it can be resolved.
Lord Wallace of Tankerness
My Lords, I am afraid that I do not have the figures for each university institution. One does not really know until the applications are in and turned into acceptances. However, I hope that I have indicated that the average will be less in Scotland, taking into account bursaries. It is also important to point out that the United Kingdom Government provide support to English students. Some may say that it is more generous than the support provided to Scottish students by the Scottish Government in terms of living support. In that situation, English students are entitled to a loan for the full cost of their tuition fees, regardless of where in the United Kingdom they study. This loan is not repayable until students have left university and are earning over £21,000, and even then, at only 9 per cent of earnings over £21,000.
To help with living costs, English students are also entitled to a maintenance loan of up to £5,500 and a grant of up to £3,250. All students are entitled to a loan of at least £3,575 regardless of their household income; and English students will receive a larger amount of maintenance grant compared to Scottish students with the same household income. So if one accepts my noble friend’s amendment in terms of fees, the concern would be that you can equalise fees, but would still have a considerable disparity in student finance and funding. That is because of the more generous arrangements that the United Kingdom Government have made for English students as compared with the arrangements the Scottish Government have made for Scottish students.
My noble friend Lord Forsyth said that students from England would be burdened by substantial debts because they came to a Scottish university. However, the truth is that they would have no greater debt—and arguably a lesser debt—coming to a Scottish university than they would if they went to one in England. That is a relevant point. The noble Lord, Lord Sutherland, acknowledged the fact that bursaries had been made available.
We have tried to look at the possible outcomes of my noble friend’s amendment and we have identified three. First, Scottish universities could begin charging tuition fees to European Union students. We believe that this would be a breach of European Union law and could place the United Kingdom, as a member state, in danger of infraction proceedings. Secondly, Scottish universities could charge Scottish students and therefore also EU students, tuition fees. Thirdly, Scottish universities could stop charging tuition fees to students from the rest of the United Kingdom.
Lord Wallace of Tankerness
My noble friend has indicated which one of the three he favours. I do not think that anyone has actually suggested that we breach European Union law, although the noble Lord, Lord Empey, said that at the heart of that is where the problem lies. If one accepts a devolution settlement across the United Kingdom, it will produce different outcomes in different places.
Lord Wallace of Tankerness
My Lords, I hope that I represented what the noble Lord said, that that is the point, and that is why there is such concern. It is a point that my noble friend Lord Stephen made with regard to the strong misgivings that the Scottish Executive had back in 2000 in having to go down this course. It had to acknowledge that if we went down this course of free tuition fees for Scottish-domiciled students attending Scottish universities, the consequence would be that students from European Union countries attending Scottish universities would have to be treated on the same basis. In Committee, I said that I was then a Member of the Scottish Government and that although it was not something we particularly wanted to do, it was a consequence that we had to accept, however reluctantly, if we wished to bring in a policy of free tuition for Scottish-domiciled students.
I indicated that I am more than willing to look at whether there is a way of resolving this at a European Union level but I do not wish to mislead the noble Lord or the House into believing that there is a realistic prospect of that happening, certainly before Third Reading. It is something that is so deep within the relevant directive that it would be a significant mountain to climb—although I know my noble friend Lord Forsyth is quite good at climbing significant mountains.
Lord Wallace of Tankerness
My Lords, I am not sure that I follow that. What about the consistency of Mr Salmond’s position? I have to answer for a number of things in your Lordships’ House but, fortunately, I do not have to answer for Mr Salmond.
I agree with the comment that the noble Lord, Lord Empey, has encapsulated what the problem is. There are differential solutions around the United Kingdom—Northern Ireland charges £9,000—so simply to adopt this amendment would not solve the problem across the country. I do not believe that the Bill is the right place to address this. I have indicated that we are prepared to look at the European Union dimension and that we are more than willing to engage with the different Administrations. I just do not want to suggest to your Lordships’ House that this matter can be resolved easily; it would be wrong to suggest that. Even if one does not accept the word “tsunami”, the consequences, which could include a complete disruption of the Scottish higher education system, are sufficiently uncertain for it not to be a risk that we can take. Even allowing for one year’s grace, the problems would still arise in subsequent years. Therefore, I urge my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
My Lords, I am most grateful to everyone who has spoken in a very interesting debate. Given the lateness of the hour, I am sure noble Lords do not want me to respond to all the points or to repeat any of the arguments. I am very impressed by the argument from the Labour Party’s Front Bench that if something has been going on for 10 years, you should keep it. That seems a very conservative point of view to me.
In all the arguments about the practicalities and difficulties, all of which can be addressed and overcome, the overriding issue here is one of fairness. Why did I table this amendment? I spent a week at St Andrews. I went there nearly 40 years ago and I have to say that the students now are much harder working and much more focused than they were in my day. They are absolutely outraged by what is happening to them. Those students have a much tougher time ahead of them than any of us in this House had when we left university. We owe it to them to address this problem.
I was not sure whether I would have to press this matter to a vote tonight. However, I have to say to my noble and learned friend that we debated this in Committee, when I urged him to raise it with the Prime Minister and his colleagues. Perhaps this was said in confidence and I should not repeat it, but one of his ministerial colleagues in the Scottish Office called me today to say, “How can we help you with the Scotland Bill?”. I said, “You can help me by accepting my amendment, or at least giving some commitment. What is your position on student fees?”. He said, “We’re waiting to see what the strength of opinion is”. On that basis, I beg leave to test the opinion of the House.
Baroness Deech
My Lords, I suggest that the valuable time of the House would be better used by allowing me to have my dinner break debate and then using such time as is left at noble Lords’ discretion.
Lord Forsyth of Drumlean
My Lords, I certainly do not want to impose on the patience of the noble Baroness, Lady Deech. I must say to my noble friend the Chief Whip that her treatment of Members of this House is becoming very difficult to defend. I watch noble Lords’ facial expressions. We were promised a full day on Report after Committee finished in the middle of last week. We had to struggle to table amendments. We were promised a full day today and a full day on Wednesday.
The next amendment, Amendment 2, is mine, which I am expected to speak to at 10.20 pm. If we are to get to Amendment 26, we will be here until the early hours of the morning. There is plenty of time on Wednesday to debate these matters, which are serious matters and deserve to be properly debated. It is true that we had a long debate on the previous set of amendments, but that was because many Members who had not been following our proceedings came in to speak because it affects their interests all over the United Kingdom. My noble friend is treating us very harshly indeed, and I do not believe that that is the best way to get the Government’s business on to the statute book.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(12 years, 8 months ago)
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Lord Forsyth of Drumlean
My Lords, I thank my noble friend Lord Wallace of Tankerness for the Written Statement and for circulating the copy of the letter from the Secretary of State. However, without being churlish, I should like to complain in the strongest possible terms about the way in which this legislation is being handled. We agreed to defer the consideration of those parts of the Bill which relate to referendum amendments until after the consultation process had been completed. Your Lordships will recall that we were considering the Bill in Committee when, out of the blue, came the consultation paper, to which responses were required by 9 March. Therefore, we agreed to consider the Bill so that we would be able to debate the issues arising from the referendum on independence with the knowledge of what had happened during the consultation process. As a result of that, the Bill, although it has been before Parliament for well over a year, is being considered right at the end of the Session, so we also agreed that the normal period between Committee stage and Report stage would be truncated.
This afternoon, we are now faced with a two-page letter from the Secretary of State, which tells us very little about the consultation paper but tells us, as my noble friend has just said, that,
“tomorrow’s debate in the House of Lords”—
that is today’s debate—
“is as well informed as possible, with the need to provide Parliament with a full and detailed analysis of the consultation in due course”.
When I was a Minister, “in due course” meant six months. We shall have to consider the Report stage of this Bill on Monday and Wednesday and, therefore, the only opportunity that we have to table amendments which relate to the first parts of the Bill is tomorrow. There is absolutely no time for us to take account of the consultation. I very much hope that my noble friend will impress on his colleague, the Secretary of State for Scotland, that it really is unacceptable that we should go into Report stage on Monday without a full analysis and full information relating to the consultation process and an indication of where the Government stand on this. To add a little zest to that, perhaps I may give notice that, in the absence of that undertaking, I will table a Motion for Monday to provide for that.
I turn to my second point which relates to something that is quite unacceptable. I am not being critical here of my noble friend as I know he is the messenger in this respect—I should have said my noble and learned friend; indeed, I may have played some small part in that, but that is another story—and I realise that he is taking the Bill through the House with great courtesy and skill. However, in earlier consideration of these matters, when we raised the issue of legislative consent and whether the Scottish Parliament was giving legislative consent, we were not informed of what we are now informed of: that the Government have done a deal with the Scottish Government, that the concessions made are very extensive, and that they relate to this Bill. Again, we are being told that amendments will be tabled by the Government. Presumably, these amendments will be tabled tomorrow and, therefore, there will little opportunity for us to consider them. However, I have taken the measure of placing a new amendment on the Marshalled List for today which will give us an opportunity to discuss at least some of the issues set out in the Written Ministerial Statement to which my noble and learned friend referred.
In short, this is a major constitutional Bill which has huge implications for people in Scotland and huge implications for people in the rest of the United Kingdom. The way in which the parliamentary process has been handled has limited our opportunity. I have to say to my noble and learned friend that his right honourable friend has treated this House with a degree of contempt. He knew that we were delaying these proceedings to deal with the consultation process, and to give us such a cursory analysis of the consultation, at the very last minute, at 11 o’clock on the day, makes it impossible for us to have a fully informed debate. Therefore, I am not going to spend any time this afternoon discussing the referendum issues. I shall leave that until Monday. Furthermore, I was told at lunchtime today that on Monday there is to be new business which will be tabled to be discussed before the Scotland Bill, so once again our time for consideration of the Bill is being curtailed.
The behaviour of Ministers towards this House is one of the most persuasive arguments I have ever seen for devolution. We are not giving the proper consideration that we should give to a major constitutional Bill with enormous implications.
Lord Foulkes of Cumnock
I understand the noble Lord’s frustration about the whole process and the way it has been dealt with. The noble Earl, Lord Caithness, makes a very good point, which others made earlier, about the time between Committee and Report. The noble Lord, Lord Forsyth, also made that point effectively.
I think we should absolve the noble and learned Lord, Lord Wallace of Tankerness, of blame in relation to this. He has been faced with great difficulties from a number of sources. I was going to include the noble Lord, Lord Forsyth as one of the people who created some difficulty for him, but I will just put that to one side for a minute. The noble Lord has had to labour with a Cabinet which has only recently begun to realise some of the implications of Scottish independence and what it might mean—to our defence policy and to a range of other things—if it were to go ahead. It has taken some time for it to realise the enormity of the possibility of Scotland seceding from the rest of the United Kingdom, and that is something that the noble and learned Lord, Lord Wallace, has had to deal with. He has also had to deal with a very difficult negotiating body in the Scottish Executive, and its leader in particular. Driving a bargain with it is not easy.
We should consider that earlier this week—and I hope I am not giving any secrets away—we may not have had even this letter and the Statement today if it had not been for the intervention of the noble and learned Lord, Lord Wallace of Tankerness. Admittedly, he was under pressure from the Opposition—both the Front and Back Benches—and no doubt from the noble Lord, Lord Forsyth, as well, but it is to his credit that he got us the Statement. Otherwise we would really have been dealing with it in the dark.
Lord Forsyth of Drumlean
I am most grateful to the noble Lord. I have no complaint about the noble and learned Lord, Lord Wallace, but I do not know what the noble Lord thinks he has. He has a letter from the Secretary of State that states that his preferred solution, which is to use the existing Scotland Act to provide for a referendum, was supported by a large number of people and that he is hopeful that he can reach agreement with the Scottish Government. Frankly, we have known this for some time. I should like to know what the numbers were, what people said and what the Government’s attitude is. What is the point of us debating these matters if we do not know the Government’s policy? This has nothing to do with the Cabinet; it is about the conduct of business in Parliament, and we are being short-changed.
Lord Foulkes of Cumnock
That is a point on which I agree with the noble Lord, Lord Forsyth. Indeed, I have a Question down for next Monday asking when the result of the consultation will be published. I had expected it to be published before now, and certainly for this debate—and, if not, at least for Monday’s debate. However, we also have the information contained in the Statement made today by the Secretary of State. It makes substantial progress—we will discuss this later—in its reference to transferring tax and borrowing powers, ensuring that the new borrowing regime is sustainable and securing further devolution in future.
As someone who favours devolution, I find all these moves very positive. It is very encouraging to see that agreement has been reached. It is also very helpful to have this Statement so that our debate this afternoon can be informed by the details of the agreement that has been reached. I share with the noble Lord, Lord Forsyth, some reservations about the general way in which the Bill has been dealt with, but in the past few days—in particular, thanks to the noble and learned Lord, Lord Wallace—we have been helped to make the debate better informed and more accessible.
Lord Wallace of Tankerness
My Lords, I think I might deal with the final comment made by the noble Lord, Lord Browne. I acknowledge the comments that have been made not just about this Bill but about the general timetable, but I hope that noble Lords who have taken part in our debates on many amendments to this Bill feel that we have had constructive debates. Almost without exception, the amendments that have been tabled have been pertinent and have done what this House does—properly scrutinise—and the Bill is the better for that. Although, as the noble Lord, Lord Stoddart, pointed out, we sat until 10.41 pm last Thursday, even in the final three-quarters of an hour we had some important debates. Although we had been sitting for some time, some important and thoughtful contributions were made.
On the point about the Written Ministerial Statement paving the way to a legislative consent Motion, the noble Lord, Lord Browne, fairly described the situation as he understood it. When we debated this before moving into Committee last Thursday, I indicated to your Lordship’ House, not for the first time, that work, negotiations and discussions were going on between the Scottish Government and the United Kingdom Government, and that we were hopeful that they would come to a conclusion. On that occasion, I think I said that I hoped that the House, before moving to Report, would have an outcome to these negotiations. I thought that it was important, if it was at all possible, for that Written Ministerial Statement to be available to your Lordships before we met today. I am pleased that in the event that proved to be possible.
There was an encouragingly wide response to the consultation. We received just under 3,000 responses, including many replies from members of the public living in Scotland and beyond. There were contributions from businesses, academics, political parties, trade unions and many others across civic Scotland. A number of these matters will be debated when we move into Committee, but I can confirm that the Government’s key proposal in the consultation was that the referendum should be legal, fair and decisive.
In order to provide a legal referendum, we set out our view that a Section 30 order should be agreed to devolve to the Scottish Parliament the power to legislate for a referendum. Initial analysis of the responses indicates clear support for that proposal. A significant majority of those who responded to this issue agreed that powers to hold a referendum should be devolved to the Scottish Parliament. Of these, the great majority supported a Section 30 order.
However, analysis of any consultation is not just a simple matter of counting responses, so I am pleased that our preference for agreeing a Section 30 order was endorsed by a number of constitutional experts, including Matt Qvortrup, Adam Tomkins and Alan Trench, as well as knowledgeable organisations such as the Law Society of Scotland, the Royal Society of Edinburgh and the British Academy.
The fact that it is not just simply a numbers question was highlighted by the point made by the noble Lord, Lord Browne, who picked out a point in the response from Professor Tomkins on the Electoral Commission and the question. There were a number of substantially written points, although obviously not 3,000. We want to make sure that when we bring forward a report—my understanding is that because the original consultation was a command document, any report has to go through the process of becoming a Command Paper—we do proper justice to the quality of the responses that we received.
Obviously, we will be able to say more in the debates. Nevertheless, it is possible to give some clear indication as to where the balance of opinion lies in response to a number of the detailed points—for example, on whether there should be one question or two, and on the timing; clearly, considerably more people want it sooner rather than later—and to indicate some of the specific points made by a number of leading experts.
I hear what my noble friend Lord Forsyth says about today’s debate and any amendments that he might wish to table for Report. The noble Lords, Lord Foulkes and Lord Browne, have acknowledged that we have tried to structure a debate today on the referendums in a way that is to the benefit of the Committee. After the appropriate amendment has been moved, I wish to indicate the Government’s position by saying something about the consultation. I shall then listen to comments from noble Lords and respond at the end of the debate.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend. Given that Section 30 is the Government’s preferred route forward, and given that the consultation process is overwhelmingly in support of that—that is what we are being told—is it the Government’s intention to proceed on that basis? As that basis requires the agreement of the Scottish Parliament, is it my noble and learned friend’s intention to bring forward some other Bill in the next Session of Parliament to deal with the referendum issue? It is clear that there will be no time to do this with the Scotland Bill.
Lord Wallace of Tankerness
My noble friend is right to say that a Section 30 order is the Government’s preferred route and that it is our policy to negotiate an agreement to that end. However, by the very nature of a Section 30 order, it would not be done through primary legislation. Such an order requires the consent of both Houses of Parliament and the Scottish Parliament before being presented to Her Majesty as an Order in Council for approval. That position has received considerable support. I will certainly endeavour to see how many more of the numbers around that particular point can be put in the public domain so that they can be number-crunched before Monday. I will also ensure that my noble friend’s comments on this are drawn to the attention of my honourable friend the Secretary of State. However, from what we have been able to digest, the clear majority of support in the consultation is for that process.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend, but I am actually anxious to save the Committee time. If the position is that the Government are planning to proceed on the basis of a Section 30 order, having had the consultation, and if that needs to be negotiated with the Scottish Government, and if Report, which will be the last opportunity to table amendments, is taken on Monday and Wednesday of next week, then to all intents and purposes the possibility of using the Scotland Bill as a legislative vehicle to provide for an independence referendum that would be monitored and administered by the Electoral Commission with a single question has gone. The Minister appears to be saying that he will proceed on the basis of a Section 30 order, but if he is not successful in that, presumably another Bill will be required in the next Session of Parliament. Is that not right?
Lord Wallace of Tankerness
I ask my noble friend to forgive me if I have misunderstood or misinterpreted what he said. A Section 30 order can take into account issues such as the use of the Electoral Commission. It can also take timing into account, as it can on the matter of whether there is one question or more. These are the things that we will seek to negotiate in a Section 30 order.
“( ) Section 28 shall not come into force until 60 days after the Secretary of State has laid before both Houses of Parliament a report on the impact of the provisions of that section on the financial privileges of the House of Commons.”
Lord Forsyth of Drumlean
I am sorry that my noble friend Lord Sewel is not here. I beg your Lordships’ pardon. I mean my noble friend Lord Sassoon. It was a Freudian slip. The noble Lord, Lord Sewel, will be forever associated in my mind with the Scotland Bill because he, of course, was the midwife of the legislation.
I am sorry that my noble friend Lord Sassoon is not with us because this amendment relates to the extraordinary revelations that we had at some stage during our 10-hour Sitting on Thursday about how the tax-raising powers of the Scottish Parliament would operate. I see that the noble Lord, Lord Kerr, is in his place. I have always held him in the highest regard. I first came across him when he used to guide us through UKREP in the European Union negotiations on the social chapter. He is not someone who is easily lost to detail. He expressed a surprise that I and lots of people felt. I am of course not a supporter but, as he indicated when we discussed this before, the whole idea of giving the Scottish Parliament a tax-raising power to set the Scottish income tax means that part of the block that has hitherto been determined by the Barnett formula would have to be raised in income tax. If the Scottish Parliament wished to raise more, it would have to raise the Scottish rate of income tax.
Lord Wallace of Tankerness
I might have got this wrong but is Amendment 74B not about the privileges of the House of Commons? At the moment, is my noble friend limbering up to speak to Amendment 74C? I apologise if I have got that wrong.
Lord Forsyth of Drumlean
My noble and learned friend is absolutely right. Amendment 74B is indeed about the impact on the privileges of the House of Commons. Everything that I said can relate to that if I think very carefully on my feet. Amendment 74B relates to the previous debate that we also had with my noble friend Lord Sassoon about enabling new taxes to be created in Scotland by Order in Council. That related to new Section 80B created in Clause 28, which is the power to add new, devolved taxes. It says:
“Her Majesty may by Order in Council amend this Part so as to … specify, as an additional devolved tax, a tax of any description”.
I cannot think of an example since ship-money where it has been possible by Order in Council to create a new tax. We have very particular procedures for creating new taxes. The Finance Bill right up until, I think, 1969 had to be considered on the Floor of the House of Commons in Committee. Special rules apply to the conduct of the Finance Bill, including—still, I think—that it is not subject to guillotine. The noble Lord, Lord McAvoy, would be able to help me with that. I certainly think that it is not subject to a guillotine in Committee. The Chancellor of the Exchequer has a leeway, given to no other Minister in the Government, to have as big a Bill and as much time as required. That is because the Finance Bill is central to the whole nature of Parliament, which is about voting and raising means of supply.
The particular innovation in this Bill enables a completely new tax to be created. Mr Alex Salmond might decide he wants a window tax or a tax on landed estates or our local income to finance local government. All that is required is that an Order in Council is approved by both Houses of Parliament. As has already been pointed out, Orders in Council are not normally able to be amended and are not normally voted against in this House. I am most grateful to my noble and learned friend for telling me which amendment I am speaking to. I have tabled this amendment because I cannot understand how, given the position of this House in respect of taxation, it can be right that first, new taxes can be created by order in the other place and, secondly, this House should be involved in consideration of the imposition of new taxes by order. That seems to impact upon the privileges of the House of Commons.
In truth, however, this amendment is simply another opportunity to raise a serious constitutional innovation, which creates very unfortunate precedents. I am hoping that even at this late stage I can impress upon my noble and learned friend that the explanation we were given for these powers being contained in the Bill, when we considered them earlier, was that the Calman commission had recommended that there should be powers in the Bill to provide for additional, specified taxes. This Bill does not provide for additional, specified taxes; it gives a completely open-ended power.
We have just received, as was referred to earlier, an indication of the agreement that has been made in order to get Alex Salmond’s permission for this House to continue with the Bill. This is the deal that the Government have entered into. It provides for the inclusion of some new taxes—some of which we have already debated, such as the aggregates levy. Why can my noble and learned friend not amend the Bill on Report and make provision for those specified taxes to be included? I do not like the order-making power. He could put that provision into the Bill and it could be approved, then it would go back to the House of Commons and would be approved there. Why can we not have a list of specified taxes which are to be included rather than this open-ended and highly undesirable procedure, which I believe challenges the very basis of this House? I beg to move.
Lord Browne of Ladyton
My Lords, the amendment moved by the noble Lord, Lord Forsyth, seeks by very specific provision to restrict the operation of Section 28 of the Act. We on these Benches are broadly content with the Act, but the noble and learned Lord who speaks for the Government on these matters will, I hope, remember that we moved an amendment seeking to put into the Bill at least a mechanism, which would lead further into secondary legislation, to have some reflection of the criteria that need to be satisfied before either a new or an existing tax could be considered appropriate to be devolved. In response to that amendment, the Government’s position was that those criteria were already set out in a White Paper predating the publication of the Bill.
Our position on these Benches is still similar to that of the noble Lord, Lord Forsyth. It would be better if there were some restriction in the operation of Section 28—or, at least, some shape to how it would operate—by reflecting through primary legislation into secondary legislation the criteria that need to be satisfied, since it appears that the Government have a clear and advanced view of what those criteria will be. This is an issue that we intended to return to on Report, having looked at the drafting of an appropriate amendment. I gave notice at the conclusion of the debate in Committee on Clause 28 that that is what we intended to do. To that extent, we are in agreement with the noble Lord, Lord Forsyth, and I think also with the mood of the House when we debated this provision.
Reflecting on the specific terms of the agreement with the Scottish Government, it appears that the Government’s position on the aggregates levy is now that it will be devolved, as I understand it, not if but when the issues which are preventing its devolution are resolved. Up until now, I had thought that the conditionality in relation to the devolution of the aggregates levy was in the control of the European court. It now appears, though, that the Government’s confidence that these issues can be resolved is such that they were able to agree with the Scottish Government that the aggregates levy will be devolved when that resolution takes place and these issues are resolved.
If that is the case then I agree, with regard to that tax, that it would be more appropriate to have in the Bill a provision that could be activated and brought into force at that point, and that this House and the other place would have an opportunity to consider the implications otherwise for the devolution of the aggregates levy in detail. When we debated that issue, if I remember correctly, the noble Lord, Lord Forsyth, proposed a detailed amendment covering the aggregates levy, and the noble Lord, Lord Sassoon, told him that technically it was broadly correct. I may be misquoting his exact words, but he said that the noble Lord had made a good job of it and that it was fit for purpose. If that is right, at least the Government are in a position where most of the work has been done. That may need to be tweaked, and I dare say that the Government would not want to accept someone else’s amendment wholesale and may want to change it slightly, but we could be in a position on Report to have a debate that would do two things: satisfy this House’s desire to have a debate about the detail of that tax and its devolutionary implications, and immediately show good faith to the Scottish Government because this would put a provision in the Bill that could be activated to devolve the tax.
I turn to the amendment. One of the coincidences of this amendment coming forward, or it may be not entirely a coincidence, is that this House has been exercised by the issue of financial privilege in some detail in committees, briefings, debates and discussion since the House of Commons recently claimed financial privilege in respect of Lords amendments to the Welfare Reform Bill. When I saw the amendment of the noble Lord, Lord Forsyth, I was not clear exactly what he was getting at, but there was no shortage of briefing available to me about financial privilege.
Lord Forsyth of Drumlean
I was simply trying to find a way of raising the subject again. There was no deeper meaning behind it.
Lord Browne of Ladyton
I do not know whether I am grateful to the noble Lord for that, because I had a very clever ending to this part of my contribution and he has prevented me moving towards it as quickly as I wanted to.
I have never been able to do this before in a debate: I intend to quote the Clerk of the Parliaments. There is a Library note on the issue of financial privilege; it goes into this issue in some detail, and only our Parliament could produce something like this that was so interesting and esoteric. Paragraph 18 of this report says:
“In conclusion, it may be worth making two points … First, until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.
It seems, and I am grateful for this, that this is the complete answer to the noble Lord’s amendment. It would be ill advised of this House, given that it has that power, to seek for the first time to try to control it with legislation at its own hand. I cannot, as I am sure the noble Lord will be devastated to hear, support his amendment in these circumstances.
Lord Steel of Aikwood
My Lords, my noble friend Lord Forsyth has a technical point about taxation through Orders in Council, but I want to come back to this basic point regarding the Bill: Section 28 talks in bold type about the power to add new devolved taxes. That is something to which my noble friend is opposed; he does not want the Scottish Parliament to have the power to create more taxes, but I do. I think I am right in saying that the Calman commission also wanted to give the Scottish Parliament the power to add more taxes. Going back even to the referendum that we had, I know that my noble friend keeps saying that there is a difference between varying taxes and adding new ones, but that is too subtle a distinction.
Lord Forsyth of Drumlean
There are three members of the Calman commission here. I am sure that my noble friend Lord Selkirk of Douglas will be able to confirm this. I think the Calman commission said that the Scottish Parliament should have the power to add specified taxes. I am not against the Bill allowing for specified taxes; I am against it being open-ended and subject to that procedure.
Lord Steel of Aikwood
That is where we differ. I am not against the Scottish Parliament having such powers. I want the Bill to be stronger than it is. We are on a constant road on devolution. I still believe that we want to get to the point where the Scottish Parliament has responsibility for raising the money that it spends on devolved matters. The Bill does not go that far but at least it moves in that direction.
I give the Committee a specific example. My noble friend keeps talking about a window tax. Nobody in their right mind is contemplating introducing a window tax in Scotland; not even Mr Salmond has suggested that. However, we used to have a dog licence fee in this country. It was abolished some years ago because it reduced to 37.5p. It was collected by local authorities and it cost so much to collect that it was not worth having.
Lord Steel of Aikwood
My noble friend mutters that it was not a tax. However, I am saying that it could be a tax. There is no reason why the Scottish Parliament should not decide, as a matter of good policy, that ownership of dogs, which can be a confounded nuisance in cities and the countryside, should be subject to tax. That is a perfectly sensible proposition and there is no reason why the Scottish Parliament should not decide that it is one way of adding to its tax take and finances. I am totally opposed to the amendment that my noble friend is pursuing. He is making a good case by trying to undermine the basic purpose of the Bill, while I want the Bill to go further than it does.
Lord Wallace of Tankerness
My Lords, my noble friend Lord Forsyth indicated that this amendment was a hook on which to hang a wider debate. I listened to the debate on Clause 28, to which my noble friend Lord Sassoon responded and in which the noble Lord, Lord Forsyth, made a number of points. He raised the responsibilities and privileges of the respective Houses of Parliament. The noble Lord, Lord Browne, has given a very clear answer on that. It is also important to point out that our role is in relation to a constitutional question: should the Scottish Parliament have responsibility for a particular tax, or should it remain reserved? It is not about how a tax should be structured, who should have to pay it and exemptions to it. That would all have to be set out in primary legislation by the Scottish Parliament, should a tax be devolved.
I am sure it is accepted on all sides of the House that the question of what should be devolved to the Scottish Parliament is an important constitutional issue. I rather think that if it had been suggested that the House of Lords should not express a view on a power such as that contained in Clause 28, I might be in greater difficulty in trying to respond to an amendment suggesting that it should. However, I hear what my noble friend says about the tax in relation to Clause 28. I do not want to engage in a rerun of the debate that we had when my noble friend Lord Sassoon was responding, or indeed anticipate a debate which the noble Lord, Lord Browne, has indicated he intends to run when we come to Report. I am sure that there will be ample opportunity to do so.
I say to my noble friend Lord Forsyth that I think there is a genuine misunderstanding between us with regard to what the Calman commission meant when it referred to a specific tax. I think there are three other members of the Calman commission in the Chamber at the moment and I am sure that, if I have this wrong, they will jump up. The Calman commission identified some specific taxes such as an aggregates levy, which has been referred to, air passenger duty, landfill tax and stamp duty land tax. These were specified and specific recommendations were made in respect of them. Paragraphs 3.170 and 3.171 of the Calman commission report give a general background as to why we thought there should be a power to devolve other specific taxes in the future. By that, it was not intended that we should nominate in the commission’s report, or indeed in a Bill, what these specific taxes might be; rather, it concerned the concept of a specific tax as opposed to devolving a general power of taxation to the Scottish Parliament. I think there is perhaps a genuine misunderstanding on what the recommendation intended. I may have a better understanding of what that intention was, having been party to it.
Lord Forsyth of Drumlean
Can my noble and learned friend give us two examples of taxes that might be added using this general power which he could not put on the face of the Bill?
Lord Wallace of Tankerness
My Lords, the point of not putting that on the face of the Bill is to make sure that there is provision for something that might happen in the future. However, one possible tax could be a dog licence tax, which my noble friend Lord Steel mentioned. I wish to make it very clear that it is not the policy of Her Majesty’s Government to have a dog licence tax, nor indeed, the last time I checked, was it the policy of the Scottish Liberal Democrats. I hope I will not embarrass my noble friend Lord Steel by what I am about to say but I remember that, in an election when I was leader of the Scottish Liberal Democrats—it must have been the 1999 Scottish election—and my noble friend was a candidate in Lothian, he announced somewhere along the line that he wanted a caravan tax. I had to spend a whole day making it very clear that this was his personal view and not the view of the party. My noble friend seems to be a rich source of potential taxes.
However, one of the taxes that the Calman commission considered was a plastic bag tax, which had arisen in the Scottish Parliament where all sorts of ways had been found to try to see whether it could be brought within competence. That is the context. I hope that before we come back to this matter on Report, my noble friend will look at paragraphs 3.170 and 3.171 and will understand the context in which the recommendation was made.
I may be anticipating the debate we will have next week, but putting criteria on the face of the Bill would undoubtedly give the courts the ability to decide whether they have been met. The question of the extent to which these criteria have been met is, I believe, a political one, and one which Government and Parliament would be best placed to determine when a particular issue presents itself. However, it is clear that we will have an opportunity to return to this so I will not detain your Lordships further. I invite my noble friend to withdraw the amendment.
Lord Forsyth of Drumlean
I have to say to my noble and learned friend that that was a disappointing response. I thought that if I gave him the chance to discuss this important constitutional position again, having thought about the arguments, he would perhaps say that he would narrow the rather wide focus of the Bill. I wonder how the House would react if my right honourable friend’s Budget was implemented with a Finance Bill which said that it would be possible to introduce new taxes by Order in Council, approved by both Houses of Parliament. I think there would be an absolute stampede, yet that is what we are proposing should happen to people in Scotland. Having praised my noble and learned friend, I think that he is just a little bit flippant about this. The reason I brought this issue back was not to waste the time of the House but to underline that something very important is being done here which, as I have said, breaches a principle established in this country after ship money.
Lord Forsyth of Drumlean
And caravans. I do not want to detain the House, but I know that my noble friend Lord Steel got into some difficulty with dogs when he gave the former President Ceausescu a puppy dog following a state visit in 1974. My noble friend gave one of his puppies to Ceausescu. When they had gone shooting, the birds were recovered by children, so my noble friend sent one of his fine Labradors to Ceausescu. Many years later, when the regime collapsed and the press arrived, my noble friend received a call from an outraged journalist who asked, “Did you give this dreadful dictator a dog?”. My noble friend explained that he had done so as a result of a state visit and that it had been a courteous thing to do. The journalist said, “Did you realise that this dog had its own coach, its own servants and a whole palace to live in?”. I say to my noble friend that dogs, politics and tax are best not mixed.
My noble friend suggested a tax on plastic bags. The mind boggles as to how large firms such as Tesco and others would operate if there were different taxes on plastic bags north and south of the border.
Lord Wigley
Is the noble Lord aware that there is a plastic bag tax in Wales?
Lord Forsyth of Drumlean
I rest my case. I was not aware that there was a tax on plastic bags there, but if it is thought to be appropriate to have a power to introduce such a tax, it should be specified in the Bill—not as part of a general power. However, I can see that I am making no progress on this and I therefore beg leave to withdraw the amendment.
“(1A) Notwithstanding any other provision of this section, no provision of section 30 shall come into force until the provisions of that section have been approved in a referendum held in England.”
Lord Forsyth of Drumlean
My Lords, this is the amendment that I was speaking to previously. It is a device that provides for a referendum in England on Scottish income tax powers. I tabled the amendment in order to discuss the letter that my noble friend Lord Sassoon circulated, following our debate on the Bill on 15 March.
I suggest that the English should have a say on this because of the extraordinary revelation in Committee on the position of the Scottish Parliament if a change in taxation policy were to be introduced by the Chancellor of the Exchequer—as has happened today, for example, when he raised to just over £9,000 the allowance before people pay income tax. The no-detriment principle is not in the Bill but has, as I understand it, been agreed between the Government and the Scottish Government, or has been proposed as part of the arrangements. I see that in the Written Statement today concerning the negotiations on legislative consent—which we can debate at a later stage—those arrangements go even further.
The idea is that Scotland would benefit from the reduction in income tax that people paid as a result of the increase in allowances, but that England would send a cheque to compensate for the reduction in the tax revenues in addition. The argument for having the 10p tax is that it will affect only a small proportion—by the way, Ministers keep saying that it is 30 per cent; I think we were told today the precise figure by the Office for Budget Responsibility. Hitherto, the assumption has been that about £4.5 billion would be raised by the 10p rate of income tax and that if the Scottish Parliament wanted to spend more it could put that income tax up. The proposition that, because the 10p rate does not raise £4.5 billion any more because people in Scotland are paying less tax, people in England should have to pay more tax to send an addition to the Barnett formula-determined part of the block seems to me to drive a coach and horses through the whole argument of accountability.
If my amendment were accepted and the proposition was put to people in England by a referendum that the Scottish tax powers should operate in that way, I think that there would be an overwhelming rejection, because it is completely unfair and unworkable and will create great difficulty.
In his letter to me, which has been circulated to Members of the Committee, the noble Lord, Lord Sassoon, goes on to deal with another issue, which is benefits. If, as has happened today, the Chancellor raises the thresholds at which people pay tax, that means that there will be a change in their entitlement to benefit. There is a requirement here for changes in people’s eligibility for benefit and the effect that that has in Scotland to be compensated for by taxpayers in England. In his letter, my noble friend says that I should not be too worried about that because the costs are likely to be low. I hope that this letter will be put in the Library or in a form which people outside the House can access.
In the annexe to the letter, my noble friend sets out a little flowchart, which starts with the Scottish budget being £28 billion and Scottish income tax receipts being £4.8 billion. Then, the Scottish block is adjusted downwards by £4.8 billion to create headroom for the Scottish rate of income tax, which means that the Scottish budget is £28 billion, and the block grant is £23 billion because the Scottish income tax receipts would be £4.8 billion. The UK Government raise the personal allowance UK-wide, estimated by the OBR at £3.5 billion. The OBR forecast of the impact on Scottish income tax receipts is a reduction of £100 million. Therefore, receipts from the Scottish income tax are expected to be reduced to £4.7 billion. Therefore, the Treasury adds £100 million to the Scottish budget to offset the impact of what is called UK policy change and the outcome is that the Scottish Government’s budget remains the same.
This is “Heads you win, tails you win” economics. It is completely unfair. It is just reinstating the block grant. I am no advocate of this policy, but if the Government want to go down this track the sensible thing to do would be to give the Scottish Parliament control over the allowances and the rates. This is nonsense. It also applies to changes in the benefit position, because people’s entitlement to benefit will be altered by their net income. If the Scottish Parliament were to put up tax, which it will certainly have to do, and Scotland becomes the highest-taxed part of the United Kingdom, as it certainly will, that means that people’s entitlement to benefit will increase. The cost of that will fall on the English taxpayer. I raise this because, if my noble friend accepts my amendment, which is to give the people in England a referendum on this scheme, I do not think these proposals will stand the test of time. If, as I suspect, he will not accept my amendment, then I urge him to abandon this ridiculous no-detriment principle. The no-detriment principle is a no-accountability principle. It drives a coach and horses through the whole philosophy and thinking of the Bill. I have no idea where it came from. If he is going to maintain this no-detriment principle, then it ought to be written on the face of the Bill. It should not be the product of a quiet deal that no one knows anything about, which flies in the face of what was said in the manifestos of those parties that committed themselves to introducing the Calman proposals. I beg to move.
Lord Kerr of Kinlochard
My Lords, it is déjà vu all over again. I supported the noble Lord, Lord Forsyth, the last time he raised the matter. Although I do not agree with this amendment, I am very glad he has moved it, because it enables us to discuss it again. I had not understood the no-detriment principle. It was painstakingly explained to me by the Minister and the noble Lord, Lord Sassoon. I have not been favoured with the letter of the noble Lord, Lord Sassoon, so forgive me if I am behind with the debate. As it was explained, it is indeed exactly as the noble Lord, Lord Forsyth, says. However, look at it the other way round. It would be paradoxical if the basic tranche of income tax, before the Scottish tax is added in on top, was reduced. The Scots would receive a cheque from the United Kingdom Exchequer. That seems to be very odd. However it is politically even odder, and possibly unsustainable, if it is the other way around. Supposing Chancellor Balls had decided that we needed a higher level of spending, and therefore a higher level of taxation. The Scots would have to send a cheque and they would have paid the higher level of taxation, so would have had less to devote to the higher spending which the proceeds of the tax would have brought in. I do not understand this no-detriment principle.
I draw from that unsatisfactory example exactly the opposite conclusion from the one the noble Lord, Lord Forsyth, draws. I go with the noble Lord, Lord Steel of Aikwood. It seems that we need more but I apologise to the noble Lord, Lord Forsyth, as he was saying much the same today. The trouble with this Bill is that it is a Sir Clive Bossom Bill. Sir Clive Bossom calls on the leader of his party, then the leader of the Opposition, when he joins the House of Commons. The only sentence he gets out of Mr Churchill is, “Bossom, eh? Neither one thing nor the other”. That is what is wrong with this Bill. It is not actually devolving real accountable taxing authority to the Scots. It is still the block grant system with a little add-on which is presentational rather than substantive. I would much rather see a genuine devolution of taxing power. I would start with indirect taxes. Then you will not have any of the problems of defining who the taxpayer is, residence and so on. I would start at that end. I would concede from this Parliament to the Parliament in Edinburgh much greater power in order to deal with the real deficit, which is the accountability deficit. I accept that as a consequence of that, one would have to have a rather strict control on the macroeconomic effect of a degree of fiscal autonomy, so that we did not see a repetition of what we see in continental Europe right now. I accept that that follows.
However, it would be better to get into that area than to pretend to do devolution of taxation and end up with this rather miserable little measure. I understand its logic; I used to work in the Treasury. It is the logic of the Treasury office of accounts. It is the logic of the public expenditure side of the Treasury. It is a book-keeping logic. However, if you think of its economic effect—if you think of it in economic terms—it is absurd.
Lord Forsyth of Drumlean
Yes, it does. The effect is that the amount of tax that people pay in Scotland will go down. Therefore, if the Scottish Parliament wished to be compensated for the loss, it would put up the tax so that it remained in the same position.
Lord Wallace of Tankerness
This is where there is a misunderstanding. This is about making a shared tax base work in a way that is fair and revenue neutral to both jurisdictions. My noble friend Lord Caithness said that if the Scottish Parliament chose to change the allowances, it should bear the responsibility. The whole point of these proposals is that it cannot change the allowances. The personal allowance is determined by the United Kingdom Government. That is the nature of a shared tax base. The argument is that if that tax base is changed, there ought not to be detriment to the Scottish Parliament.
Lord Wallace of Tankerness
It is very unlikely to happen, but let us say that the personal allowance had gone down rather than up. It would have been a windfall to the Scottish Government. The argument therefore is that on a no-detriment principle, it should operate both ways. I shall come on to explain that.
I shall try to make this as simple as possible, but it is not readily simple. From April 2016, the income tax base in the United Kingdom will be shared between the United Kingdom and Scotland. With 10p from all rates in Scotland expected to yield between £4.3 billion and £5.6 billion over the OBR’s forecast period, the Scottish Government will receive around 3 per cent of UK income tax receipts. The Scottish Government will be responsible for setting their rate of income tax and the United Kingdom Government will be responsible for everything else, including, for example, personal allowances. In such a system, the UK Government must be accountable for decisions that they take on the structure of the tax. Conversely, the Scottish Government must be accountable for the decisions that they take in respect of the rate.
I shall give an example—the example seen in the letter from my noble friend Lord Sassoon, but seen the other way. Last year the United Kingdom Government decided to raise personal allowances from £6,475 to £7,475. This decision cost the United Kingdom Government approximately £3.5 billion across the United Kingdom. Since the proposal in the Bill is to devolve around 3 per cent of income tax, the cost to the UK Exchequer from raising personal allowances would reduce to 97 per cent per cent or around £3.4 billion. The remaining £100 million would fall on the Scottish budget. It would be a cost as a result of a decision for which the Scottish Government were not accountable.
If the Scottish Government had set a budget and a rate of tax and had planned their public expenditure on that basis, and then, some four or five months later, as the result of a decision for which they had no responsibility or accountability, they suddenly found that their budget was £100 million short, the no-detriment principle is intended to make up that difference because it is a decision for which the Scottish Parliament will not have had responsibility. That is why I believe that it is important for accountability, because not to do so means that suddenly a Scottish Government perhaps have to carry the can for particular expenditure to which they were committed but could not longer afford, not through any decision that they had made, but through a decision made by the United Kingdom. The obverse is true; for example, if the Scottish Government get a windfall because the tax base has changed, it is only right that that windfall is recovered by the United Kingdom Government.
Under the no-detriment principle, the UK Government would compensate the Scottish budget for any cost that led to a reduction in the tax, but at the end of the day the cost to the United Kingdom is exactly the same as it would be if this Bill were not implemented—that is, the £3.4 billion that it loses in revenue because of the increase in the personal allowance and the £100 million that it then gives to the Scottish Government.
Lord Forsyth of Drumlean
I am sorry to persist in this; perhaps I am just being thick. To take the example given by the Minister, which is the same example that I tried to give from the flow chart, if the Scottish Government find that their block grant is short of £100 million as a result of the increase in the allowances, that means that the amount that people are paying in tax in Scotland has gone down. Why can the Scottish Government not just use their tax-raising power to get the £100 million back from the people who have benefited? That is how the model is supposed to work.
If the Minister is not happy with that, why does he not go further and give the Scottish Parliament the ability to change the allowances as well as the rates? In those circumstances, if the Chancellor wishes to raise the allowances and the Scottish Government do not, they do not raise the allowances. I am making the case here for more devolution, not less—not on the grounds that I am committed to more devolution but on the grounds that this is a complete dog’s breakfast.
Lord Wallace of Tankerness
My Lords, I cannot accept that last comment, but I can now see where my noble friend is coming from. I welcome anyone who wishes to express the case for going further. Of course, he is well aware that what has been presented to Parliament here is something that was worked on over a long period of time during which a consensus was achieved. There was never likely to be a consensus in favour of devolution of the whole tax base, as opposed to the tax rate.
My noble friend is basically saying that it should never be the case that a change in the tax base—for example, the increase in personal allowances—should benefit taxpayers in Scotland. He is saying that if the UK Government, who are still responsible for a substantial level of services in Scotland, take tax from the Scottish people, the Scottish people should never be allowed to take the kind of benefit that I believe they should—and I think that he once wrote a pamphlet on the benefit of raising the personal threshold—and the Scottish Parliament should raise its rate of tax to account for that. That is not accountability; that is a decision taken by the UK Government to bring benefits right throughout the United Kingdom.
It would seriously undermine the United Kingdom if Scottish taxpayers were not allowed to receive the benefit of a change to the UK tax base. It could mean that the tax change would reduce the amount of money available to the Scottish Government, so that budgetary considerations and calculations that had been put forward and might well have been voted through by Parliament would no longer be sustainable because of a decision taken by a body other than the Scottish Parliament. That is the essence of the no-detriment rule, and something that lies at the heart of the statement of funding policy.
I will read out the statement of funding policy, because the noble Lord, Lord Browne, might find that it echoes the passage from the Holtham commission that he read out. It says:
“Where decisions taken by any of the devolved administrations … have financial implications for departments or agencies of the United Kingdom Government or, alternatively, decisions of United Kingdom departments or agencies lead to additional costs for any of the devolved administrations … the body whose decision leads to the additional cost will meet that cost”.
That is where accountability properly lies.
This is not something new that has suddenly been dreamt up. There are probably people in the House who were involved at the beginning of devolution and this principle has been in the statement of funding policy since then. I believe that it is fair that Governments —be it a UK Government or a Scottish Government—should be accountable for the decisions that they make, but they should not be able to export some of the implications of their decisions on to another Government, who should not be held accountable for the decision of another Government.
Lord Forsyth of Drumlean
My Lords, I have to say that I think this is a complete dog’s breakfast and I agree entirely with the noble Lord, Lord Kerr of Kinlochard. My noble and learned friend has struggled valiantly to try to explain why the Scottish Parliament should not be accountable for a decision made by the Chancellor to change the tax base by altering the allowances. However, he has not dealt with the point made by the noble Lord, Lord Kerr of Kinlochard, about the politics of Scotland having to send a cheque to England, but I thought I would keep off that in case—
Lord Wallace of Tankerness
I hope that I made it clear in my response but I shall repeat the point. This is reciprocal because it goes two ways. If a change to the tax base led to an increase or windfall for the Scottish Parliament, that would be recoverable—not by England but by the United Kingdom Parliament.
Lord Forsyth of Drumlean
Indeed, and I understand that, but I am talking about the politics of it in the context of there perhaps being a higher rate of tax in Scotland. I would not like to be the Minister who had to explain why it was necessary. For example—thank goodness the Chancellor did not do it—let us suppose he had abolished tax relief on higher-income pension contributions. That would create exactly the kind of situation under this odd regime in which the Scottish Government would have to send a cheque to England. My noble and learned friend looks quizzical and perhaps I am wrong, but if the tax relief were removed there would be a windfall benefit for the Scottish Government. The product of a 10p income tax would be less, or are we saying that this would apply only to direct changes to allowances in respect of income tax? If that is the case, surely it would be sensible to allow the Scottish Government to make changes to tax allowances rather than compensate them for the effect of changes. There is an idea that they would be caught midway through a Budget by a sudden change—perhaps the £100 million example given by my noble friend—but, as we have seen today in the reduction in the top rate of tax or the increases in allowances, these are normally planned well in advance. Provision is also made in the Bill for the Scottish Parliament to borrow money and to have access to funds where there are changes.
My noble and learned friend has not dealt with the argument. The simple way to deal with this is as follows. If a change is made to the allowances, the revenue consequences will be that the product of the 10p tax instead of being £4.2 billion or £4.5 billion will be £4.2 billion or £4.4 billion. That £100 million shortfall could easily be recovered by increasing the rate of tax. The Scottish Parliament would not be disadvantaged by that because it would simply have to increase the rate of tax. There might be a problem of timing, but there is a provision for borrowing to deal with it, and that would give direct accountability. I agree that it is messy, but for the life of me I do not understand why we are going on with this exercise where my noble and learned friend will not concede that, rather than have a very complicated provision for tax, it would be better to provide that the Scottish Government are able to change the allowances as well as the rate if the UK Government see this as a great administrative difficulty for them.
My noble and learned friend did not deal in his response with the problems that arise from welfare. As I understand it and as his letter points out, eligibility for benefits will depend on net income. That means that if Scotland, as I suspect it will, becomes the highest taxed part of the United Kingdom, net incomes will be lower and therefore it will be necessary for benefits to be increased. Perhaps my noble and learned friend will help me with this. If, for example, the Scottish rate of income tax was higher and the effect was to reduce net incomes and therefore more would need to be paid in benefits, would the Scottish Government have to send a cheque to the UK Exchequer to deal with the consequences of the fact that in Scotland more people were dependent on benefits? Politically, I think that that, too, would be extremely difficult.
As the noble Lord, Lord Kerr of Kinlochard, has pointed out, the no-detriment principle is basically just trying to replicate the block grant and dress it up as income tax. The consequences will be that everyone in Scotland will end up paying higher income tax than people in England in order to finance a vehicle which does not do what it says on the tin.
Lord Wallace of Tankerness
There is a point that my noble friend is not addressing: no amendment has ever been brought forward to devolve allowances. It would be a major change to make at this stage of the Bill and he has not advanced the idea before but, that apart, it did not commend itself to the Calman commission or to the Government. Is he saying that the United Kingdom Government cannot make changes to a tax allowance which will benefit all taxpayers in the United Kingdom and that, if they do, they will be giving with one hand and the Scottish Parliament will be taking away with the other? That is an untenable position for a unionist to take.
Lord Forsyth of Drumlean
It is not my idea. It is the noble and learned Lord’s idea to introduce a Scottish income tax. We have never had a Scottish income tax. If my noble and learned friend is saying that it is not a good unionist position to have a Scottish income tax along with a UK income tax, I could not agree more. That is what is wrong with the Bill and why I am against it. If you want to go down that road and you have set out the arguments for accountability on that basis, then do it properly and introduce a system that is workable.
Let us leave the issue of allowances. When we have Scottish income tax it will be possible for the Scottish Parliament to set the rate at whatever level it chooses—and not only the basic rate but the intermediate rate and the top rate. Mr Alex Salmond can have a top rate of 60 per cent and a basic rate of 30 per cent if he wants, and you can have a Government in England and the rest of the United Kingdom cutting taxes. Therefore, it is absolutely central to the proposal that there is the possibility—I would say the probability—that people in Scotland will not benefit from wise tax policies such as those pursued by my right honourable friend the Chancellor of the Exchequer today.
When my noble and learned friend says that if you do not have the no-detriment principle people in Scotland will not benefit from increases in the allowances for tax purposes, that is nonsense. It would be up to the Scottish Government. The Scottish Government would find that their block grant was reduced by a set amount, but they could get that set amount by taking the money from the taxpayers in Scotland, who would have benefited from the reduction in the allowances. That is the whole principle. My noble and learned friend shakes his head. The principle is that the Scottish Government are accountable for their spending and they have to raise that money through tax. The change in the allowances means that the tax available to them is less and therefore, if they want to continue the same level of spending, they will have to raise the tax. My noble and learned friend is running away from this because of the administrative difficulties that would be involved in dealing with the allowances.
On the point about there being no amendments on allowing the Scottish Parliament to set the allowances, I shall happily oblige: I shall table one for Monday and we can discuss this again. I shall be interested to hear how someone who is committed to the policy of making the Scottish Parliament accountable can possibly argue against it being able to set the allowances as well as the rates. You would have to have a Scottish allowance, of course, just as you have a Scottish tax, and it would operate in exactly the same way. However, by attacking this principle, my noble and learned friend is attacking the basis of the Bill—and I do so agree with him on that. I beg leave to withdraw the amendment.
“(4A) The following provisions shall not come into force until the Scottish Parliament has passed a legislative consent motion signifying its consent to those provisions—
(a) sections 12 to 14,(b) section 27, and(c) Part 3.(4B) If the Scottish Parliament fails to pass a legislative consent motion under subsection (4A) within two months of the passing of this Act, then the provisions listed in subsection (4A) shall lapse.”
Lord Forsyth of Drumlean
My Lords, I will speak briefly to this amendment, which relates to the Scottish Parliament passing a legislative consent Motion and certain parts of the Bill not being implemented. This has been slightly overtaken by events given the very helpful Statement made by my noble and learned friend. I am concerned about the substance of what has been agreed in return for the legislative consent Motion. This amendment gives us a good opportunity to discuss some of the issues arising from the legislative consent agreement. We are told that the Scottish Parliament will pass the necessary legislative consent today or this week. Perhaps my noble and learned friend can help us on that.
Lord Wallace of Tankerness
As I understand it, the Scottish Parliament has sent its response to its Scotland Bill Committee. In that, it indicated in similar terms to our Written Ministerial Statement what the agreement is. It has tabled or will table a legislative consent Motion on the basis of following on from that agreement. That Motion should certainly be dealt with before our Third Reading but obviously I am not responsible for the timing of debates in the Scottish Parliament.
Lord Forsyth of Drumlean
You have to admire the way that the Scottish Parliament is run. Its committee made 25 major recommendations for changes to this Bill which effectively involve devo-max. They were full fiscal autonomy and a range of other things. Those sat on the table from before Christmas until now. Due to the brilliance of my noble and learned friend, he and his colleagues had a meeting with the First Minister and suddenly everything that the committee said vanished like snow off a dike. We are told that a procedure will be followed that will result in the Scottish Parliament giving agreement. That really is the accountability that we all came to expect from devolution. We have here one man—the First Minister—deciding what happens and everybody else falling into line. Otherwise, it would not be possible to deliver this.
Fortunately, it does not quite work like that in this House. I have a few points to raise on this issue of legislative consent. The first thing we need on the record is the Government’s position on legislative consent. I pressed my noble and learned friend on this before and I hope he will tell us now that he has finished his negotiations. Is the Government’s view that legislative consent is desirable but in the absence of it they will proceed anyway; is there a new constitutional principle that we do not do things without legislative consent; or is the constitutional principle that we try to get legislative consent if it is practical? That is very important because it will impinge on the debates that we are about to have on the referendum, where the Government say that they will proceed by Section 30 but Section 30 requires legislative consent. I want to be absolutely clear where the Government are on the issue of legislative consent. In the absence of legislative consent, would the Government still proceed? That is not a perfect example because of course the referendum issue has nothing to do with the Scottish Parliament as it is a reserved power. In respect of non-reserved powers for the Scottish Parliament, where are we on legislative consent?
I want to pick up one thing from the Statement that my noble and learned friend made today on what has been agreed. That is the first section, which says:
“The Government will ensure that changes in the Scottish Government’s budget are closely linked to the performance of its economy by adjusting Scotland’s budget to reflect new tax powers using the model recommended to the Welsh Assembly in the Holtham Report”.
The noble Lord, Lord Browne, who is a man of considerable ability—as we have discovered in the course of consideration of this Bill, as well as from his previous work—has read the Holtham summary, and I expect that he is as unsure of the meaning of that sentence as I am. What does it mean? Does it mean what we have just been discussing and, if so, why does it say,
“changes in the Scottish Government’s budget”,
as opposed to changes in the Scottish Government’s income? The Scottish Government’s budget is what Alex Salmond dreams up one day and promises the Scottish people, but it has no relation whatever to the Scottish Government’s income, as people are about to discover.
Lord Wallace of Tankerness
They may be very unfair on themselves but officials say, “Blame officials for poor punctuation”. I think I will reserve my position on that. I apologise for forgetting to pick up the point raised by my noble friend. As he and the noble Lord, Lord Kerr, correctly identify, the Statement says that the Government will consider further devolution after a referendum on independence. I believe that that is consistent with the position set out by the Prime Minister and with the evolution of devolution to date. It has involved a careful assessment of the evidence.
One could go back to the constitutional convention or the Calman commission. It has involved consideration of its implications across the United Kingdom—it is important to remember that any devolution has implications for other parts of our United Kingdom—and it has generally proceeded with cross-party agreement. Those are all essential ingredients, perhaps not of porridge oats but for moving forward. The Government are committed to continuing to consider amendments to the devolution settlement on that basis. My party and others are doing their own thinking on what that might be, but, as we have seen to date, any substantial progress has been made on the basis of cross-party agreement. That is important.
I make one further point for clarification. My noble friend the Duke of Montrose is right: the word “modify” means to decrease or extend the subject matter of Schedule 5, and I am advised that the order which I took through the Scottish Parliament with regard to the Arts and Humanities Research Council was indeed a Section 30 order that added something to Schedule 5.
Lord Forsyth of Drumlean
My Lords, we have had an interesting debate. To rescue the Minister, I think that paragraph 3 is headed,
“Further devolution in the future”,
which qualifies the sentence,
“The Government is open to considering what further powers might be devolved after a referendum on independence”.
I think that it clearly means that it is after the referendum.
I noticed that my noble friend did not answer my question when I asked what he could be thinking of, given the scope and nature of the Bill. As I get older, I get more and more interested in gardening. One thing that I have learnt is that it is a big mistake to pull plants up and move them before they have had a chance to settle and put down roots. It seems rather odd that we are discussing a Bill where the tax proposals will not come into effect until 2015-16. The noble Lord, Lord Kerr, wants us to start thinking about further devolution now. If you are going to plant this prickly sort of bush, it is probably a good idea to see whether any flowers are going to appear on it before deciding whether you are going to do more planting. I hope that my noble friend will not be tempted to expand the meaning of that sentence.
Lord Foulkes of Cumnock
My Lords, we now come—at last, some noble Lords may be saying—to what I understand is the first of two substantial debates on the major question of this Bill. It is the one we have been waiting for with great anticipation, holding off until the report of the consultation has been published, on the referendum. I am not going to manage to do it in 140 words, let alone 140 characters, although I can say to my noble friend Lord O’Neill that whole stories, whole sagas, can be written in 140 characters. I will give him just one: Heart of Midlothian two, Hibernian nil. That describes 90 wonderful minutes last Sunday which I am sure he would wish to forget.
However, let us get on to the substantive issue of the evening. We are talking about the future not just of Scotland, but of the whole of the United Kingdom. What happens to Scotland in an independence referendum will have a huge effect on the whole of the United Kingdom, some of the detail of which has not yet been examined. We have started discussing and debating them at last—they are principally some of the effects on Scotland. However, the Joint Committee on the National Security Strategy, for example, only recently started to discuss some of the security implications of an independent Scotland, in relation to the independent deterrent, membership of NATO, and a whole range of other things. There would be huge implications for the whole of the United Kingdom if Scotland was no longer a part of it.
Any referendum, or referenda, should be organised on an agreed basis that we all understand—that the Scottish Parliament and all of its Members understand; that both Houses of this Parliament and all the Members understand; and that the Scottish people understand. The UK consultative document is absolutely right in saying that the three essential elements should be that it must be legal, fair and decisive. First, it must be legal because some people will be predisposed to challenge the basis of a referendum that is not carried out on a legal basis. I cannot say nothing will be open to challenge, but there must be a minimal likelihood of it being challenged. That would be something that would be conducted if not by, then with, the authority of the United Kingdom Parliament.
Secondly, it needs to be fair. That will ensure that all of us will be satisfied that we have had the opportunity of putting our case to the Scottish people fairly. Questions about the timing of the referendum, and the question to be asked—I will come back to that in a moment—are absolutely essential in relation to that. People who seek to choose the timing to make sure that they get a maximum vote for separation are not giving the Scottish people the best opportunity to make a balanced judgment about the referendum. That is clearly the idea of waiting until 2014. The euphoria of the Commonwealth Games, the Ryder Cup, and the anniversary of Bannockburn, will get Scots all fired up, even those from Shetland. I am sure the noble Lord, Lord Lamont, will find a way of coming to a specific amendment in relation to Orkney and Shetland as well.
Of course the timing is also being suggested for 2014 because in the run-up to the United Kingdom election, the SNP wants to try to polarise the debate between a certain kind of Scotland and a politically different United Kingdom, and that would also be to its advantage. I will come back to the question to be asked in a moment.
Thirdly, it has to be decisive. It needs to be clear that the referendum will settle the issue. We know from the experience of Quebec that it may not settle it forever, but it must be settled at least for the foreseeable future. If there is a big enough majority against separation, perhaps it will be forever or at least for our lifetimes, or for a generation.
My Amendment 87 is to hold over provision of this Act until the referendum has taken place. The Amendment 88 tabled by the noble Lord, Lord Forsyth, supported by another former Secretary of State the noble Lord, Lord Lang, and by the noble Earl, Lord Caithness, would have the United Kingdom Government take action to exercise their undoubted right to call a referendum by Order in Council. That is clearly unacceptable to the Scottish Parliament. I would not be averse to it, I have made that clear on a number of occasions. However, on the basis that I suggested earlier—that this whole arrangement needs to be accepted by all the parties involved—we must think carefully before exercising that right.
Lord Forsyth of Drumlean
Is the noble Lord saying what I think he is saying? Is he saying that if we proceeded by using Section 30, and if the Scottish Parliament declined to give consent to that, we should not have a referendum? Then the only alternative would be for the Westminster Parliament to pass the necessary legislation without support. He appears to be ruling that out. I hope he is not.
Lord Forsyth of Drumlean
When my noble and learned friend says that the Government will not be tabling any amendments to the Bill, he is ruling out using the Bill as a vehicle to run a referendum. The Section 30 procedure requires the consent of the Scottish Parliament. In the absence of that consent—perhaps over the issue of whether there should be one question or two—is he prepared to introduce legislation in the next Session to provide for the referendum to be conducted along the lines that the Prime Minister set out in what the noble Lord described as his porridge oats speech?
Lord Wallace of Tankerness
My Lords, my noble friend was right to say that we do not intend to use the Bill as a vehicle for introducing provisions for the referendum. I cannot be clearer than that.
Lord Forsyth of Drumlean
My noble and learned friend was absolutely clear on the point about using the Bill for the referendum. Everyone agrees that the preference has always been to use the Section 30 power, which requires the agreement of the Scottish Parliament. The Prime Minister stated clearly that there would be a referendum; that there would be one question; and that it would be run by the Electoral Commission. In the absence of agreement to that under Section 30, will the Government bring forward in the next Session legislation to give effect to that? If that is their position, I will be happy not to move my amendments and not to waste any more time talking about referenda.
Lord Williamson of Horton
My Lords, I have sat through the three and a half hours of this debate. Fortunately, Hansard records our words but not our accents. If it did, it would have to have a little asterisk against mine because, apart from a very brief intervention by my noble friend Lord Neill, I am the only person with a non-Scottish accent who has participated in the debate.
I shall make one point, but it will be quite short. I thank the Minister for what he said in clarifying the Government’s position. It is extremely important. In so far as conditions are going to be set for the referendum in the way in which it is presented in the Section 30 Order in Council, it is extremely important that when we finalise that position, we still carry the support, trust and confidence of the people of the other countries of the United Kingdom that the referendum will be fairly drawn up and monitored. There is more than one party to this referendum. There are the Scottish people and there are the people of the United Kingdom as a whole, and confidence in the political process is important.
For that reason, I will say briefly that although these issues are going to turn up—as we know now, in the Section 30 Order in Council and not in this Bill—none the less the points that are raised in the amendment moved by the noble Lord, Lord Foulkes, and that also arise in his Amendment 94C are extremely important. I emphasise that it is extremely important that we stand by the points that are set out in these amendments. The first is that we are talking about whether Scotland should become independent of the rest of the United Kingdom. There must be a clear question on the ballot paper and in the order. The referendum must be carried out in accordance with the provisions of the Parliamentary Voting System and Constituencies Act 2011 and the draft must be laid before each House of Parliament. The two further points in Amendment 94C seem to be extremely important. The timing must be made quite clear. It cannot be left ambiguous. The question must be equally explicit. I think that the question that the noble Lord, Lord Foulkes of Cumnock, has put forward in that amendment is excellent.
We need to stick to these points, although I have this terrible feeling, based on a long period in public life, that when we come to negotiations—and there will be negotiations in relation to this Order in Council—gradually a little change will come in. It will not be exactly as it started off, and by the time we get to the end we may find that we are not carrying fully the confidence of all the people of the United Kingdom. Those four points are extremely important to me. They are negotiating points that we need to stick to. We have to be extremely careful that we do not just fade away into something that is much too mushy. We need to stick to the clear points that we have often discussed here. They are extremely valuable and must be carried into the Order in Council.
Lord Forsyth of Drumlean
I shall speak to my Amendment 88, which is part of this group. It may help save your Lordships a little time. I am grateful to my noble friend for the statement that he has just made. As I see it, the position is quite clear: the Government are not going to use this Bill as a vehicle.
I tabled my amendment on 13 September, six months ago. Since then, quite a lot has happened. I tabled it because I thought we needed to resolve once and for all the question of whether Scotland should remain part of the United Kingdom, and I thought that the First Minister would use his period in office to drive a wedge between Scotland and the United Kingdom. Nothing that I have seen in the past six months has done anything other than to consolidate that view. It is therefore very important that we get this matter settled, that we concentrate on whether Scotland wishes to remain part of the United Kingdom, and that issues of devo-max and the rest are kept to one side while we do that.
I entirely agree with the noble Lord, Lord Reid, who intervened twice while the noble Lord, Lord Foulkes, was introducing his amendment to point out that devo-max means creating a federal parliament and an English parliament. He is absolutely right to say that that would need to be subject to approval by the rest of the United Kingdom.
We are concentrating here on how to get the Scottish question resolved one way or the other. Seeing how the noble Lord, Lord Foulkes, has suddenly started speaking to a script, I suspect that there is probably a degree of agreement between the Front Benches on the way forward on this. I hope there is. The noble Lord, Lord Browne, shakes his head, but the noble Lord, Lord Foulkes, was certainly speaking to a script, although after three pages we returned to normal service. I suspect that the three pages may very well reflect the view of the Opposition, but we will hear from the noble Lord, Lord Browne, in due course.
The point is that there is a consensus in this House that we need to have a referendum; it needs to have one question—
Lord Foulkes of Cumnock
I can let the noble Lord, Lord Forsyth, see my script and he will see that it is in my own handwriting and no one else’s.
Lord Forsyth of Drumlean
Yes, I just wondered who dictated it. I am sure it is the noble Lord’s own work; it is just that it is such a change of position in such a short time. We have discussed this ad nauseam and it is perfectly clear that there is agreement in this House that there should be one question and that the referendum should be conducted by the Electoral Commission and no one else.
I like the question that is in the amendment moved by the noble Lord, Lord Foulkes, but I am perfectly content for that question to be determined by the Electoral Commission. That is where we may end up. My preference would be for it to be decided by the Government, but I can see how that would create difficulties. The important point is that this whole process needs to be regulated by the Electoral Commission and needs to be conducted under the rules that have been established in statute for the conduct of referenda. I am very happy not to move my amendment and not to spend any more time talking about referenda in the context of this Bill, because this Bill is clearly not going to be used as the vehicle.
My noble and learned friend has been brilliant in his negotiations with Mr Alex Salmond, but I am not absolutely persuaded that Mr Alex Salmond is going to agree to a Section 30 procedure that meets all the criteria. The point that was made by the noble Lord, Lord Williamson, really needs to be taken into account. We do not want any shilly-shallying or giving way on these important points of substance. This is very important.
Mr Salmond does not want to have a referendum on independence because he knows that he will lose, and I am anxious that my noble and learned friend may be optimistic about reaching agreement. However, given his track record, he may well be able to reach agreement: in which case, fine. If he is not able to reach agreement, we will have to have a referendum Bill in the next Session of Parliament that delivers these things. I regret that, because unless there is agreement between the Front Benches to take this through the House reasonably speedily we will have another six or seven months of arguing about process, about the question and about who should run it, whereas I want the debate to be about what happens to Scotland’s young people, the jobless, our businesses, our defence, people’s pensions, and our country as a United Kingdom.
If we are going to go down this track, I very much hope that the negotiations will not be particularly extended. I believe in competition but, honestly, competition between consultation papers is a bit rich. The Scottish Government’s consultation finishes in May. If this is the route that we are going to go down, let us hope that, at a reasonably early stage in the new Session of Parliament, either we will have reached agreement with the Scottish Government on using Section 30 or the Government will have brought forward a Bill that is taken through both Houses speedily and delivers the opportunity for a decision to be made. I would have preferred it if we had used this Bill to achieve that because we could have got on with it, but given the Government’s Statement and the fact that we have to deal with all amendments by next Wednesday, it is perfectly apparent that that is not going to happen. I am content not to press my amendment.
The Earl of Caithness
My Lords, I have put my name to the amendments tabled by the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth. As my noble friend Lord Forsyth has just said, these amendments went down last year, long before the UK Government sent out their consultation paper, let alone the Scottish Government bothering to send out theirs.
I am not in the least bit fearful of a referendum in Scotland but I am worried about the consequences. The break-up of the United Kingdom at the behest of a minority, which might prejudice the majority, is something of great concern. As the noble Lord, Lord Foulkes, has said, it has huge implications for the rest of the United Kingdom. I am told that when Czechoslovakia divided in 1992, some 30 treaties and 12,000 legal agreements were required. There is going to be a huge amount of work resulting from a decision to have an independent Scotland, if that is the one that is taken.
I hear what noble Lords have been saying about this being a matter for Scotland, and indeed it is, but it is such a big matter that the referendum in Scotland should then be followed by a referendum in the UK. There are huge implications for the rest of the UK; for example, in Brussels, where our ability to get a blocking minority at the Council of Ministers will be altered because the number of votes that we have will be reduced. I spoke about this in an earlier debate. It might very well threaten our permanent seat at the United Nations.
There are a lot of reasons why it is so important that the United Kingdom is kept together, which, if it is broken by a minority, will have huge implications. That is why I have put forward my Amendment 89, which says that the referendum in Scotland should be advisory and could be implemented only if it was agreed in the rest of the United Kingdom. We are sleepwalking into a whole lot of issues that have not been discussed, the implications of which nobody fully understands, and which the vast majority of the United Kingdom will not have a say on.
My Amendment 90 is an amendment to Amendment 88 and says that if the vote in a referendum held in Scotland is for a separate Scotland—I do not say “independent Scotland” because Scotland is about as independent a country as you can get—but that if the people of Orkney and Shetland vote to remain in the United Kingdom, they should be allowed to do so.
The obvious argument in favour of that is the argument that has been expounded about Scotland, which I have just spoken about. Here we have a minority of people in the United Kingdom saying “We want to become separate” or “We could want to become separate”. The rest of the United Kingdom has to accept that, as the noble Lord, Lord Reid, thinks is right. I am saying that if Orkney and Shetland decide that they want to stay in the United Kingdom—although that is not the only alternative for them—their wish should be granted.
When this amendment was put down, it raised a lot of concern from the usual rent-a-quote SNP MSPs who jumped up and down and said, “This is Westminster dictating to us in the far north”. No it is not; it is merely giving a chance for democracy. There is a fear in the far north of the centralisation that has taken place in Edinburgh.
Lord Reid of Cardowan
I would be able to understand that if I knew what devo-max is. I am presupposing that if there is a subsequent discussion on the decision to stay in the United Kingdom, some of it will be on what the vote is actually about. I hate to add pigs and pokes to porridge—enough euphemisms have been used—but one of the problems with devo-max is that, since it affects the relationship between the peoples of the United Kingdom, it would have to go to the peoples of the United Kingdom or their elected representatives. Also, at this stage no one knows what devo-max, devo-plus or any of these topics other than staying in the UK or leaving the UK actually constitutes. How on earth that is put to a referendum is beyond me, and therefore it reinforces the fact that there should be a clear, fair and legal decision on one issue, after which there may or may not be discussions between the representatives of the various peoples about changing that relationship. At that stage, presumably, devo-max may represent what the islands the noble Earl referred to already have or it might refer to something entirely different. Part of the problem is that at the moment we have no idea of what it refers to.
Lord Forsyth of Drumlean
My Lords, the difference is that Guernsey, Jersey and the Isle of Man do not send Members of Parliament to the House of Commons.
The Earl of Mar and Kellie
I suppose I should continue to look for advice: did they? I also note that Jersey, Guernsey and the Isle of Man have almost complete autonomy, including on foreign policy and the Treasury. The only thing they do not provide overall is their own defence.
Lord Browne of Ladyton
I thank my noble friend for his intervention, although I have no idea what the answer is to the question that he asks. We get many amendments that allow us to explore issues that are of less relevance and importance to the people of Scotland, but I certainly welcome amendments that allow us to explore issues that are important. Through their amendments, my noble friend and the noble Lord, Lord Forsyth, have been utterly diligent on this Bill. They deserve a great degree of credit for the amount of work that they have put into preparing amendments, by which they have created opportunities for some very good debates in Committee. They will be a quarry for the future for many good arguments that can be put forward about the positive nature of the United Kingdom.
To go back to my point, the noble and learned Lord says, “Not this Bill”, and I agree. He says that the preferred option is a Section 30 Order in Council, and I agree. The consultation reveals some very good and compelling arguments in some of the responses about why that is the right way to go. I have adopted some of them. The noble Lord, Lord Forsyth, asked the Minister, “What if there is no Section 30? Where does that leave you?”. The noble and learned Lord answered, “If agreement cannot be reached, we need to consider other options”. I understand why that form of words is the most that he can give your Lordships.
Lord Browne of Ladyton
The noble Lord, Lord Forsyth, asks me why. The simple answer is: because he is a government Minister. The noble Lord should know that, and I am sure that he was adept at giving those sorts of answers himself when he was at the Dispatch Box.
Lord Forsyth of Drumlean
I never really felt much constrained by collective responsibility, as the noble Lord will recall. My noble friend Lord Deben is indicating that he agrees, which is a bit alarming. I thought that the noble Lord was going to say that the Minister could not say this because he did not want to put a gun to the Scottish Government’s head, but it is quite important that it is clearly understood that we are determined to resolve this question and that we have the lines that we have discussed. It is also clearly understood—and I understand where the noble Lord is coming from—that we would much prefer to do this on an agreed basis and for the Scottish Parliament to legislate, but at the end of the day this is going to be done.
Lord Browne of Ladyton
I am sure that, from the point of view of the record and those who read it, it is probably better that the noble Lord says this and is not contradicted from the Dispatch Box, rather than that those words be put into the mouth of a Minister. I do not want to go too far down this road.
My point is that there are precious few options anyway. Without persuading, badgering or compelling the noble and learned Lord to go any further than the words that he wants to use, it is clear to me and, I think, to everyone who has heard this debate that the options are limited. Whatever option the Government choose in future if that set of circumstances arises, there will be an opportunity for your Lordships’ House to have a detailed debate on the way in which the referendum is conducted.
That leaves us with the challenge of how we achieve that debate if it is a Section 30 Order in Council. We have been teasing out from the Government some concessions regarding that with proposals that have been made—one from my noble friend Lord Sewel and some from others—about iterations. However, it would be helpful if the noble and learned Lord indicated, perhaps even repeating what he said before, that something will be done to structure a process that allows the content of the order to be debated at some length here and in the other place before it gets to the point where it is set in stone and has to be either accepted or rejected and cannot be amended. I have so much faith in the noble and learned Lord, from the years that I have known him, because of his reputation before I knew him and from my dealings with him, that I know he will do his best to deliver that. If he gives the House an undertaking that some process will be found, I will accept that and play my part in that process.
Lord Forsyth of Drumlean
This is all very sensible and I have no problem with any of it, but will the noble Lord say a bit about the timetable? How long will this process run for? I would be horrified if we found ourselves coming back here at the end of the year with this matter still not resolved. Does he think that this needs to be done by the Summer Recess? He said earlier that it should not take too long. How long is too long?
Lord Browne of Ladyton
Clearly it could be done by the Summer Recess, and that would be my preference. It would be contradictory to issue a consultation document and argue for the resolution of this issue as soon as reasonably practicable and then put practical blocks on that being done because we cannot get through the process here. We in this Parliament have all had experience of dealing with things in an emergency. In the context of Northern Ireland, for example, in order to maintain momentum in the peace process or to respond to circumstances, we have taken legislation through each House in one day. So if there is a will there is a way, and there ought to be a will because this is the most important question that the people of Scotland have ever been asked—or at least since 1707—and, as we have heard repeatedly from noble Lords, it has serious implications for other parts of the United Kingdom. People have lots of investment in this. The Government should treat this as a priority and find a way forward. We have stuck to a timetable that is associated with the consultation that the Scottish Government have issued, and to respect them we must observe that timetable. Beyond that, though, we need to move as quickly as possible.
With regard to the noble Earl’s three or four amendments, I think we were all interested in the history lesson that we had about the islands of Orkney and Shetland, the observations about Rockall and indeed the argument about a complementary referendum for the United Kingdom after the Scottish people have had their say, if they determine to leave the United Kingdom. Like other attempts to amend the Bill, the complementary referendum falls down on the next question, which is: if the Scottish people decide to leave and the rest of the United Kingdom wants to keep them, how do you keep them in the United Kingdom? Unless you were going to ask that question, why would you hold the complementary referendum? I listened to my noble friend Lord Reid explaining the necessity for dealing with these issues in series. Many of us who have been in this debate consistently had got to that point a while ago. I read in some of the responses to the consultation attempts to explain this by analogy, but the best analogy that I have heard for this is that if you are a member of a club and you choose to leave, that is a decision for you, but if you are a member of a club and you want to change the rules, that is a decision for all the members of the club. That seems to be common sense. The analogy belongs to Sir Malcolm Rifkind, by the way; maybe he got it from someone else, but he said it to me and I thought, “That’s exactly the position”.
Consulting all the other members of the club about changing the rules, if that is what we choose to do in future, will be a complicated and difficult process because there is a lot to be done if we enact the Bill. First of all, we have to work out the exact implications of what we have already devolved to the Scottish Parliament. We have learnt a lot in this Committee about Clause 28, which is quite substantial devolution. We have to persuade those people who are good at making up phrases to describe what they want and what it means—they had their opportunity with Calman to come forward and explain what all that meant, and precious few of them appeared—and then find some mechanism beyond the separate party mechanisms of finding an inclusive, all-party process of measuring whether all this is in the best interests of Scotland and the rest of the United Kingdom. Then perhaps we can decide how we are going to ask for approval from the people of the country for that deal if we come to some recommendation. That, however, is a process for another day; it cannot be done in the context of this Bill.
I shall deal with the noble Earl’s other two amendments about the islands. My suspicion was that what lay behind those amendments was oil, which was perhaps doing a disservice to the noble Earl as I listened to him explaining the history of the islands and his knowledge of the island of Rockall and how it was claimed for the United Kingdom. He was quite candid about the issue towards the end of his remarks. I say to him that if that is the intention of any person in relation the Bill, that is not a game that people on these Benches will play. The challenge that we face is to persuade the people of Scotland to stay in the United Kingdom for good, positive future reasons. If we cannot meet that challenge, I will be no part of telling the voters of Scotland that if they vote for independence the UK will take away their oil. Starting down that line would be utterly counterproductive.
I must caution the noble Earl. Whatever the underlying motivation may be for these amendments—respecting the wishes of the people of the high north with regard to the United Kingdom, or the history of the island of Rockall, which is much more chequered and less specific than it first appeared—now that he has linked this issue to oil, I ask him please not to repeat these arguments in Scotland, as they will damage our ability to keep the union together.
Lord Wallace of Tankerness
I hear what my noble friend says and the force with which he says it. I suggested that we might try to identify a way in which we can engage without finding ourselves in a position where a negotiation takes place in public. As regards the point made by the noble Lord, Lord Sutherland, I do not think he would expect hands to be declared in any negotiations. Nevertheless, I do not want to be party to any mushy outcome, as I think was suggested by the noble Lord, Lord Williamson. We have been given a very clear steer by your Lordships’ House, not least by the noble Lord, Lord Williamson, as regards what things are important.
Lord Wallace of Tankerness
I hope that I may finish this point and then I will certainly give way. The noble Lord, Lord Williamson, said that there should be a clear question on independence. I hope that I have made that clear. He indicated that each House of Parliament should be involved in that, and a Section 30 order certainly delivers that. He talked about the timing. We may come back to that when we discuss the next group of amendments but the Government have certainly made it clear that they would prefer a referendum to take place sooner rather than later. These are important points which strengthen our position in any negotiation as they are genuinely supported across parties and those attached to no parties in your Lordships’ House.
Lord Forsyth of Drumlean
I am finding it difficult to understand what there is to negotiate about if we are to have one question and the Electoral Commission is going to run the process. I can see that there might be flexibility on timing, which I do not regard as very important. However, I share the anxiety expressed by my noble friend Lord Maclennan, that you cannot negotiate on these central principles. The worry is that we shall end up with a fudge which we will not be able to amend because of the process. If my noble friend is saying, “Look, we’ve got the message; we are committed to”—the point was made to my noble friend Lord Lang—“a single question: the role of the Electoral Commission; and we are not going to move on that, and it will be part of the Section 30 order”, all of us will be a bit less nervous.
Lord Wallace of Tankerness
I tried to note down a phrase that my noble friend used: “We are determined to resolve this question”. We are determined to resolve this question. The noble Lord, Lord Browne, said that there was little room for manoeuvre. The Scottish Government have tried to describe the issues that we have set out to ensure a legal, fair and decisive referendum as having strings attached. We are not attaching strings. We are seeking provisions, such as in any other referendum, that ensures that it is delivered successfully, and where all sides agree that it has been a success and a decisive referendum. The manifesto commitment of the Scottish National Party was to have a referendum on independence, not devo-max. Therefore, if we say that we support a single question, we are actually seeking to give legal substance, a legal basis, for something that that party put in its manifesto. That is why our position is very strong as we go forward in seeking to achieve a Section 30 order.
Lord Forsyth of Drumlean
I do not want to prolong this. My question was: is the Minister saying to us, in pursuing his Section 30 route, that his position will remain the same—that there is no flexibility on these central issues of a single question and the role of the Electoral Commission?
Lord Wallace of Tankerness
There has been considerable agreement between the two Governments on the role of the Electoral Commission, which is vital. I do not believe that we would get a fair, legal and decisive referendum if we did not involve the Electoral Commission. A signal as to why I believe that we can reach an agreement is that already, since I made a Statement on 10 January, the Scottish Government have come a long way and acknowledged the position of the Electoral Commission.
I hope that I have tried to express clearly what the Government believe are the key issues on this matter, without saying—
Lord Wallace of Tankerness
My Lords, this group of amendments has allowed us to look at a number of the practical, important issues which arise in the context of a referendum. As I indicated earlier, it is an opportunity for your Lordships to express views on this. Although we found consensus on a number of issues in the earlier debate, clearly on the issue of franchise there have been different views, to which I shall try to respond.
On a preliminary matter which I am not quite sure related to the independence referendum, the noble Lord, Lord Foulkes, raised a question on the so-called West Lothian commission, which is to look at the implications for the House of Commons of devolution. Its formal remit is to consider how the House of Commons might deal with legislation which affects only part of the United Kingdom following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The noble Lord asked about submitting evidence. I was not aware that it was not receiving evidence—I am not sure whether the noble Lord meant oral evidence or written evidence—but the commission that has been established is independent of government and I would be wary of trying to intervene. The commission should be free to undertake such work as it deems necessary to consider proposals for handling the parliamentary consequences of devolution.
A number of noble Lords—my noble friend Lord Steel and the noble Lords, Lord Watson and Lord Foulkes—raised the question of timing. The United Kingdom Government’s firm view is that the question of Scotland’s constitutional status should be resolved sooner rather than later. The continuing uncertainty about Scotland’s future is damaging to Scotland and until the issue is resolved that uncertainty will remain and, I suspect, grow. In our consultation paper we asked for views on the timing of the referendum and the majority of responses were in favour of holding it sooner than the Scottish Government’s proposal to hold it in the autumn of 2014. Recently, my right honourable friend the Secretary of State set out a timetable for a referendum to be held in September 2013. We believe that that is a practicable timetable and see no need to delay. That view has been expressed by others. CBI Scotland said:
“The timetable should certainly provide for sufficient facts and analysis to be made available to business and the wider public and for the issues involved to be fully considered but, on balance, we believe that the referendum can and should be held sooner than currently planned”.
By “currently planned”, I think it means the preferred date of the Scottish Government. There seems to be a general consensus in your Lordships’ House on this.
The amendment of my noble friend Lord Steel would ensure that any referendum on Scottish independence was administered by the Electoral Commission. A number of colleagues and noble Lords expressed their support for this and, again, I think there was widespread support for it. My noble friend Lord Selkirk of Douglas gave some practical examples of when he believed that the Electoral Commission would have been of considerable benefit. I am sure we are not calling now for a recount of the Lothian regional vote in 1999. History might have been different in so many ways if there had been a different outcome there.
The Government’s view is that it is right that the Electoral Commission should oversee the referendum. It is a well-established body, known to be credible, independent and politically impartial. As the noble Lord, Lord Browne, pointed out, two referendums in 2011 were overseen by the Electoral Commission without criticism. It has the experience and expertise required to oversee this referendum and can play a key role in ensuring that the referendum and its results are seen to be fair and decisive.
Previously, the Scottish Government suggested that they would create what they called a Scottish referendum commission to oversee the referendum, answerable only to the Scottish Parliament. As my noble friend Lord Steel indicated, it is not a particularly satisfactory position when one of the players nominates the referee. The United Kingdom Government believe it is unnecessary to create a new commission—undoubtedly, that would be done at additional cost—when the Electoral Commission is already in place and has demonstrated its capability. We are pleased that the Scottish Government now agree that the Electoral Commission should lead on the oversight arrangements for the referendum and we will continue to engage with the Scottish Government on this. Again, a number of responses to the consultation concurred with that.
Lord Forsyth of Drumlean
While my noble and learned friend has a drink, is this phrase of allowing the Electoral Commission to have “oversight” not weasel wording? Surely the Electoral Commission should be responsible for the overall conduct of the referendum campaign.
Lord Forsyth of Drumlean
Yes, including the question. I notice that in the Scottish Government’s consultation paper, which was then spun as involving the Electoral Commission, it was invited in as a kind of veneer of respectability. The Electoral Commission has to be the regulator. Is that use of “oversight” by my noble and learned friend weasel wording or does it mean what we all want it to mean?
Lord Wallace of Tankerness
My Lords, in our earlier debate on referendums, in response to an issue raised by the noble Lord, Lord Foulkes, I said that it is the Government’s view that the Electoral Commission should fulfil the same role as it has in relation to UK Parliament referendums, as set out in the Political Parties, Elections and Referendums Act 2000. Its role would be the same in reviewing the question. My noble friend Lord Caithness raised this. The Electoral Commission’s role is to advise and to oversee referendums. It is not appropriate for it to set the question and current legislation does not provide for it to do that. It is my understanding that the Electoral Commission would itself have concerns about doing that. The PPER Act 2000 sets out a clear role for the Electoral Commission that we believe should be respected for a referendum on independence: to review and report on the question. We believe that that is the right approach.
Lord Wallace of Tankerness
My Lords, the reason for disagreeing Clause 10 is that this proposed new clause will replace it. The amendment will widen the scope of the provision contained in Close 10 so that the savings provision does not apply solely in situations where legislative competence has been transferred to the Scottish Parliament only temporarily under a Section 30 order. It will ensure that the savings provision will operate where any alterations are made to reserved matters or to Schedule 4 to the Scotland Act 1998, whether by the making, revocation or expiry of a Section 30 order or otherwise—for example, by amendment in primary legislation.
There is widespread recognition that clarity is required regarding the status of Acts of the Scottish Parliament in the event that legislative competence is reduced. The amendment has been tabled following comments from the previous Scotland Bill Committee and the Law Society of Scotland. It will ensure that Acts of the Scottish Parliament that have been validly made within the legislative competence that existed at the time do not cease to have effect purely because of changes to the boundaries of reserved and devolved matters. Such provisions would cease to have effect only if this was provided for in an enactment.
The amendment clarifies that provisions contained in an Act of the Scottish Parliament that are no longer within the legislative competence of the Scottish Parliament will not automatically fall following that alteration of competence. Therefore, no gaps in the law will be created as a result. This means that a positive decision will need to be made to repeal provisions in an Act of the Scottish Parliament. This could be done in the legislation providing for the re-reservation or in separate legislation passed by the UK Parliament. As a result of this amendment, a provision in an Act of the Scottish Parliament that was once within legislative competence, prior to an alteration in that competence, will not for that reason alone cease to have effect. It will cease to have effect only if an enactment provides otherwise.
The wording of the amendment is intended to clarify two things. First, the previous operation of that ASP and anything done under it, up to point of the alteration in legislative competence, is not affected. Secondly, any alteration in legislative competence does not affect the continued future operation of the ASP, including any powers exercisable under it. For example, it would ensure that any powers of Scottish Ministers under an Act of the Scottish Parliament to make subordinate legislation would continue to be exercisable by them notwithstanding the alteration of legislative competence.
Proposed new subsection (3) of the new provision makes a technical amendment to Section 92 of the Scotland Act 1998, “Queen’s Printer for Scotland”, in consequence of the addition of the provision in proposed new Section 30(6) of the Act. I hope that the Committee will agree that this is a sensible amendment, which will strengthen the provision that was originally contained in Clause 10. I beg to move.
Lord Forsyth of Drumlean
I do not want to detain the Committee, but what problem does the amendment seek to remedy? Has something arisen? Secondly, if we proceed with a Section 30 order on the referendum, would this enable the power to hold future referendums to be retained by the Scottish Parliament?
Lord Wallace of Tankerness
My Lords, on the second point, a noble Lord asked me earlier—it may have been my noble friend the Duke of Montrose—whether it would be possible to have a Section 30 order that applied to just one referendum. The answer is that that is precisely what we plan in our draft.
The issue that the amendment seeks to address is that for some powers it may be thought expedient or wise to give the Scottish Parliament a temporary extension of power. I think I am right in saying that such a power was granted under a Section 30 order following the case of Somerville. We seek to make it very clear that if the Scottish Parliament passes legislation—as indeed it did under that power—under a temporary transfer from reserved to devolved power, it does not automatically repeal any legislation that has been properly and competently enacted when the temporary transfer of power ends.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(12 years, 8 months ago)
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Lord Selkirk of Douglas
My Lords, I want to address Amendment 45, to which the noble Lord has just referred. This amendment inserts into Clause 22 a commitment to ensure that before a person finds himself or herself in the role of Crown Estate Commissioner for Scotland, that person should be well qualified to do the job. The reason for this is that the resources and responsibilities of the Crown Estate Commission in Scotland are very great—its value is believed to be about £207 million—and I understand that last year, its revenue surplus was more than £9 million, to which the Treasury was entitled under the Civil List Act 1952. The actual Crown Estate is very considerable in Scotland, and has many responsibilities for farms, forests and estates, some of which have many sites of special scientific interest. But the responsibilities do not stop there.
The various Crown regalia include the areas on the coast between high and low tide, and it is no surprise that the Crown Estate has the rights to the foreshore and the seabed, as well as rights for minerals and for salmon fishing. The Minister, the noble and learned Lord, Lord Wallace of Tankerness, may be one of the few in this House who will be aware that in Orkney and Shetland, which he used to represent as an MP, the Crown Estate had absolutely no salmon rights at all. This is because in the past feudal law did not apply there, but udal law did. However, I must say that the Crown Estate has been extremely busy elsewhere, and is actively helping to develop ports and harbours which will benefit the tourist industry which is so important to Scotland. It has, in addition, many major investments in renewable energy, and may invest up to £20 million more during the next few years.
I have a very high regard for the Crown Estate commissioners and wonder whether it might be appropriate to recognise in this legislation their expertise in carrying out their important duties. At present, no detail is put forward in the Bill relating to the qualification of the person who might be appointed. This probing amendment would ensure that the holder of this office will remain highly qualified. I am grateful to the noble Lord, Lord Browne of Ladyton, and the noble and learned Lord, Lord Boyd of Duncansby, for adding their support to this amendment.
It has not escaped us that the Secretary of State for Scotland recently made a significant statement about the Crown Estate. He established a coastal communities fund, a grant-giving body, which comes into effect from April. He is hoping for innovative bids. This is funded from the Crown Estate’s marine activities. The fund is UK-wide and relates to charities, businesses, social enterprise and local organisations. It allows for the support of economic development relating to the environment, education and health. I understand that £4 million will be allocated every year in Scotland. That is an indication of revenues raised in Scotland being put to very good use. Is it not the case that, with the Crown Estate Commission having such an important role, the person who looks after its interests should be properly qualified? If the Minister in his wisdom considers this amendment is not strictly necessary, I hope that he will give us all satisfactory reassurances.
Lord Forsyth of Drumlean
My Lords, I support the amendments in the name of the noble Lord, Lord Browne of Ladyton. This may appear to be simply a matter of terminology, but a very important point is being made and it is not one just of consistency. The use of the phrase “Scottish Crown Estate Commissioner” in the Bill implies that there is a Scottish Crown. It is not a Scottish Crown estate; it is the Crown Estate in Scotland. The amendment in the name of the noble Lord, Lord Browne, makes that clear by suggesting that the commissioner should be referred to as the “Crown Estate Commissioner for Scotland”.
That is deeply worrying and I do not know what is going on in the Scotland Office. This sloppy attention to language is creeping in. It has a sort of nationalist feel about it. I should check with the clerk that it is within the rules of order to refer to the Crown here, but it might be appropriate to point out that the English Crown was taken over by the Scottish Crown in 1603 in a reverse takeover.
On an issue related to this use of language, the First Minister the other day referred to how after independence there would still be a United Kingdom, which is absolute nonsense. The United Kingdom was created in 1707 when the kingdom of Scotland and the kingdom of England—
Lord Forsyth of Drumlean
It is nice to have something on which to disagree with the noble Lord. In 1603, we had the union of the Crowns. In 1707, we had the union of the Parliaments. The kingdom of Scotland and the kingdom of England ceased to exist in 1707 because the United Kingdom was created. Therefore, it is illiterate as well as misleading to suggest that there would still be a United Kingdom. If Scotland were to leave the United Kingdom, the United Kingdom would cease to exist. Whether or not the monarch went on to become the head of Scotland as head of state, the relationship would be similar to that enjoyed by Canada and Australia, but it would certainly not mean that the United Kingdom continues. For many people this may seem a kind of historical fact, but it is very important that we understand this, particularly when we have people in high office who seem determined to mislead people. I repeat that if Scotland leaves the United Kingdom, there will be no United Kingdom. I do not know what a kingdom represented by England, Ireland and Wales would be called.
To return to the subject of the amendment, the use of the terminology “Scottish Crown Estate Commissioner” is wholly wrong, and I hope that my noble friend will feel able to accept the amendment from the noble Lord, Lord Browne, which seems entirely sensible and very necessary.
The Earl of Mar and Kellie
My Lords, I am not certain that I fully agree with my noble friend.
The Earl of Mar and Kellie
Indeed. Let us try to identify what we are talking about. The Scottish Crown Estate is a pre-union institution. It was put together over many hundreds of years, developed particularly by King James IV, and one of the things that Scotland brought to the union. Therefore the reference to a Scottish Crown Estate commissioner sounds wholly correct. As regards the BBC—
Lord Forsyth of Drumlean
I hate to mention this, but since then we have had the union of the Crowns and the union of the Parliaments. When the Scottish Crown Estate came into that union, it became part of the United Kingdom with a single monarch, and it is the Crown Estate in Scotland. I know that the noble Earl has very considerable historical roots, but we have to use the terminology that is appropriate for our time. Does he not agree?
The Earl of Mar and Kellie
No, I do not. No matter what the noble Lord says, the Scottish Crown Estate existed. I was going to make a point about the BBC. That is undoubtedly a British, 20th century creation, and therefore the idea of a BBC Trust member for Scotland is quite appropriate, but I do not think it is right to enter into the pretence that the Crown Estate is a British institution in Scotland.
Lord Wallace of Tankerness
I certainly believe that there should be transparency in the appointments process. Of course, we will come on to the actual mode of appointment of the Scottish Crown Estate commissioner, which would involve consultation with Scottish Ministers. It is fair to explain why, in terms of nomenclature and mode of appointment, we have different arrangements for the Crown Estate commissioner as opposed to BBC Trust members, for example.
Lord Forsyth of Drumlean
I should say in support of the noble Lord, Lord Foulkes, that I think he was asking for rather more than that. I think he was asking for an assurance that the appointment would be subject to the normal Nolan rules and procedures, not just transparency.
Lord Wallace of Tankerness
I give way to the noble Lord, who may be able to shed light on this.
Lord Wallace of Tankerness
My Lords, the position is that it must be a person who knows about conditions in Scotland as they relate to the functions of the commissioners but it does not say that the person has to be of Scottish ancestry or indeed has to have a Scottish name. As we have already discussed and debated, they may have a number of other qualities and it should not be restricted simply to a knowledge of land management or the law. If we were to start to pin it down more than that, we would start to get into difficulties as we might be excluding people who have much more to offer and who have a lot of potential. Clearly, my noble friend is not satisfied, but if he has a better wording—
Lord Forsyth of Drumlean
I am a seeker after truth here, but the intervention of my noble friend illustrates the absurdity of the wording. It never occurred to me that “Scottish” would apply to the commissioner. What is being proposed by the noble Lord, Lord Browne, which is,
“Crown Estate Commissioner for Scotland”,
gives absolute clarity that this is the person who will be responsible for Scotland in the Crown Estate. My concern related to the fact that it was suggesting that it was the Scottish Crown Estate whereas my noble friend thinks it might be the Scottish commissioner. Therefore, we have in this debate illustrated why the noble Lord, Lord Browne, is absolutely right. I hope that my noble and learned friend will accept his amendment.
Lord Wallace of Tankerness
I am sorry to disappoint my noble friend but the problem with,
“Crown Estate Commissioner for Scotland”,
is that it would suggest that the Crown Estate commissioner’s role was restricted to Scotland. That is not the case. The person is expected to play a part in the board as a whole and the person's responsibility should not be physically restricted to Scotland. That is why we believe that to use the,
“Crown Estate Commissioner for Scotland”,
would restrict the role which that person could play on the board. That would be a very unfortunate thing to do. As we already heard, some of the previous Crown Estate commissioners who had a Scottish remit have gone on to be the first Crown Estate commissioner. It would be very disappointing indeed if we were to use a terminology that suggested that this person could not actually contribute to the work of the board when it related to matters outwith Scotland—or furth of Scotland, if I can use that expression.
Lord Forsyth of Drumlean
If my noble and learned friend will allow me, if that argument stands then how have we managed to get away with the present incumbent being called the Scottish commissioner?
Lord Wallace of Tankerness
I am not sure that we are getting away with it. I am actually trying to propose that it is the commissioner who will have knowledge about conditions in Scotland. There is a distinction, if one chooses to reflect for a moment—
Lord Wallace of Tankerness
The noble Lady’s suggestion certainly sounds much more promising. It could mean that we were not putting an artificial restriction on the role that that person could play on the board as a whole. As other noble Lords have indicated in this debate, the contribution made by the Crown Estate commissioner who currently has responsibilities of a Scottish nature has been very important to the overall working of the board. If we were to limit it by territory, there are parts of the United Kingdom where the Crown Estate does not necessarily have any activity and therefore it would become very unfortunate. I shall reflect on what the noble Lady has said. It was a helpful suggestion that reflects the fact that the person ought to have a knowledge of Scotland and be able to make a contribution on it, but they should also have a broader expertise that they can bring to the work of the board. That is what we are seeking to achieve.
Lord Forsyth of Drumlean
I apologise for interrupting my noble and learned friend so frequently, but his argument needs a bit of shoring up. As I understand it, the argument is that if the Crown Estate commissioner were the Crown Estate commissioner for Scotland, he would not be able to participate on the board because he would appear to be concerned solely with Scottish interests. Can I take it, then, that the Government are planning to change the name of the Secretary of State for Scotland? On my noble and learned friend’s argument, that would imply that the Secretary of State for Scotland could not participate in Cabinet on matters that were across the range. That is an absurd argument, and my noble and learned friend might at least indicate that he will go away and think about it.
Lord Wallace of Tankerness
I am grateful to my noble friend for the shoring up. The very fact that we have had this debate on the wording suggests that if we had proposed something else, I can imagine that he would have been one of those saying, “Of course, you mean that this person can make a contribution only in respect of Scotland and that is not acceptable as that person needs to have a wider remit”. As I indicated to the noble Lady, Lady Saltoun, her suggestion is worthy of further consideration and I shall consider it. If it answers the key point, which is that the person should have knowledge of Scotland and should not be restricted in terms of their qualifications—the broad totality of what is required for the board should be a factor in that person’s appointment, but the person might also have a special responsibility for Scotland or particular interests there—then that might well address the need without being unduly restrictive or indeed giving a misleading description of what that person’s role would be. I thank the noble Lady for that suggestion, to which I will most certainly give consideration.
Because of that wider responsibility, it is important that the appointment of all commissioners should be made by the sponsoring Minister, in this case the Chancellor of the Exchequer. I reassure noble Lords that he will make a recommendation for the appointment of this particular commissioner only after consulting Scottish Ministers and listening carefully to what they say. That appropriately balances the need for both a Scottish interest and a UK-wide perspective on the appointment process.
There is particular concern over why there has been a different process for that appointment from that for the Scottish member of the BBC Trust. The BBC Trust has a different constitution from the Crown Estate. Under its charter, the BBC has obligations to broadcast to all parts of the United Kingdom and to have a member of its trust for each of the nations that make up the United Kingdom. That is very distinct from the position of the Crown Estate, which has no such requirements. Indeed, as I indicated a moment ago, it does not even have to have a presence in any particular part of the United Kingdom.
The appointment of all Crown Estate commissioners is by Her Majesty on the recommendation of the Chancellor, reflecting the UK-wide responsibility of every commissioner. The UK Government will still need to discuss the Scottish appointments of both organisations with Scottish Ministers to ensure that the best people to represent Scottish interests are appointed.
The noble Lord, Lord Browne, asked about the status of the Crown Estate in the Bill. It is certainly the Government’s intention to consider the report of the Scottish Affairs Committee alongside the request that was made by the Scottish Government for further powers in relation to the Crown Estate. The Government believe that the Crown Estate operating on a UK-wide basis offers the best value across the whole of the United Kingdom, but we recognise the role that the Crown Estate plays in local communities and wish to work with it to ensure that it operates most effectively with them.
Particular to that is the coastal communities fund, which was mentioned by my noble friend Lord Selkirk. The Chief Secretary to the Treasury announced the establishment of that fund, which will be financed by the Government through the allocation of funding equivalent to 50 per cent of the revenue from the Crown Estate’s marine activities. It is linked to revenue that is raised by the Crown Estate’s marine activities each year and the funding will be available on a bid basis. The Government will welcome bids from charities, businesses, social enterprises and local organisations. In that way, we can build a stronger link between the activities of the Crown Estate, particularly in coastal communities, including those that are affected by such activities. It is a very positive step, which recognises the role of the Crown Estate.
I have indicated that I will certainly give further consideration to nomenclature and thank the noble Lady for her helpful suggestion. However, I have also indicated that there is a distinction between the constitution of the Crown Estate on the one hand and that of the BBC Trust on another. The latter has a specific requirement to serve specific parts of the United Kingdom, which is why not only the nomenclature but the mode of appointment is different. On that basis, I urge the noble Lord to withdraw his amendment.
The Duke of Montrose
My Lords, in moving Amendment 47, I shall speak also to Amendment 50 in this group. We are dealing here with two further areas in which the Calman commission has taken up the wishes of the Scottish Executive to exercise more power: the setting of drink-driving limits and the setting of speed limits. Amendment 47 amends the Road Transport Act 1988 and would provide for regulations made by Scottish Ministers on drink-driving limits to be referred to in the regulations made by the Secretary of State with regard to the driving test—which, presumably, should still be the same across the United Kingdom. The amendment was suggested by the Scottish Law Society, among others, and is more or less a tidying-up exercise.
I notice that some of the other amendments have been tabled by noble and learned Lords opposite, and I feel slightly in awe of such learned names as appear attached to them. My amendments are directed solely at the Road Transport Act. It is interesting that none of those noble and learned Lords has objected to the devolution of powers on drink-driving, but some of the amendments in the group concern the devolution of speeding. It will be interesting to see what is brought up on that front. Of course, any variation will immediately bring complications for both learner drivers and visitors. The reason for my amendment is that any regulations made by Scottish Ministers with regard to drink-driving limits should be made known to any person submitting himself to a test of competence to drive.
Amendment 50 would provide that any regulations made by Scottish Ministers with regard to traffic regulation on special roads, general provisions as to traffic signs and temporary speed limits would appear in the driving test in a similar way to the issues I raised under my previous amendment.
Section 38(2) of the Road Traffic Act, which lays down the provisions affecting the Highway Code, gives the Secretary of State sufficient powers on his own to carry out the changes proposed in the amendments tabled by the Opposition Front Bench. I should not have thought that all those details about the Highway Code need to be in the Bill. I have received a briefing that may have emanated from my noble and learned friend on the Front Bench which seems rather to agree with that; he may have a similar view, and I look forward to hearing what that is. I beg to move.
Lord Forsyth of Drumlean
My Lords, I think it is in order for me to speak to Amendment 48, which is in this group, at this stage.
First, I must comment on the amendment moved by my noble friend the Duke of Montrose. There is much talk in Scotland about so-called devo-max, which those talking about it find it almost impossible to define. This seems to me to be pretty close to devo-max. I cannot for the life of me see why we need to have different speed limits or different rules relating to drink-driving between Scotland and England. That will create particular problems for people who live on the border and are driving on roads which do not follow the geographical border. This seems to me to be absolutely devo-max and devo-plus. These proposals have come about because all the parties got together in the Calman commission to try to prevent the nationalists winning a majority in the Scottish elections and thought about everything but the kitchen sink that they could throw into the Bill—which, as usual with legislation these days, was not given great scrutiny in the House of Commons. Here we are in the Lords, looking at this stuff now. The Highway Code and the rules for driving motor cars are complicated enough without there being different rules for different parts of the United Kingdom, which is just plain silly. However, it is in the Bill and the Government appear to be committed to it, so we have to deal with it as it is.
Having said that, I am extremely grateful that the Calman commission, on which a number of my noble friends served, did not in its enthusiasm decide that it should give the Scottish Parliament the right to decide which side of the road we should drive on—I do not know whether it was suggested; perhaps my noble friend Lord Selkirk of Douglas might be able to advise me on that. I make that point not just flippantly, because it is evident that the Bill as drafted gives the Scottish Parliament the power to decide the speed limit for motor cars but not that for HGV lorries. Had it been able to decide which side of the road to drive on, it could have been disastrous, because we would have had cars driving on one side and HGV lorries on the other, and we would have had a head-on collision.
I cannot for the life of me imagine why a Bill, which has been before Parliament now for nearly two years, has been through all its stages and been discussed by the Scottish Parliament, contains an anomaly whereby it makes provision for setting the speed limits for cars but not for HGVs. To give credit where credit is due, the parliamentary committee which looked at the Bill in the Scottish Parliament identified that anomaly. It is absurd that, at a time of great austerity and when local government has had its source of revenue through council tax frozen, we have a proposal that all road signs and speed limits should be able to be changed in Scotland but only in so far as they relate to motor cars but not HGVs.
I received a briefing for this Bill from the Whips’ Office whose contents I suppose I am not allowed to reveal because they are secret. It indicated that if I were to press the amendment my colleagues should resist it because, if we included HGVs as well as motor cars in the Bill, it would result in the road signs having to be changed. We would be in the absurd position where we would have to have road signs that related to the UK regulations for HGVs and road signs which were changed for motor cars, so we would have two sets of road signs. This is good news if you make road signs, but very bad news for the taxpayer.
My guess is that what has happened here is a typical intergovernmental dispute. I suspect that the Department for Transport is digging in its heels to maintain control over HGVs and the Scotland Office is saying, “Well, we’ve made this promise in Calman, so we’ll just leave it in the Bill and hope no one notices”. Amendment 48 establishes a principle which I am sure my noble and learned friend can happily accept because it certainly covers common sense, and I have pleasure in proposing it.
The Duke of Montrose
I do not disagree with my noble friend Lord Forsyth, but is it not true that the speed limit for HGVs is already low enough for the Scottish Executive not to wish to interfere with it? Is not their argument with private vehicles, which have a very much higher speed limit at the moment?
Lord Forsyth of Drumlean
I do not have a clue, but whatever they think, Governments, as I well know, come and go, as do Ministers and Administrations. We are talking about the making of the law here and there should be consistency. It seems to me that when you are driving from London to Glasgow, the amount you are allowed to drink, what you are allowed to do in terms of the speed limit in a built-up area and what you are allowed to do on motorways and dual carriageways should be the same as they were when I learnt the Highway Code. The Highway Code should be clear to everybody and mucking about with it in this way is just plain daft. None the less, that is what we are doing. However, if you are going to give the Scottish Parliament the power to decide on a different speed limit, it seems a bit odd that it should apply not just to motorcars but to all classes of vehicles. That is a very simple point.
Lord Forsyth of Drumlean
I guess it does, and that is another absurdity but this is what happens when, for political reasons, politicians start mucking around with the powers that relate to Parliaments. The end result is confusion where there should be clarity, and clarity is very important in this area. If there is a case for reducing the speed limit—I think that there is a case for doing so in built-up areas and for increasing it on motorways—it should be done in the United Kingdom as a whole. In all the time that I served as a Scottish Member of Parliament in the other place, nobody ever came to me and argued the case for having a different speed limit in Scotland. People would argue about the regulations that related to where 30 mph speed limits would be but there was no suggestion that there should be differences.
Because I am very constructive when it comes to the Scotland Bill, as my noble and learned friend knows, I am very happy to accept that a decision has been taken on this. However, if you are going to make changes to the law and to the ability to change the law in respect of speeding, drink-driving and so on, the penalties should match the crime, and we are not providing for the Scottish Parliament to be able to produce the whole package. In short, this is a bit of a muddle. I look forward to my noble and learned friend’s answer and to hearing a commitment that he will sort out the muddle in the way that this House is very good at doing.
Viscount Younger of Leckie
My Lords, my name is added to Amendments 47 and 50. However, I should like to focus my thoughts in general on all the amendments in this group, which specifically, following my noble friend the Duke of Montrose, covers the devolvement of drink-driving test thresholds to Scottish Ministers and the decision on speed limits north of the border.
Within the Bill I am broadly supportive of passing decision-making to Scottish Ministers on major issues such as raising taxes. However—and this is where I agree with my noble friend Lord Forsyth of Drumlean —my initial reaction to the proposals for potentially different speed limits and alternative breath-test thresholds on either side of the Scottish border was that they were petty, insignificant and unnecessary. Above all, I felt that any such change north of the border must surely be change for change’s sake, with the Scots just wishing to be different and having an implicit mistrust of the English authorities to set correct limits for both.
I regard us as being one nation for these purposes. In case we had not noticed, there is a seamless border between Scotland and England, so any change would necessarily mean increased bureaucracy, together with, as has already been mentioned, changes in the Highway Code, and, in particular, signpost changes everywhere along the border from Gretna to Coldstream and beyond, leading to increased costs. Above all, it would be confusing for the motorist. It has already been pointed out that if, for example, someone driving north is stopped south of Carlisle and breathalysed, and is then let off because of the limit in England, and he then unfortunately gets caught again when he is stopped at Beattock Summit, he could be over the limit there—assuming there is a lower breath test limit north of the border. The moral of the story, of course, is that one should not drink and drive; but the fact of the matter is that we should keep it simple for motorists and it is a very confusing issue.
However, that was my initial reaction and I have come round to thinking more positively about the potential differences north and south of the border. In so doing, I decided to look at the Irish experience—that is, the differences in road laws north and south of the border. Again, it is a seamless border. There are, first of all, broadly similar speed limits, the major difference being that there are kilometres in the south and miles in the north. The implications for that are that drivers have actually got used to the changes and highway codes have been changed without too much bother. The main thing is that rental companies have had to be aware of the changes and have had to, over time, issue new guidelines. Some of their cars have dual kilometres/miles per hour on their speedometers.
When it comes to the breathalyser tests, there are differences between the Republic and Northern Ireland. At present, Northern Ireland is the same as the rest of the UK, which has a limit of 80 milligrams per 100 millilitres of blood: beyond that, you get caught. In October 2011, the Republic’s threshold was lowered to 50 milligrams per 100 millilitres of blood. In Northern Ireland, there is now talk of changing to the Republic’s levels. It is no bad thing, therefore, if Scotland also goes down this route, given devolved powers.
Why is this? It is because in Scotland, the road casualty rates, some of which inevitably result from drink-driving, are 34 per cent higher per head of population—both for fatalities and for serious injuries. We should bear this in mind. The Royal Society for the Prevention of Accidents fully supports a reduction in breath test limits. It says this is a chance for greater financial benefits for the nation as well as benefits in health and well-being.
Lord Forsyth of Drumlean
I am most grateful to my noble friend, but is he not making an argument for the whole of the United Kingdom? Is not the difference in statistics between Scotland and England, which he has highlighted, an argument about enforcement rather than the level of the limit?
Viscount Younger of Leckie
I take my noble friend’s point, which is a good one that should be discussed. It brings up the point about discussions going on north and south of the border concerning that issue. One point to make is that a recent survey highlighted the fact that 79 per cent of Scots were in favour of lowering the limit.
Finally, as has been mentioned, if Scottish Ministers did decide to change either speed limits or breath test levels north of the border, there need to be certain safeguards in place. For example, if an English driver commits a serious offence in Scotland, it is imperative that a disqualification remains in place when he returns home. There is form on this. In 1998, for example, there was an agreement of co-operation between the Republic of Ireland and 13 member states of the European Union over disqualification. I understand that there is also an agreement between Northern Ireland and Great Britain over such recognition. I think, on balance, that devolution of powers to Scottish Ministers on road safety matters is positive only if—as seems possible—there are safer roads.
The Earl of Caithness
My Lords, as I listened to the debate I wondered whether my noble friends had driven through Europe. The exact problems they explained to the House are those that one gets in Europe. Last week I drove through three countries in about an hour and a half. In each of them there was a different speed limit. This was well signposted at the side of the road and I did not cause immense problems.
Lord Forsyth of Drumlean
Is there not a proposal for harmonisation of speed limits and other matters in the European Union for precisely the reasons that the amendment ought to be supported? It goes with the European drift, which I thought my noble friend was very keen on.
Lord Forsyth of Drumlean
I cannot think of an example—perhaps my noble friend Lord Steel could help me—but there are roads in the Borders which go in and out of Scotland and England as you drive along them. If there were differences in the drink-driving limits or the speed limits, would we have signs every 100 yards saying “Now it is 30” or “Now it is 20”, or would we have policemen sitting in a lay-by in England or Scotland, depending on which had the higher limit, and would we have great arguments in the courts as to which part of the road you were on?
My noble friend Lord Caithness, who has now left, talked about driving across Europe. We are not talking about driving across Europe; we are talking about country roads in the Borders. What is the utility that is being achieved here? The arguments that the noble Lord is making, with which I have some sympathy, are arguments about what the limits and rules should be; they are not actually arguments for it being different in different parts of the United Kingdom.
Lord Boyd of Duncansby
I am not familiar enough with the borders to say to what extent roads come in and out of Scotland and England. The picture the noble Lord seems to be painting is that every 100 yards it meanders over the border. Of course, I am aware that a river forms at least part of the border. I actually thought that there were more significant difficulties with Northern Ireland and the Republic. I remember reading stories about people having part of their house in the Republic and the other part in Northern Ireland. Of course, you would not drive through a house. Nevertheless, roads probably do meander more over there than they do between Scotland and England. I take the noble Lord’s point; clearly there may be times when there are issues with that. I should think that there will be a common-sense approach between police forces on both sides of the border, as there already is in relation to jurisdictional difficulties, wherever they might arise.
Lord Forsyth of Drumlean
I am sorry, I am rather confused. Which Secretary of State are we talking about here? Is it the Secretary of State for Transport?
Lord Forsyth of Drumlean
So the proposition is that the duty lies on the Secretary of State for Transport to make amendments to the Highway Code, which may have been made by the Scottish Parliament.
Lord Wallace of Tankerness
Yes, it is the Secretary of State for Transport—I hope that I said “she”—and that would be the case. There are regular revisions of the Highway Code. As I might have said or was about to say, Scottish Ministers were consulted during the last revision and it is intended that they will continue to be consulted.
It would not be helpful to have two separate editions of the Highway Code. I think I am right in saying that one contributor to the debate strongly urged that we should not have a tartan edition of it as well. It was the noble and learned Lord, Lord Boyd of Duncansby. There should be one edition of the Highway Code, but of course it should reflect the differences that are there, and there is indeed a mechanism for doing that. The Government are therefore of the view that an amendment providing for an update to the Highway Code in the Scotland Bill is unnecessary.
Again, with regard to driving tests and the content of regulations, changes made to speed limits are somewhat parallel. Section 195 of the Road Traffic Act 1988 already requires consultation with representative organisations prior to making regulations relating to the driving test. This would include the Scottish Government. I understand the point that questions in the driving theory test about speed limits and drink-drive limits should reflect any new Scottish limits. As with the Highway Code, the driving theory test is regularly updated and significant changes to road traffic legislation can be included. Like the Highway Code, currently the content of the test is not a matter for legislation. To start adding specific requirements as to what the test must reflect, which may be subject to change in the future through primary legislation, would be inappropriate.
Nevertheless, I accept that important points have been made about driver awareness of any changes across the United Kingdom. To that end, I confirm that it is standard practice for the Scottish Government to be consulted when changes are proposed to the driving test. The theory elements of British driving assessments are already amended to reflect legal changes with substantial effects on what is covered in the assessments. I confirm that a change to the national road speed limit or the drink-drive limit, whether it were across the remainder of Great Britain after the transfer of power or in Scotland, would be such a change and would be reflected.
Lord Wallace of Tankerness
My Lords, motorway maintenance, for example, is certainly devolved to the Scottish Government. I rather suspect that the motorway speed limit is set under UK legislation. If I am wrong, I will either clarify it before the end of this debate or write to the noble Lord, either to confirm or to clarify. I certainly know that the maintenance of the motorway network is a responsibility of the Scottish Administration.
The amendment which noble Lords opposite also propose would require the Scottish Ministers and the Secretary of State to jointly make regulations governing the enforcement of the alcohol limit for driving if the limits in Scotland and England differ.
Lord Forsyth of Drumlean
Before we leave the Highway Code, let us say that this legislation has gone ahead and, for the sake of argument, that the Scottish Parliament has decided to make the speed limit 60 miles an hour rather than 70. If I am a youngster taking my driving test in Hampshire and am asked what the speed limit is on country roads and I say, “70 miles an hour”, will I pass the test or do I have to say, “It is 70 miles an hour in England and 60 miles an hour in Scotland.”? Listening to him, I do not know how my noble and learned friend will answer that question. I would like to think that the answer is that you have to give both, but how will that youngster know that and what will the mechanism be by which this will be communicated?
Lord Wallace of Tankerness
I think the answer is that the noble Lord would fail the test, because in fact it is 60 miles an hour in England. It is 70 miles an hour only on motorways, not on country roads, so with all due respect he might actually have found that he failed the test regardless of whether the country road is in Scotland or England, but I take the more general point that he was making.
Lord Wallace of Tankerness
The answer is that it would be in the Highway Code and the question would stipulate whether it meant the speed for motorways in Scotland or in England. These are not insuperable problems. This reminds me of the days of the Calman commission when some of these issues were being teased out. I thought that if, prior to the union between Scotland and England, there had been no difference in the law on marriage with consent and someone had suggested that in Scotland you could marry without your parents’ consent at 16, people like the noble Lord’s ancestors would have stood up and said, “What about Gretna Green? People will be flooding to Gretna Green to get married!”. Well, so they did, and the heavens did not fall in and the union stayed together; indeed, it has been very good for tourism in that part of the south of Scotland. You can pick up these little points and tease away at them, but they are not going to end the union. The union allows for these differences if they are thought proper and appropriate.
Lord Forsyth of Drumlean
This is all very amusing, and I take the point that I should have said dual carriageways—motorways, rather—with regard to the speed limit, but amid all that bluster my noble and learned friend gave the answer: it would be in the Highway Code. How will it get into the Highway Code if my noble and learned friend does not accept these amendments? Are we relying on the Secretary of State for Transport finding out what is going on in the Scottish Parliament and communicating that? How will this be achieved?
Lord Wallace of Tankerness
My Lords, my noble friend is building a mountain out of a molehill. These matters are not exactly going to be slipped under the carpet. As I have indicated, Scottish Ministers were fully consulted in the most recent consultation on the revision of the Highway Code, and there is no reason to suggest that that would not happen again. Indeed, there might be even better reasons why that should happen if these powers are devolved. In the course of these debates my noble friend has put his finger on a number of important points, but I sometimes think that he is trying to make difficulties where in practice none would exist. A young person, or indeed an older person, who has not passed their driving test has to learn the Highway Code to take the theory test, and there are a whole host of questions to learn. Reserved matters change, and that is reflected subsequently in the Highway Code, but people are expected to be prepared for the test that they are about to sit.
I pick up my noble friend Lord Steel’s point on people crossing borders. My noble friend Lord Caithness said that he had driven through three countries in Europe where the speed limits changed. I recall driving through different states in the United States where speed limits changed. It was picked up that we are talking not about main roads—the M6 or the M74—but about country roads that could cross borders. I suspect that the same applies to boundaries in some other countries as well. There is certainly a boundary between the Republic of Ireland and Northern Ireland, and matters are resolved there, just as when you have local speed limits.
I can think of one particular local speed limit on the west side of Shetland. I never understood why there was a 40 mile an hour limit there, in the middle of what was otherwise a 60 mile an hour limit, but you observed it, or tried to, and then when you passed the de-restriction sign you went back up to 60. It did not actually cause any practical difficulties. You can have such a variety of speed limits in local areas and around schools in built-up areas. The limit could be 20 miles an hour, and it does not seem to cause any difficulties. People see what the speed limit is—there have to be signs—and they obey it.
The Duke of Montrose
My Lords, I thank all those who have participated in the debate. As noble Lords are aware, we have explored many avenues, although possibly not all, that could be exhausted on this topic. The noble and learned Lord, Lord Boyd of Duncansby, mentioned the main themes that have run through the debate such as road safety and which side of the road we drive on. However, it seems to me that if the alcohol driving limit is reduced to zero, using certain brands of cough mixture might get one into trouble.
I was grateful to my noble and learned friend the Minister for addressing my proposed amendments to the Road Traffic Act 1988. I purposely avoided tabling amendments to do with the Highway Code. It seems to me much more important at least to get the matter clear for people sitting the driving test. I shall read my noble and learned friend’s response, which was very detailed as this matter requires a detailed response. We have all been trying to avoid muddle. That theme seems to run through this group of amendments. My amendments do not seek to gainsay the recommendations of the Calman commission, but it seems to me that if any of these amendments are accepted, the two amendments standing in my name would need to be accepted also to avoid muddle.
Lord Forsyth of Drumlean
My Lords, I am most grateful to my noble and learned friend Lord Wallace, who did a formidable job of making bricks without straw. I am very disappointed that he did not tell us the Department for Transport’s arguments for having different speed limits for cars and lorries. Despite all the towns and byways that he mentioned on which separate speed limits apply, I am not aware of any town or community in Scotland that can set a speed limit for lorries as well as cars, which is what is proposed in the Bill.
I am most grateful for the assurance that my noble and learned friend will look at this. I take it from what he said that he is also looking at my Amendment 49 on penalties. I shall certainly be happy not to press my amendments and I entirely agree with my noble friend the Duke of Montrose that his amendments are also worthy of further consideration.
Lord Foulkes of Cumnock
My Lords, we suddenly seemed to be making rapid progress there, so we should now take a little time to contemplate an interesting issue before we get on to the important matters of finance that I am glad to see the noble Lord, Lord Sassoon, is here to deal with. Perhaps I may give him advance notice that under one particular item, I might feel it necessary to raise the issue of whether or not the problems that Rangers Football Club currently faces would have been affected in any way if these changes to the law in Scotland had been implemented by now. That is a matter for later in our discussions, but I thought it might be helpful if I intimated that to him now.
Some of my more fainthearted friends, whom I will not name, advised me to withdraw the amendment; they thought it went a little too far. I must confess that it is not the most felicitous of amendments that I have drafted during the course of this Committee stage. My friends and colleagues, anxious for my well-being, warned me against a possible cybernat offensive if I moved the amendment. Perhaps I may tell them that that offensive has already taken place just by the very fact of tabling the amendment. I must say that if the provisions for ageism had already been brought in by the Government opposite—and they have not yet been implemented—some of the remarks could have been actionable. That is not to mention some of the other things that were said.
Perhaps I may therefore take this opportunity to remind people outwith Parliament of the purpose of the Committee stage of a Bill, which, as I understand it, is for the tabling of amendments—not necessarily to move them and vote on them—to provide debates around particular issues. We have had probing amendments, amendments put forward for debate and withdrawn, and amendments that have not been moved. That is the right thing that should happen.
I want to make three preliminary points on this amendment. I have tabled other amendments, which I intend to withdraw, putting “Devolved” in front of “Government” in every part of the Bill—the “Devolved Government”. The reason I tabled those amendments was to have an opportunity to debate the difference between devolution and independence—there is a complete difference. Some people try to conflate them—the nationalists, Salmond in particular, try to conflate it for their political purposes—but there is a major, substantive difference, a complete difference. It does not matter how much devolution we have, we still remain part of the United Kingdom. Sovereignty is still with the United Kingdom. Once Scotland makes the crucial decision to become independent, it is irrevocable. We would no longer be part of the United Kingdom. That is a major change, and we need to keep reminding people beyond this Chamber of that.
That is my first preliminary point. The second is that we need to get our courage. I am very glad to have seen the recent launch, reported in the Scotsman today, of the rainbow coalition between the different parties in Scotland. It is about time that the unionists, the federalists and the devolutionists got together. Incidentally, I should like to hear more from the federalists—traditionally, the Liberal Democrats—about the federal solution, which, as I have said before, is, in my view, the long-term stable solution for the constitution of the United Kingdom.
I am slightly fed up with the accusation from some of the nationalists that it is somehow wrong if we join forces with the Liberal Democrats and the Conservatives in a joint campaign—the phrase “the toxic Tories” has been used deliberately. There is a smear campaign to try to divide us; that is the purpose. I disagree with the Tories on 99 per cent of what they do, but even a Tory is not wrong always. They can be right from time to time, and when they are right, we should embrace them, work with them and encompass them in our activity.
Lord Foulkes of Cumnock
I did not hear that; my noble friend Lord Maxton was talking.
Lord Foulkes of Cumnock
It is a monument? That is a good question for a start. That has implications in itself. As my former Secretary of State will recall, I was always asked if I was new Labour or old Labour and I used to say, “slightly shop-soiled Labour”.
Salmond and the nationalists relied on Annabel Goldie and her Tory group for support for their budget every year for the four years when I was in the Scottish Parliament. They did not see it as wrong to have that kind of coalition. Let us work together where we agree with each other and let us not to be ashamed of it.
Lord Morgan
I will make one or two remarks as a non-Scottish person, although the purpose of this amendment in part appears to be to give the Scottish National Party a good kicking. That is a very desirable objective in many ways. Coming from Wales, I am very glad that we do not have a party with the bitter Anglophobia that is frequently revealed by the Scottish National Party. In Wales, we concentrate on other things, such as beating other countries at rugby and speaking our own language.
In wishing to criticise the Scottish National Party, I am very much in sympathy with what the noble Lord, Lord Maclennan, has just said. We must be careful not to give the impression of imposing a uniform pattern on the ongoing process of devolution. It is about difference; it is about differentiation; it is about pluralism—and it is very difficult to impose any kind of check on that. I recall that Mr Gladstone famously said, “You cannot put a stop to the onward march of a nation”. That can apply to nations within the British Isles as well.
The question was raised by various noble Lords about what kind of foreign representations we were proposing to monitor or have Foreign Office checks on. There are already, of course, as other noble Lords have said, enormous ranges of foreign contacts, particularly with the European Union. It would be very difficult to distinguish between foreign contacts that needed control from Big Brother at Westminster and other kinds of contact where that was not appropriate. The real point is that there is a kind of mistaken assumption that a devolved Scottish Government—whether it be devo-max or even going beyond that, if that actually took effect—would somehow impinge on the sovereignty of the British Parliament.
The word “sovereignty” was used by my noble friend. Views of sovereignty have moved on a great deal since it was brandished by Dicey at the end of the 19th century as a kind of inalienable set of powers that, if they were diminished, would inevitably disappear. There are all sorts of ways in which the sovereignty of this Parliament is fundamentally affected and transformed. At the present time, human rights legislation has done that, our contact with Europe has done that, and devolution has certainly done that. In the famous phrase, this is a process and not an ongoing policy that comes to an end.
If you look at the concept of sovereignty within the context of some other countries, you have a very different view of sovereignty. It emerges as a much more flexible concept; it is not like a cake that you take a piece out of and that piece never reappears. Look at the länder of Germany, which pursue an enormous range of contacts on industrial, economic, agricultural and social matters with other countries, enormously to their success. It has been a feature of the success of Germany, particularly the länder such as Baden-Württemberg, that their economic prospects have flourished because they have been allowed to be independent in this way and not controlled by a central Government. This is the purpose of devolution, and I think this is more likely to be about the success of devolution than about differentiation. In wishing to criticise the severity and extremism of the Scottish National Party, we must be careful that the extended implications of devolution are not criticised as well, because they are enormously valuable for the well-being of our country.
Lord Forsyth of Drumlean
My Lords, I have two brief points to make. I very much agree with what the noble Baroness, Lady Liddell, had to say on these matters and I will not repeat the arguments. I would just like to pick up the point made by my noble friend Lord Maclennan. One of the big low points in my political life was seeing the saltires flying in Libya when al-Megrahi landed there. The noble Lord, Lord Foulkes, has been kind enough to say that perhaps his amendment is not the most felicitously drafted. Its substance, however, is that Ministers in the Scottish Parliament can of course make representations and meet delegations and travel abroad, but they should not pursue an independent foreign policy.
Until now, we have enjoyed a Civil Service that has kept Ministers in check and within the bounds of their responsibilities. I say with regret that there is a certain amount of evidence that that is not happening in Scotland at the moment. The Scottish National Party is perfectly entitled to have a policy that states that Scotland should withdraw from NATO. Why it has that policy, I do not know; everyone else is queuing up to join NATO. However, it is not entitled to advance and advocate the policy within the confines of the devolved Parliament, because foreign and defence policies are not the business of that Parliament.
Lord Forsyth of Drumlean
Perhaps the noble Lord would care to read the Scottish nationalists’ manifesto.
Lord Kerr of Kinlochard
Yes, but the innuendo today was that they must not be allowed to talk to foreign Governments because they would try to persuade them in some way to leave NATO. That is a big jump. Of course it is in the Scottish National Party manifesto; we have all read it. However, again in this debate, I have been worried by the splendid attack of the noble Lord, Lord Foulkes. He said that he is up for the fight. It is easy to have this kind of fight when the opponent is not in the ring. We ought to be careful about insulting somebody who is not here. I am happy to be insulted because I am here. However, the fight should be conducted out there on the hustings. Here, we should try to avoid insult and innuendo.
Lord Kerr of Kinlochard
It may well be true that it is their choice. If so, it is a great mistake. I hope it is the view of all in this House that it would be very good if they were here. While they are not here, we should try to avoid insult. It does not do us any good when our debates are reported in Scotland.
Lord Forsyth of Drumlean
I did not say anything that was insulting, and I do not do innuendo. I am quite direct. I said that the First Minister should not use his position to make the case against Britain being in NATO. There is nothing insulting about that. Nor is it an innuendo. Equally, the First Minister, who is paid from my taxes, should not go around the world arguing against our nuclear deterrent. He should concentrate on his duties as First Minister. There is nothing insulting about that, and there is no innuendo.
Lord Kerr of Kinlochard
I am sorry but I am not aware that the First Minister is going around the world arguing that people should leave NATO or that Britain should leave NATO. I am sure that he is saying that, if elected, he would choose to leave NATO. The innuendo is the implication that he is undercutting the policy of the British Government policy by saying that Britain should leave NATO. I do not think that he is doing that. I do not know what he is doing; he does not have somebody here to tell us, which is a pity.
I intervened on the amendment to ask the Minister whether there has been any proposal from the Scottish National Party for the inclusion in the Scotland Bill at this point—because Clause 27 is where it would fit—of a provision that would clarify or increase the role that it should play in EU negotiations, in the delegation that comes from these islands or in the preparation of the positions that the delegation will advance. I ask that because I do not know the answer. Last summer, as I recall, the Scottish Government indicated that they wanted something of the sort. I do not know what they want. I would like to see the proposal, if it is around. Are the Government sitting on a suggestion from Edinburgh that has not found its place in the Bill because they did not agree with it? If the Scots came forward with something at this stage, would the Government insert a clause in the Bill?
It is worth addressing the question of whether, as you give a bit more devolution, you should give a larger role in the preparation of a position for certain councils. I do not know whether that would extend to the presence of a representative such as a Minister from the Scottish Government in the ministerial team. I remember days when that was the case. When we first joined the EU in the 1970s, we were always represented in the Fisheries Council by a Minister from the Ministry of Agriculture, Fisheries and Food, and by a Minister from the Scottish Office, operating in tandem. I will not comment on whether that was a good arrangement. The noble Lord, Lord Williamson, will have a better memory of it than I.
The German Länder are represented in the back row of many councils that deal with domestic affairs; they do not have a speaking part. I would not recommend that anybody look at Belgium, but if we do, we see that in many councils the Walloon and Flemish Ministers attend alternate meetings. That is ideal for those negotiating from a different point of view from that of the Belgian Government, because it means that the Minister never knows what happened in the previous council and it is possible to score some runs at his expense.
When devolution happened, a concordat was prepared in London and negotiated with Edinburgh that laid down detailed rules on what kind of issues the Scots should be consulted on in full. I do not know how well that has worked; I have been away. If it is not working well, it could be looked at again; there is no issue of principle there. As we devolve a little more, maybe we ought to devolve a slightly bigger role in the preparation of such things.
These are my questions for the Minister. Has anybody asked? Has anybody specified what is wanted? What would the Government’s attitude be?
(c) section 29(2)(f)”
Lord Forsyth of Drumlean
My Lords, I shall try to be brief. The issue is covered by a number of other amendments grouped with this one. I was absolutely astonished when I reached page 2 of the Scottish edition of the Sunday Times this week. There was an article by Jason Allardyce which informed me that the First Minister, as a result of negotiation, had been able to get extra powers to raise income tax in Scotland and arrange extra borrowing. No mention was made of this orphan Bill and the fact that this is the product of the Calman commission. So far as I know we have still not had a formal response so we have not heard from the Scottish Parliament whether it is prepared to give legislative consent to it. That tells you everything you need to know about the gymnastic qualities and abilities of our glorious First Minister.
One of the things that is sad about this sad little Bill is that it is actually hugely radical in what it proposes. It will give enormous powers to the Scottish Parliament. It is devo-max, and as we have had reason to discover in our debates earlier today, it is devo-max on issues such as speed limits and so on to the point of absurdity. In this part we are dealing with the heart of huge changes that are being made, but which do not seem to be part of the debate in Scotland. Indeed, we are in an absurd position where the debate is about what further policies could be added when this Bill provides for them. Picking up on a point made by the noble Lord, Lord Foulkes, in one of his interesting newsletter blogs to his civil servant colleagues, I think that the Permanent Secretary in the Scottish Government described it as,
“lost in the mists of time”,
and no longer of relevance.
I have to apologise to my noble and learned friend. As always I had fantastic help from the Public Bill Office, but I do not think these amendments are brilliantly drafted. What I want to do is in effect get rid of the provisions that give the Scottish Parliament the ability to invent completely new taxes. Not only are we going to have a Scottish income tax, but completely new taxes can also be invented. They can invent a window tax and they can have a local income tax. My noble friend Lord Sassoon is shaking his head; I will happily give way as it might save some time if he is going to tell me that that is wrong. The only thing that stands in the way of those taxes being implemented is an Order in Council which has to be approved by both Houses of Parliament.
I am not going to start on another history lesson, but I thought that the whole point of this place—perhaps not this House but certainly the other place; and this place until 1911—is that it is not possible to raise taxes without the consent of Parliament. This provision in the Bill muddles that principle by allowing the Scottish Parliament to decide on a new tax—let us call it a local income tax, a window tax or something of that kind— and all it would require is the agreement of the Executive in London, which then has to put the proposals to both Houses of Parliament.
When it comes to the politics of this, is that really a proper check and balance on the ability to raise taxes on the people? It seems it would be politically extremely difficult in circumstances where, say, an SNP Administration decided to introduce a local income tax for either House to be able to oppose that with any political credibility. It is one thing to say, as those who argue for devo-max do, that the Scottish Parliament should be able to get all the revenues raised in Scotland and be responsible for expenditure; but it is quite another to provide for the invention of new taxes and for the only control on them to be an Order in Council, which is then subject to a resolution by both Houses.
In short, I do not believe that this clause should be in the Bill. I am very interested as to what new taxes the Government have in mind might be introduced by the Scottish Parliament, which it would fall upon the people of Scotland to pay. I am told that if you do an opinion poll in Scotland, there is great support for new powers—if you ask the people, “Would you like the Scottish Parliament to have new powers”, you will find there is a lot of support for that. However, if you ask the people of Scotland, “Would you like the Scottish Parliament to be able to invent new taxes, which would fall upon you?”, I wonder whether there would be the same level of support. If you asked them, “Would you like the Scottish Parliament to be able to invent and implement new taxes which you do not know about and which have not been discussed?”, I am not sure that that would command support. I find it extraordinary that this hugely radical change in the powers of the Scottish Parliament has not even been discussed in the Scottish media. I would wager that only a handful of people in Scotland are aware of it and of the implications.
This whole clause is not only unnecessary, it is constitutionally improper and I cannot for the life of me think why it should be there. I look forward to my noble friend telling me what problem this clause is meant to remedy and why it should be here. My amendment would simply prevent this happening without proper accountability. I think this is one of the most radical parts of the Bill and seems to be completely undesirable. I do not know whether Calman recommended it or not but I would be very surprised if such an open-ended provision was recommended, given that the Calman commission was so careful in its analysis. I will just forewarn my noble and learned friend of one thing. I am sure that in his briefing he will have lots of sentences that say, “This fulfils our manifesto commitment to implement the Calman proposal”. Well, there are other recommendations in Calman that are not in the Bill and which the Government have set their face against. So I would be careful about using that particular argument. I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux)
I advise the Committee that if Amendment 51A in this group is agreed to, I cannot call Amendment 51B due to pre-emption
Lord Sewel
My Lords, I rise to speak to Amendment 51A, which is in my name. The noble Lord, Lord Forsyth of Drumlean, is absolutely right when he draws our attention to the central constitutional importance of the clause. We are dealing with a fundamental constitutional issue—the power to create taxes, which is a defining characteristic of a sovereign parliament. At the moment, the new Section 80B proposed for the 1998 Act reads:
“Her Majesty may by Order in Council amend this Part so as to … specify, as an additional devolved tax, a tax of any description”.
Through this amendment, I want to ensure that any change in the tax powers of the Scottish Parliament will be subject to the scrutiny that you have with the primary legislative process rather than that which applies to secondary legislation. The Order in Council route is totally inadequate to secure the degree of political scrutiny that is appropriate and necessary. The granting of a power to enhance the taxing powers of a devolved parliament is not something that should be done lightly, casually or trivially. It should be done only through the process of primary legislation to ensure the absolute, measured, considered and examined scrutiny of any proposal. The order route is inadequate because we do not amend Orders in Council—this House is, rightly, reluctant to vote down orders and they see a very abbreviated form of parliamentary scrutiny.
Lord Forsyth of Drumlean
Is it not an oddity that this House is not meant to consider taxation at all and yet the Bill provides for this House to approve the order?
Lord Sewel
Yes, and also, if we look at the way in which this has developed, I do not know how we come to this order solution. If you go back to 1997, the tax-varying powers then were subject to a separate question in a referendum and were incorporated in the Scotland Act as primary legislation. The Government today are bringing forward a whole series of tax-raising powers to be given to the Scottish Parliament in primary legislation. Why is it suddenly decided that any new taxes that are not specified in the Bill are going not to be subject to primary legislation but only to what I consider to be the absolutely unacceptable method of secondary legislation and Orders in Council?
I mentioned the 1997 referendum, and we know there are amendments standing in the name of some colleagues dealing with the referendum on taxing powers. I am not in favour of a referendum on taxing powers—although I took a referendum Bill through this House, I am not awfully in favour of referendums. My concern is that taxation and the power to create new taxes are of such fundamental constitutional importance that we run a very grave danger if we devalue the standing of that power and use a way of obtaining them that may be convenient for the Government but is wrong. It must be the job of the United Kingdom Parliament to be able to scrutinise any proposals for new or additional taxes in any part of the United Kingdom, through the proper parliamentary process.
Lord Steel of Aikwood
I was going to go on to say that we are actually seeing a trend towards the attributes of a one-party state, where news bulletins are led by stories of what the dear leader has been doing today. That is a real danger.
There is also the question of vagueness of what independence really means for us financially. Until recently, the official position of the Scottish National Party was in favour of joining the euro, until the problems of the eurozone suggested instead that there was safety in keeping sterling, presumably with all the Bank of England controls. Some independence, that—not for them, apparently, the genuine independence of the Irish punt or the Danish kroner.
On the subject of Denmark, a former Foreign Minister of that country is a good friend of mine and a fishing companion. There was one occasion when the two of us went fishing in Iceland as a guest of the Prime Minister. My respect for them and their countries does not lead me to wish to see a Scottish Foreign Minister with similar limited global influence. I would rather have Scots such as Robin Cook and Malcolm Rifkind, both of whom I disagreed with but who wielded strength as Foreign Ministers of the United Kingdom. That is the proper role for Scots in future.
I am so glad that the noble Lord, Lord Martin, mentioned Trident, not in the context of defence policy but in that of economic and financial policy. The SNP’s little Scotland approach is best seen in its attitude to the Trident missile programme. We Liberals were never in favour of the so-called independent nuclear deterrent in the first place, and we do not wish to see it replaced. The SNP said that it would remove the base from Faslane to have it anywhere so long as it is south of Carlisle. My view is that until we succeed in getting rid of it altogether, it might as well stay where it provides many jobs and helps the Scottish economy.
I still believe that most Scots would like to see maximum devolution consistent with common sense, and I think that the noble Lord, Lord Forsyth, was right in describing opinion polls. That means substantially greater financial powers than in the clauses that we are now discussing. I regard this section of the Bill as only one small step in the right direction. It is not a new view of mine or one occasioned by the rise of the SNP. When I took office as presiding officer of the Scottish Parliament, I argued from day one that no self-respecting Parliament can exist permanently on a grant from another Parliament and that we should move to the point where the Scottish Parliament has the power to raise the money that it spends on all these devolved issues. This Bill is a significant but small step in the right direction.
Lord Forsyth of Drumlean
Can the noble Lord just say what new taxes he thinks the Scottish Parliament might invent using this power?
Lord Steel of Aikwood
I have no idea. The important point is that it should have the power to raise funds as it wishes for all the devolved issues. It is no good going on talking about refining the Barnett formula and changing the grant system. It is up to the Scottish Parliament to devise its own taxation methods and raise the money for its own purposes. That is what I would like to see happen, and this Bill moves us slightly in that direction.
Lord Kerr of Kinlochard
If the deficit is not important to the argument made by the noble Lord, Lord Sewel, what is the answer to mine? It is perfectly possible for the Scots, and reasonable, to decide the form in which they should be taxed.
Lord Forsyth of Drumlean
Perhaps I could help the noble Lord by asking him a question. If his position is that the Scottish Parliament should be free to invent any tax and raise it at any level as part of the devolved settlement, why do we need to bother with having both Houses of Parliament approving it?
Lord Kerr of Kinlochard
I agree that the Bill proposes a very eccentric procedure. I was going to go on to say that, first, on practical grounds, I would hope that no one would set up differential tax systems inside the United Kingdom. Secondly, I would not disagree with the argument of the noble Lord, Lord Forsyth, against the particular procedure for vestigial approval which is laid down here. My argument is on the point of principle of the noble Lord, Lord Sewel. Those who should be in the lead on the forms of taxation in Scotland should be the Scots; that seems to me to be clear.
I am disappointed with this bit of the Bill—
Lord Kerr of Kinlochard
Yes, that is reasonable. We certainly agree on the macro point. We disagree on whether there is a point of principle about forms of taxation. I would like to pick up on the other point made by the noble Lord, Lord Steel, about the Prime Minister's speech in Edinburgh. Here, I disagree with the noble Lord, who says that we should proceed to have the referendum as soon as possible, which would give us a couple of years to work out what devo-max means. I do not know why we do not put into this Bill what we think devo-max means, with a sunset clause. I follow the argument that the referendum should have only one question but there is a genuine problem in that the Sir Alec point made by the noble Lord, Lord Steel, certainly applies in Scotland. People up there do not really believe that the London Government intend, once one has had the referendum and if its answer is no to independence, to confer a further substantial degree of devolution.
Lord Kerr of Kinlochard
May I finish my argument? That is not widely believed up there. One could set out the definition that this Parliament believes would be right for further devolution. I do not expect the noble Lord, Lord Forsyth, to agree with me because he does not want any more, but the Government indicated that there would be consideration after the referendum of a further degree of devolution—your Prime Minister said it. I understand why that will not happen unless the referendum says no to independence—that is obvious—but I cannot see why one cannot specify that now.
Lord Forsyth of Drumlean
Perhaps the noble Lord can help me. He is quite right: I think this is a dreadful Bill which was introduced for political reasons, and that the best thing we could do with it is bin it—drop the whole thing and get on with the referendum. That is my position. However, it is a minority position, and we have the Bill and we are considering it. We are considering a clause on which the noble Lord, Lord Sewel, who after all was the midwife of the Scotland Act and believes in all this stuff, and I are agreed that it is a huge transfer of power. To me, that is devo-max.
I have no idea what the Prime Minister was thinking of when he said that there would be more devolution after it had been decided that Scotland would remain in the United Kingdom. I cannot think of anything that could be added that is not already in this Bill. This clause which we are considering, for example, provides enormous scope to introduce new taxes, so I would say that this is devo-max. The noble Lord is absolutely right that the people of Scotland do not know about it, because nobody is actually reporting it. We are all debating something that is already here in this Bill, and which was actually delivered by the previous Labour Government—with the support of my party, which I must say was very foolish. Having said that, what does the noble Lord, Lord Kerr, mean when he says that we should have something added? What would he add to this Bill that would be devo-max? Can he tell me?
Lord Kerr of Kinlochard
That is a very fair challenge and I have no complete answer. In respect of taxation, I would argue that devo-max should be precisely what the noble Lord, Lord Sewel, does not want: that the Edinburgh Parliament should be entitled to decide on the forms of taxation. There would need to be the macroeconomic control, which he and I would need to discuss, but the forms of taxation within a given tax take—or rather within a given deficit control, because that is where the control would be—seems to be something which should be devolved in principle. I have made my point and I do not see the point of principle here. I would argue that the difficulty with devo-max is: who is going to specify it? I cannot see Mr Salmond's interest in specifying devo-max, because he wants independence—
Lord Foulkes of Cumnock
Perhaps I can say a few words on this amendment, as one of the people whom the noble Lord, Lord Kerr, describes as being “up there”. I am living in Edinburgh, I am a resident, and I will be voting in whatever referendum we have. I am looking forward to it. I do not think of it as “up there”; it is where I live and what I am part of. This is the amendment on which the noble Lord, Lord Forsyth, and I are going to disagree—at last—because I agree with the noble Lord, Lord Steel. We need full fiscal responsibility in Scotland, and we need to move towards that. Some people call it full fiscal autonomy; I call it full fiscal responsibility.
Is it devo-max? As other people have said, I do not know what Salmond means by devo-max. If he means other functions such as welfare or pensions being transferred to Scotland, I am totally against that. It would be catastrophic and cause tremendous problems in breaking up the system that has existed for so long in the United Kingdom. However, full fiscal responsibility is different. Having been in the Scottish Parliament, I know that at the moment it has responsibility for spending the money but not for raising the money. That means that you are irresponsible, and that at any time when you do not have any money you blame Westminster and say that the Barnett formula is not giving you enough. This is the problem that the noble Lord, Lord Kerr, referred to: how do you get to full fiscal responsibility?
I agree with the noble Lord, Lord Steel, and we might both get vilified for this, that David Cameron was right. He was right to say that once Scotland rejects separation, and we must reject it, the door will be open for discussions. There will be a dialogue between Westminster and Holyrood about the new form of devolution. The Secretary of State for Scotland is right that we need that yes/no vote as quickly as possible so we can reject separation and move on to discussing what kind of devolution we want. We could have a referendum with devolution options, but it would be far better if the federalist, unionist and devolutionary parties were to work out an agreed formula for the new enhanced devolution and full fiscal responsibility through a convention—
Lord Forsyth of Drumlean
I am most grateful to the noble Lord for giving way. I am delighted to be able to disagree with him. Could he table an amendment on Report that includes the elements that he thinks would be added after the referendum that would provide more devo-max devolution? I cannot think of anything, and he has already reserved his position on welfare. What would it contain? This is already in the Bill.
Lord Foulkes of Cumnock
When we get to the Minister’s reply, I think we will find that it is not already in the Bill in the form that I would like. We need to work out exactly how much is needed to fund the planned expenditure of the Scottish Parliament and to look at ways in which that can be funded through taxes raised by the Scottish Parliament. Some people in Scotland, MSPs and others, including Peter Duncan of the Conservative Party, have come out with a scheme that they call devo-plus. I do not agree with it fully but it deserves looking at. It is one of a number of options that should be looked at for funding Scottish expenditure with income from within Scotland.
Lord Browne of Ladyton
I thought my noble friend Lord Maxton said that. I am sorry; it was my noble friend Lord Sewel. If I had had a private conversation with the noble Lord, I might have been able to reveal that beforehand. The noble Lord, Lord Kerr, in part of his contribution that was very helpful, blew that out of the water. States in the United States of America have, within the federal structure, the ability to raise taxes without being sovereign. Across the world, I am sure there are many other examples that I do not know about of devolved Administrations having the power to raise taxes within constitutions that deny them sovereignty. I am certain that I could find them if I had the research facilities available to me.
Lord Forsyth of Drumlean
I will not make a smart-alec point—although I should not say “Smart Alec” in this context in this debate—about other states that can raise taxes. I follow the noble Lord’s argument, which I absolutely respect. However, I respectfully suggest that he needs to distinguish between the ability to raise taxes and the ability to create new taxes. The point that his noble friend and I were making is that this clause gives the Scottish Parliament the power to create completely new taxes. His noble friend argued, as I did, that that is distinct from being able to raise taxes. There are states in the US that can set the sales tax but, as far as I am aware, do not have the freedom to invent completely new taxes. However, I might be wrong about that.
Lord Browne of Ladyton
Someone had to create the sales tax in the first place. I might be wrong but I do not think that in the United States the creation of a sales tax is a federal function that is then devolved to the states.
Lord Forsyth of Drumlean
I hope that the noble Lord might help me. Is he saying that he thinks this clause is too broad in its scope and that there should be some kind of constraint by way of criteria as to which taxes could be invented? As it stands, a wealth tax, a further tax on inheritance or a roof tax could be implemented, although a poll tax is probably less likely. Is he saying that, speaking for the Opposition, he favours some kind of procedure that would constrain the ambitions of a devolved Administration in this respect, or is he saying that this measure goes to the heart of the whole Bill and that it constitutes devo-max?
Lord Browne of Ladyton
I am not saying that this is devo-max; I am saying that this is the Bill. The Bill is a very significant piece of legislation and a remarkable advance in the potential devolution in Scotland. However, as the noble Lord has pointed out, it is misunderstood and has not been properly explained. Broadly, it is not supported or championed in the observations of those who have brought it to this Parliament. More specifically, it has not been championed by the Prime Minister, who has suggested in fact that it is just a small step and that greater steps can be taken in future.
The people who drafted the Bill and are responsible for it may not have intended to do this, but they have given us the answer to the challenge for the future post the referendum on the issue of separation. They may not know that they have given us the answer but they have. Now they need to build the other part of the mechanism that allows this Parliament—the sovereign Parliament—to play its proper role in deciding what the criteria are in advance of specific proposals of the sort of devolution that can take place. In other ways, they should spell out, as Michael Moore did in his evidence to the Select Committee, the criteria that need to be applied and would need to be met before a tax—either a new one or a part of the United Kingdom’s existing taxation—could be devolved.
We need to amend the Bill to provide that mechanism. I believe that it can be provided by regulation, which is why the amendment has been drafted in the way that it has. At the risk of boring noble Lords, particularly the noble Lord, Lord Forsyth, I do not think it is an issue of principle, once we establish the principle, as we will by passing the Bill, that taxation can be devolved in this way to the Scottish Parliament. It is a mechanism to make sure that that is done properly and in a way in which the various parts of this deal take their proper responsibilities. That is the bit that we are missing because this Parliament is entitled to be confident that any devolved taxes will be used for the benefit of the Scottish people and the union. It is for this reason that we believe the Government have a duty to enshrine conditions to this effect in some form of legislation—regulations would be quite sufficient. This would provide a clear regulatory framework that can be approved by this Parliament and then used flexibly in the future in the context of a changing settlement between the United Kingdom Parliament and the Scottish Parliament —between the United Kingdom and the people of Scotland.
I say to the noble Lord, Lord Sassoon, whom I welcome to our Committee’s deliberations—I do not know how much previous experience he has had of Scottish political matters, but over the next few hours he is in for a crash course—that the Scottish Affairs Select Committee raised these issues in its report on the Bill almost a year ago today. I therefore hope that having had the benefit of a year to consider the matter further—and I am sure the noble Lord has been thinking of nothing else—at the very least he will be able to provide this House with some sort of detailed explanation of the mechanism and criteria to be applied on the use of this power. If he cannot do so, it would be helpful if he provided us with at least some hypothetical examples of taxes that could meet such criteria.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, one thing on which I think we are all agreed is that we are getting to the heart of the Bill. There is a range of views about how significant the changes are in Clause 28, but we all recognise the importance of what we are discussing.
The Government are quite clear that the Bill delivers substantial new powers to the Scottish Parliament—powers that have been included as a result of careful and detailed consideration. I want to focus on what is in the Bill, not on what hypothetically might be in it. The Government have been clear that any consideration of further powers to be devolved is for after a referendum on independence. Let us therefore concentrate for now on what we have in front of us.
I should also say at the outset that as an intruder from outside Scotland and a Briton from elsewhere, as the noble Lord, Lord Browne of Ladyton, suggested, my observation is that to date devolution in Scotland, of which the Bill is part of a continuing process, has been delivered as a result of lengthy discussion, analysis of evidence and cross-party consensus. That was how the settlement was delivered in 1997 and that is how the measures in the Bill have been developed. I am grateful for the noble Lord’s confirmation at the outset that he believes that the tax-raising powers granted in this clause are appropriate.
Lord Forsyth of Drumlean
The tax-creating powers in the Bill, as the noble Lord acknowledged, were not recommended by Calman. A phrase, “specified taxes”, was put in there to deal with the uncertainties over an aggregates tax. No one has been consulted or is aware—as far as I can see, and that is what my amendment relates to—that the Bill provides for the creation of completely new taxes. I do not know where that came from. It is certainly not part of the Calman recommendations and has not been subject to any extensive discussion or consultation. Indeed, my noble friend Lord Lang, the former Secretary of State for Scotland, said that he was not aware of the issue until he looked at the Bill in detail—and he is one of the best-informed people in Scotland on this matter.
Lord Sassoon
If my noble friend would bear with me, we will get to this point and to other points he has made. If he wishes to repeat the points he has made previously, he can do so ad nauseam. However, I say to him respectfully that we have got the point loud and clear, and I will come on to it. As the noble Lord, Lord Browne, pointed out, the genesis of this power is in Calman. It is a power that has been debated and approved of by committees in another place in this Parliament, as well as in the Scottish Parliament—but I will come back to that. My noble friend completely mischaracterises the debate so far over this power to create new taxes.
We are discussing a number of amendments to an important clause, and I should therefore make sure that we are clear about the architecture of it before I come back to the heart of the arguments. Clause 28 inserts new Sections 80A and 80B into the Scotland Act. New Section 80A provides an overview of the new taxation provisions. New Section 80B introduces a power to add new devolved taxes to those devolved by Clauses 33 and 35, and makes certain consequential provisions applicable to devolved taxes.
Amendment 51A, tabled by the noble Lord, Lord Sewel, would remove new Section 80B. The amendment of my noble friend Lord Forsyth of Drumlean seeks to remove devolved taxes altogether from the legislative competence of the Scottish Parliament, thereby preventing it from legislating on all tax matters besides local taxes. The amendment tabled by the noble Lord, Lord Browne of Ladyton, and the noble and learned Lord, Lord Davidson of Glen Clova, would provide approval of the criteria and procedures under which new taxes will be considered for devolution by this Parliament before the power could be used.
I propose to outline briefly why the financial aspects of the Bill introduced in new Section 80A, and which I stress my noble friend Lord Forsyth’s amendment seeks to remove, will raise the accountability of the Scottish Parliament and benefit both Scotland and the UK as a result. I very much note what my noble friend Lord Steel of Aikwood said about the importance of accountability. After I have dealt with those issues, I shall address in more detail new Section 80B, the subject of the amendment of the noble Lord, Lord Sewel, and the arrangements that we propose for the approval of new taxes—the subject of the amendment in the name of the noble Lord, Lord Browne, and on which he seeks assurances. That is a critical element of the construct to which other speakers in this debate did not give proper weight.
New Section 80A introduces the finance clauses in the Bill. It grants significant positive new powers to Scotland, and I should outline the measures in the clauses and why they represent such an important and beneficial step for both Scotland and the UK as a whole. The Scotland Act 1998 specifies that tax policy, aside from local taxes, is outside the Scottish Parliament’s legislative competence. The changes made by the Bill that are introduced in new Section 80A will amend the Scotland Act to enable the Scottish Parliament to legislate on certain devolved areas of tax policy. The changes will give the Scottish Parliament a real stake in Scottish economic performance because a significant proportion of the budget for public services in Scotland will come directly from taxes set and raised in Scotland. Some speakers have suggested that it would be appropriate to go much further, but we are taking a significant step here. It will enable the full devolution of stamp duty, land tax and landfill tax and enable the Scottish Parliament to legislate for a Scottish rate of income tax.
Lord Sassoon
If the noble Lord will forgive me, we are coming to income tax under the next clause. I am sure that we will come back to that extensively and properly later. This is the enabling clause that enables the setting of the Scottish rate as well as the focus of the amendment on the power of the Scottish Parliament, with the agreement of this Parliament, and subject to safeguards—to which I shall come—to introduce new taxes.
I hope that the Committee will agree with me and the Government that these changes will enable the Scottish Parliament and the Scottish Government to respond better to the evolving needs of Scottish society and the Scottish economy; and that they will increase the Scottish Parliament’s accountability, as its decisions on public services will be directly related to decisions on Scottish taxes.
I see that the noble Lord, Lord Foulkes of Cumnock, is nodding in agreement; I hope that that will continue right through this section of the Bill. No, he is saying that it will not; no doubt we will come back to football clubs and other matters later, but we agree so far.
Thirdly, these changes will bring decision-making over the issues that affect them closer to the Scottish people, which we believe is appropriate. New Section 80B will create the power for the Scottish Parliament to introduce new taxes, subject to the agreement of both Houses in this Parliament. The noble Lord, Lord Sewel, was quite right to draw attention to the approval process. He seems to want to draw it even more tightly but, on the other hand, he points out—partially in answer to my noble friend Lord Forsyth, who seems to think the approval process to be woefully inadequate—that the clause states that it must have the agreement of both Houses in Parliament, which is not necessarily the case with all taxes as it stands at the moment.
Lord Forsyth of Drumlean
On that point, perhaps my noble friend could deal with the argument here. If I may say so, he has put it as if it is not a major constitutional point. As a Member of the House of Commons, I was taught that the main purpose of the House of Commons was to vote means of supply; that is its main function. Therefore, the creation of new taxes is a matter which is dealt with thoroughly by primary legislation through a Finance Bill, which enjoys certain privileges. Those matters do not come to this House because this House has no part to play in matters of taxation, following the efforts of the previous Liberal Administration.
It seems to me to be a hugely novel concept that the House of Lords should be involved in approving the creation of a new tax. Can my noble friend explain why that is included in the Bill?
Lord Sassoon
My Lords, again, I will get there in the logical flow of the argument, if my noble friend will permit me. He does not make new points; I have them on board; I will try to address them, but I think we should go through the logical steps of exactly what the construct will be, because this is a critical question. I do not dismiss it.
Why is it so important? The power will enable the whole of an existing tax to be devolved and allows for the creation of a completely new devolved tax. That is clear. It is a power recommended by Calman but which the Government are not in a position to devolve at this time so, to that extent, it is necessary to implement Calman.
Lord Sassoon
Again, perhaps I may be permitted to go through the complete steps needed to introduce any new tax.
The Government believe that we have a proportionate and appropriate package. We need to take all the measures in the round. In this case, to address the specific question of the role of your Lordships' House—I will not be drawn into taking all the points out of order, but the question of the role of the House of Lords is important—it is because the power addresses the constitutional question of who should be able to set a tax, not the rate of the tax nor the structure. The question of the introduction of the new tax is indeed one in which this House should have a role, which is included in the Bill and the clause.
Lord Forsyth of Drumlean
I apologise for interrupting my noble friend again, but this is central. For the sake of argument, let us say that this power is used by the Scottish Parliament to introduce a mansion tax or a wealth tax. Is my noble friend saying that this House could consider and reject it and that that is practical politics? It seems to me that part of the 1911 settlement was that this House did not get involved in those matters. In a sense, I am here arguing for more power for the Scottish Parliament, not less, because I think that this has not been thought through.
Lord Sassoon
The answer is yes and yes to my noble friend. The introduction of new taxes is a constitutional change to the United Kingdom and a power which will be introduced. I will go through the steps one by one, because we have not debated them all fully so far this evening. One of the steps is for the order to be approved by both Houses of Parliament; the Government believe that to be appropriate. So that is a yes. There may be questions about whether orders can be amended and other questions, but emphatically it is our intention that the order to implement a new tax has to be approved in both Houses. That is clear. My noble friend may look surprised, but that is the case. I hope that that gives him significant comfort.
Lord Forsyth of Drumlean
Perhaps I may ask my noble friend to consider the politics of this, as opposed to what the rule book says. I suggest that we look at the difficulty that the Government have at the moment in deciding whether to legislate on a referendum. That is clearly a matter for Westminster and not for the Scottish Parliament but the Government are doing cartwheels trying to find a way to use Section 30 because they do not want to be seen to be dictating to Scotland. If the Scottish Parliament, with this power, decides to create completely new taxes—perhaps putting up the top rate of tax to 60 per cent or removing the exemption for unearned income or whatever—does my noble friend really think that it will be practical politics for this House or even the other place to say that that is not going to happen because under criterion 4C it will influence macroeconomic policy? That is not real politics. A genie is being let out of the bottle here and we should not deceive ourselves about how radical this is as a proposal. I hope that my noble friend will address this for what it is and not for how it is presented.
Lord Sassoon
My Lords, my noble friend’s examples concern changing the rates of existing taxes rather than new taxes. However, I think that it will work fine. With the process that has led up to these clauses in the Bill, Calman has looked at potential taxes for devolution. There has already been considerable discussion in Scotland and between Scotland and the UK Government. When it comes to the potential for new taxes to be added, I have explained the criteria which the UK Government have set down. On procedure, we are working closely with the Scottish Government to clarify the process that requests for new taxes will go through before they are brought before both Houses of Parliament. We have an administrative process to be agreed by the Joint Exchequer Committee, which brings together Ministers from both Governments. Therefore, I see a process here—
Lord Sassoon
Of course we await legislative consent, but there have been many detailed discussions; there have been the reports of committees in both Parliaments and the noble Lord knows perfectly well—better than I—where things stand. As to the question of what fits the criteria, I am not going to speculate about what future taxes might come forward, but one has the useful case study about the Scottish land transaction tax which fits the criteria very well. That points out precisely how other measures could come forward in future.
Lord Forsyth of Drumlean
The Minister said this is following Calman: it is not following Calman at all. As the noble Lord, Lord Browne, pointed out, Calman recommended a power to deal with specified taxes. Why is the Bill completely open-ended on the subject of new taxes? If there are particular taxes that would fall within the criteria, why not say what they are rather than leave it open-ended? My noble friend criticised me for giving an example of existing taxes; I could think of other examples. Suppose Mr Salmond invents a new tax on oil and gas landed in Scotland, for example. One could think of all kinds of taxes, but to present this as arising from Calman is completely wrong. Calman suggested a limited ability in respect of those taxes which it was not appropriate to do at the moment for various technical reasons. The two I would think of are air passenger duty, which is actually not included in the Bill, and the aggregates tax. This, however, is much, much broader and more far-reaching. Why are we going for such an open-ended position?
Lord Sassoon
My Lords, recommendation 3.3 of the Calman report states:
“The Scottish Parliament should be given a power to legislate with the agreement of the UK Parliament to introduce specified new taxes that apply across Scotland”.
In Calman, certain taxes were specified. In this Bill, we are building on that and building in a procedure which is proportionate and would require the agreement of both Parliaments in future to deal with specified taxes—taxes that might be specified in future. I have explained to the Committee what the criteria are. We have an amendment that sought to tease out what they are and I explained them. The critical one relates to the macroeconomic effect. It is entirely right that we take the Calman recommendation and think about how there might be new taxes to be specified in future. It is not some open-ended invitation for the Scottish Parliament to introduce things. There are very clear safeguards, including an appropriate parliamentary procedure in London.
Lord Forsyth of Drumlean
Will my noble friend allow me one more go, at the risk of tedious repetition? Would my noble friend be happy if he thought that this power to invent new taxes was not circumscribed by the criteria, which, as he says, are set out in a Command Paper, which of course can be altered, and which is not part of the legislation? If there were no criteria there at all, would he be happy? If I suspect that the answer to that question is no, does he not see that the political reality is that those criteria will matter not a jot in circumstances where this power is conferred on the Scottish Parliament? That is the nub of what is exercising people on both sides of the House.
I do not mean this in any patronising way, but my noble friend has had a very distinguished career in the Civil Service and in banking. All of us have got battle scars from Scottish politics and know how it operates. He should take the fact that we all agree on this as a clear signal that these criteria that he is hanging on to will not exist in real politics if he proceeds in the way that he plans.
Lord Sassoon
My Lords, while I am not steeped in as many years of Scottish politics, maybe the benefit of being a bit of an outsider and coming at this with fresh eyes means that I am able to observe a little of the history of this. Notwithstanding the attempt to say that tax proposals have not been brought forward in any way that has had discussion and consensus to date, including the ones that are the subject of this Bill, the history gives me confidence that this is a construct that will work. This is based on what we have seen in the devolution of powers to Scotland to date, and in the process that has led up to where we are with this Bill—which is not perfect and so other critical steps must be gone through. I do not see this obstacle that my noble friend is putting up. However, we will have to agree to differ on that.
Lord Forsyth of Drumlean
My Lords, such is my respect for my noble friend Lord Howe, who has been waiting patiently, that I am not planning to respond to some of the points. I am most grateful to my noble friend the Minister who has dealt with some pretty intensive questioning very well, although I have to say that he has not satisfied me.
I shall just pick up on the last point he made. He presents me as saying that this has all come as a surprise to people. I have to say that I think that what this clause actually does has come as a surprise to people in this Chamber, and it will certainly come as a surprise to Members of the House of Commons because they never discussed it properly. That is what we are here for, and I think that there is more to be done. Of course there is still an opportunity in the debate on whether Clause 29 should stand part to explore these arguments further.
I am not satisfied with the response; none the less I do not propose to test the opinion of the Committee. I am pleased to withdraw the amendment.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(12 years, 9 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank the noble Lord, Lord Browne, and my noble friend Lord Shrewsbury for giving us an opportunity to look at this part of the Bill that specifically relates to devolution in respect of air weapons.
The amendment of the noble Lord, Lord Browne, seeks to remove the exception the Government have made in the Scotland Bill to the devolution of powers to license air weapons. Clause 11 provides that the Secretary of State retains the powers to make rules under Section 53 of the Firearms Act 1968 to specify weapons as “specially dangerous” and so require a firearms certificate, and also to make orders under Section 1(4) of the Firearms (Amendment) Act 1988 to prohibit specially dangerous weapons.
The contributions of the noble Lord and my noble friend indicated that this is a complex issue and I take the general point about the legislation being in different Acts. I therefore fully recognise why the noble Lord wishes to explore fully why the Government are not devolving the powers that are part of the exception in Clause 11. This was discussed in another place. In many respects, the issue turns on the way in which the Firearms Acts are drafted and the need to ensure that all specially dangerous weapons are dealt with on a consistent basis across the United Kingdom. Like the noble Lord, we should perhaps go back to the report of the Calman commission, which recommended that only air weapons should be devolved—although we know that there are those who would wish devolution to be extended to all firearms. I know that other members of the Calman commission are present. I do not remember us having any particular discussion of subcategories of air weapons that might be described as specially dangerous.
The Government believe that it would be confusing and potentially damaging to create a situation in which much of the body of firearms legislation in Scotland could differ substantially from that in England and Wales. Calman, too, said that there could be,
“serious disadvantages in having different, uncoordinated policies”,
and therefore does not recommend devolving generally the subject of the Firearms Acts. That being so, we need to ensure that there is a common framework for the most lethal weapons across Great Britain, and this will include what are known as Section 1 firearms, such as hunting rifles, which require a firearms certificate issued by the local police.
In accepting the Calman recommendation that air weapons should be devolved, we looked to do that by adding an exception to Section B4 in Schedule 5 to the Scotland Act 1998, which currently reserves firearms by reference to the subject matter of the Firearms Acts 1968 to 1997. Those Acts cover regulation of the manufacture, possession, handling, purchase or acquisition, sale, distribution and transfer of firearms. They distinguish between different types of firearms in certain respects and make different provision for different types, including air weapons. Air weapons are defined in the current legislation in accordance with Section 1(3)(b) of the Firearms Act 1968. This refers to an air rifle, air gun or air pistol which has not been declared to be specially dangerous by rules made by the Secretary of State under Section 53 of the Act, and is not a prohibited weapon.
I claim no expertise or experience whatever in firearms, but I understand that currently, air pistols generating a muzzle energy in excess of six foot pounds and other air weapons generating a muzzle energy in excess of 12 foot pounds have been declared to be specially dangerous for these purposes. This means in practice that an air weapon which has been declared as specially dangerous becomes subject to the requirement to hold and abide by a firearms certificate. It therefore ceases in practical terms to be treated as an air weapon under Section 1(3)(b) of the Firearms Act 1968. Control of these types of weapon need to remain reserved, which is why the power to make rules under Section 53 of the 1968 Act will remain those of the Secretary of State.
I reassure noble Lords that we are not looking to restrict the way in which the Scottish Parliament exercises its legislative competence in respect of air weapons. I acknowledge that there is a drafting complexity in Clause 11, but in practice the Scottish Parliament will be able to regulate air weapons in the way in which it chooses.
Lord Forsyth of Drumlean
My noble and learned friend simply stated that the regulation of those more powerful weapons needed to be reserved. Can he explain why?
Lord Wallace of Tankerness
Because that takes them into a category for which licensing is required. We took the view, as did Calman, that there are categories of firearms which should not be devolved, those which might be described as more powerful, more dangerous, and that the particular air weapons which are the subject of our debate fall into that category and have more in common with firearms covered by other parts of the Firearms Acts than they do with other air weapons. It is because of their potential lethality. That is why there seemed to be a distinction between them and air weapons which are the subject of devolution.
Lord Forsyth of Drumlean
I am genuinely trying to understand this. If the Scottish Parliament was to have power to regulate those “less dangerous” air weapons, how would it do that without having a licensing scheme? If my noble and learned friend’s argument is that they are required to be part of a licensing scheme, I do not understand the logic of it. If the Government’s view is that the Scottish Parliament ought to have this responsibility, is the Minister saying that it can only have responsibility for weapons if they are not very dangerous? It seems to be a little illogical to me.
Lord Wallace of Tankerness
With respect, it is not illogical at all. A point I will raise when I respond to my noble friend Lord Shrewsbury is that this is devolution of a power. How the Scottish Parliament chooses to exercise that power, if at all, is a matter for the Scottish Parliament. I am trying to find the relevant part of the Calman commission report, which dealt not with the point about especially dangerous air weapons but with the more general point about firearms.
The commission indicated that the UK Government of the day had,
“argued that any ban on a firearm which it is currently legal to possess would need to be underpinned by a compensation scheme. It argues that where such firearms are currently unregulated”—
which is the specific case for air guns—
“it would be difficult to prevent them being legally and cheaply acquired in one jurisdiction and passed off for compensation in another which had introduced a ban. This is not an argument against devolution itself as much as it is a caution to a devolved administration making difficult policy decisions it believes to be in the best interests of its citizens. Whilst there would undoubtedly be practical considerations and potential difficulties in any divergence of approach to firearms control they do not preclude the development of robust mechanisms for managing cross-border problems, information sharing and good communications”.
The Calman commission did not think that the case had been made for the devolution of firearms generally. The point is that especially dangerous air weapons are, in effect, firearms, licensed across Britain on the basis of what I think is widely recognised as a strict, world-leading regime. The Government do not wish to undermine that strict framework for the most dangerous weapons. Air guns that are the subject of devolution in this clause are not subject, at the moment, to what might be described as that strict licensing regime. That distinction is made, which is why the exception to the devolution of air weapons is being made in this clause.
Lord Forsyth of Drumlean
I am grateful to my noble friend. Perhaps it might be better if I made a speech rather than asked questions, but I am struggling to understand the logic here. The Minister has read from the report by the Calman commission, which was chaired by Ken Calman, for whom I have considerable respect; he was my Chief Medical Officer for Scotland. I am not sure that he is actually an expert on firearms regulation. The Minister’s quotation from the report seems to be saying that this would be very difficult to administer and very expensive. That is not an argument against giving Scotland the power, because it might not use it. However, not giving it the power creates the kind of uncertainty that my noble friend Lord Shrewsbury talked about.
Lord Wallace of Tankerness
The noble Lord, Lord Browne, quoted other parts of the report, which said that, notwithstanding that, there would be cases where devolution would be appropriate. Indeed, the commission identified particularly Scottish circumstances as to why air weapons should be devolved. That was the commission’s recommendation, which not only the present Government accept and are trying to implement through the Bill; the previous Government also agreed to the principle of devolving the power to regulate air weapons to the Scottish Parliament in the White Paper that they published in response to the Calman commission.
I am trying to make the point that some categories of air weapons are currently subject to a licensing regime because of their power. We still seek to maintain that reservation for that category, subject to the Secretary of State’s powers under Section 53 of the Firearms Act.
Lord Wallace of Tankerness
I am not sure that that is the case. However, I think my noble friend is right that the power in the Bill does not relate to more powerful weapons. Especially dangerous air weapons are already licensed. We are providing Scottish Ministers with a power to put in place a licensing regime, as the noble Lord suggested, for air weapons, which are not regulated under the current GB framework. A very simple distinction has been made between weapons that are currently regulated and those that are not, and the devolution of power relates to those that are currently regulated.
Lord Forsyth of Drumlean
I am sorry; it is very bad to interrupt my noble and learned friend so often but I just do not understand this. I can understand the concept—the wish—to devolve to the Scottish Parliament the power to regulate firearms, and the wish to give to the Scottish Parliament the power to regulate air weapons. However, I do not understand the concept that the Scottish Parliament should be able to deal with only some air weapons and not others. That will create monumental confusion and we could end up with a system where the less dangerous weapons are subject to more control than the most dangerous weapons, which would be absolutely absurd. How would we avoid that?
Lord Wallace of Tankerness
I think that my noble friend is seeing difficulties where they do not really exist. The clear view was taken by the Calman commission, by the previous Labour Administration and by the present Government that firearms as a whole should not be devolved. We are trying to explain—and I apologise to your Lordships if I am not doing so sufficiently well—that the weapons that under Clause 11 are not being devolved fall more closely into the category of firearms than unregulated air weapons, which are being devolved. Therefore, we are maintaining a consistency with regard to weapons that are currently the subject of a licensing regime vis-à-vis weapons that are not currently the subject of a strict licensing regime.
My noble friend says that that could lead to a stricter licensing regime. I have to concede that that is technically possible if the Scottish Parliament sees fit to do that, although I would have thought that some of the compelling arguments made by my noble friend Lord Shrewsbury may well mean that a bit of common sense will prevail when it shapes these powers. That is the essence of devolution. If a power relating to air weapons is devolved, as long as it is consistent within the confines of the Scotland Act it is a question of how that power is exercised.
Lord Wallace of Tankerness
My Lords, I seem to recall going over some details during the Calman commission. It must happen already when shooting parties come from other parts of the European Union. The trouble is that I cannot remember what answer the Calman commission got. I had better not mislead my noble friend and I shall write to him giving him chapter and verse.
Lord Forsyth of Drumlean
My Lords, I am still not persuaded by my noble and learned friend. Perhaps I am getting old and cynical. He served on the Calman commission and it is interesting that none of the other members of the Calman commission has felt able to contribute to this interesting debate and explain how they came to this conclusion.
One remembers the genesis of the Calman commission. It was an initiative led by the Labour Party, which the other unionist parties joined in with in order to prevent the case for independence and the nationalists being able to gain control of the Scottish Parliament. In that sense, it fell at the first fence. The idea was to look at what further powers beyond this Scotland Act could be devolved to Scotland. If I may address my noble and learned friend as a member of the Calman commission, one has the sense that he was scrambling around trying to think of things which could be devolved to the Scottish Parliament.
Something that worried me about my noble and learned friend's response to my noble friend Lord Shrewsbury was that he kept relying on what the Calman commission recommended. The commission made recommendations to the Government. It was the responsibility of the Government to consider them, decide what made sense and put forward their proposals. We are not talking here about the Calman commission's proposals; this is a government proposal. I respectfully suggest to my noble and learned friend that as a Minister in the Government he should be able to defend it.
I cannot for the life of me understand why it would be desirable to have another licensing system for air guns in parallel with the one that exists south of the border. I can see the argument. The noble Lord, Lord Browne, rightly pointed to some horrible and tragic cases that occurred in Scotland. However, there is nothing unique about Scotland that means that these cases could not also happen in England. The corollary is that the Government should look at the licensing of air weapons throughout the United Kingdom. If one is going to pass laws—as my noble friend Lord Shrewsbury pointed out—one ought to be conscious of how one is going to enforce them. If we get to a position where air weapons are either illegal in Scotland or are subject to a different regulatory regime from that which exists in England, how will that be enforced at the border? Will we have guys on the A74 checking whether the precise nature of a weapon meets the regulations that have been passed by the Scottish Parliament?
Faced with these challenges, my noble and learned friend resorted to the argument that, “We are only devolving the power. The noble Lord, Lord Forsyth, is putting forward arguments about what might occur if the Parliament chose to exercise that power”. However, this Parliament should not create the legislative possibility of creating great confusion and difficulty in the administration of firearms legislation. The clause would be better if it gave the Scottish Parliament the power to deal with all weapons. If my noble and learned friend's argument is that some of these weapons are firearms, it becomes very difficult to see as one goes down this road how one would defend not giving the Scottish Parliament complete authority over all firearms, in which case we would have different regimes on different sides of the border—and that would make controlling firearms almost impossible. We seem to be creating a difficulty.
My noble and learned friend accused me of seeing problems where they did not exist. I do not see why the current regime would not be capable of dealing with the concern about air weapons, and I can see how this clause will create great confusion and difficulty. As my noble friend Lord Shrewsbury pointed out, air weapons do not have serial numbers. It is asking a lot of a policeman to look at an air weapon and decide which category it is in. This looks like the product of a political fix. There was great public concern about air weapons; it was a big issue. The Calman commission said, “We must do something about air weapons”. It looked at the practicalities and found that they were very difficult, so we ended up with a camel designed by a committee.
I urge my noble and learned friend to look at this again. It is a very serious matter and I do not believe that the Bill addresses the practicalities involved. I support the noble Earl’s very modest amendment, which does not seek to attack—as I have just done—the basis of the legislation in the clause.
Lord Browne of Ladyton
My Lords, I am grateful to all noble Lords who took part in what developed into a debate that was much more interesting than my introduction. From my experience in your Lordships' House, that did not surprise me. I am grateful to the noble Lord, Lord Forsyth, who in one of his early interventions brought a degree of clarity that I had not managed to achieve to a point I had tried to make. I disagreed with some of his other interventions, but we will have an opportunity to debate the genesis and value of Calman at a later stage and in proper circumstances. However, in his most recent intervention he may well have pointed out where the problem lies in relation to a coherent approach to this. It is a matter of regret that we do not have a Home Office Minister at the Dispatch Box to respond to the debate.
The story that lies behind this is that repeated incidents in Scotland of the nature of the tragic death that I referred to generated a desire to regulate air weapons. The noble Viscount, Lord Slim, pointed out very wisely from his informed background that air weapons are all potentially lethal. There was a discussion between those who represented the Scots, including Members of Parliament and the Home Office, which moved toward the possibility of regulation on a UK level, but then stopped. The frustration generated by the Home Office's unwillingness to proceed exacerbated the discontent in Scotland. An indication that something would be done was snatched away. The key difference is between weapons that are regulated and those that are not, because those that are not have the potential to be lethal and have been proven to be lethal in a number of cases. This has caused the Scottish people to say, “We want our Parliament to have the power to do something about unregulated weapons and to regulate them”. That is the set of circumstances to which Calman responded. Far from having to look around for powers to devolve, the significant cross-party lobby for the regulation of air weapons in Scotland was waiting for the opportunity of Calman or something similar to articulate its arguments.
Lord Forsyth of Drumlean
I apologise if I gave the impression that the regulation of air weapons was not an issue. When I said that they were looking around for powers, I meant that they were looking around for powers to devolve. There certainly was an issue. Another example, which we will come to later, is giving the Scottish Parliament the power to decide speed limits. We have ended up with a Bill that gives the Scottish Parliament the power to regulate the speed of motor cars but not of HGV lorries. That is absurd. The distinction between different categories of air weapons is a similar example.
Lord Browne of Ladyton
I am grateful to the noble Lord for his intervention. I understood the rhetorical point that he made. In relation to the issue that we are debating, there is a very strong desire in Scotland to have air weapons regulated. The Scottish people would have been happy if there had been a prospect of a system of regulation that would have been applied to the whole of the United Kingdom. In the absence of that prospect, the Scottish people say—and I agree with them—that if the power can be given to the Scottish Parliament, this should at least have the opportunity to regulate air weapons and to deal in some way with the obvious menace of their misuse. I am grateful to the noble Lord for allowing me to make that point in this context. Otherwise, what may appear to some to be a trivial piece of devolution, or to others to be something that is delivering unnecessary complications, will not be seen in its proper context.
I am grateful to the noble and learned Lord for the care he took in responding to my probing amendment on these matters. Characteristically, he engaged with the issue and articulated what I thought was the Government's argument for this exception to the devolution of responsibility for all air weapons. He will appreciate that I need to study his response, because I am not familiar with this area of law and I know how complicated it is. I incline to the view that if the distinction is caused by the existing licensing regime for some weapons—when I anticipate that there will be a licensing regime for all weapons—I may not be satisfied and may have to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
Lord Forsyth of Drumlean
My Lords, I welcome this clause, and indeed when discussing the Scotland Bill offstage with my noble friend, he has tried to persuade me that it is a great Bill because it would bring back control of Antarctica to the Westminster Government, although “control of Antarctica” is perhaps putting it too strongly. Of course, another week has gone by and the Scottish Parliament has still not debated the report of its own committee, which suggests that legislative consent should not be given to this clause. So as my noble friend the Duke of Montrose has pointed out, it is difficult to surmise why the committee might now wish to retain responsibilities in respect of Antarctica, and the previous committee quite sensibly took the view that Antarctica should be a matter for the Westminster Government and the Foreign Office. As far as I know, Donald Trump has no plans to build a leisure facility in Antarctica, so I cannot imagine why the First Minister would think that his writ should run to Antarctica.
As my noble friend indicated, I had the pleasure of going to Antarctica a year ago, and it really is a spiritual experience. It is quite amazing. It is the only part of the planet that is completely unspoiled and the only example of an international treaty that I can think of which has actually worked. I think that that treaty is now up for renegotiation and renewal and it is absolutely clear that this clause is required because it should be obvious to everyone involved in those negotiations what the British interest is. I hope that the British interest will rest with ensuring that Antarctica remains a place where scientific endeavour and experiment can be carried out and which is protected from exploitation.
Lord Foulkes of Cumnock
My Lords, the noble Lord is being far too modest in saying that he went on an expedition to Antarctica. He climbed Mount Vinson, the highest mountain there, and he sent many of us dispatches which we received with great interest. He also raised hundreds of thousands of pounds for charity, and I think he should be commended for all of that.
Lord Forsyth of Drumlean
I am most grateful to the noble Lord. I think that he and I need to be careful because we will soon be appearing in the nat blogs as an example of an unholy alliance. I have suggested to my noble friend that we should form a roadshow and go around Scotland extolling the virtues of the union. The only other explanation I could think of for why the Scottish Government are now pressing for some control over Antarctica is that perhaps they think it might be a good idea to pass regulations keeping me there on ice for the winter in order to avoid open debate. I am most grateful to the noble Lord, and I thank him for the cheque he sent towards the fund for Marie Curie Cancer Care.
I support this clause because it is entirely sensible. I suspect that it was an oversight because there is a very serious job to be done. While I was in Antarctica I met some scientists who were drilling holes in order to measure movement in the ice-cap, but one of the problems they faced was that they kept on hitting gas and oil. There are considerable mineral resources in Antarctica and I hope that they will stay there for a long time so that Antarctica is preserved. I hope that the British Government will take very seriously their responsibilities in this regard.
My noble friend the Duke of Montrose also mentioned the Scott expedition and the centenary of Scott’s arrival at the South Pole—only to discover that Amundsen had beaten him there. We all celebrate the courage that Scott and his party showed in their disastrous attempt to get back to safety from the South Pole.
So I welcome the clause. Of all the clauses in the Bill, it is the one that I can endorse with most enthusiasm. I am most grateful to my noble friend for ensuring that the interests of Antarctica are in good hands.
The Earl of Mar and Kellie
My Lords, does the clause in any way inhibit Scottish universities’ polar research? My noble friend has been to the Antarctic. In 1902, William Speirs Bruce led the Scottish national Antarctic expedition in the steam yacht, “Scotia”, its research ship. The “Discovery” was built in Dundee. Speirs Bruce also explored the Arctic, and one can still find the remains of Brucehaven in Spitsbergen. Perhaps I may ask a question that is vaguely similar to one asked by the noble Lord, Lord Forsyth. Are we trying to prevent Scots universities exploring or researching in Antarctica but not in the Arctic?
Scotland Bill
Lord Forsyth of Drumlean Excerpts(12 years, 9 months ago)
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Lord Foulkes of Cumnock
My Lords, it is my pleasure to move Amendment 22, which would prevent the Scottish Executive and the Scottish Parliament from imposing discriminatory fees on students at Scottish universities who are resident in England, Wales or Northern Ireland. The noble Lord, Lord Forsyth, has a similar amendment, Amendment 24. I must insist that he tabled it quite separately from my amendment and without any collusion whatever. I am saying this because his off-the-cuff comment earlier about the roadshow of the “toxic two” has been picked up north of the border and is already causing some interest. Both amendments were tabled with the same purpose.
Lord Forsyth of Drumlean
This is the first recorded occasion when the Scottish media have paid attention to anything that was going on in this House.
Lord Foulkes of Cumnock
I think that things are moving up the scale, although they are taking some time to do so. We are making a little bit of an impact there now.
I want to make it clear that in moving the amendment I am conscious of the sensitivities in relationships between Westminster and Holyrood, and between the UK Government and the Scottish Government. We have found in many of our discussions that this is a sensitive area in which we have to tread very warily, and I would hesitate to say anything that suggested that the UK Parliament was imposing its will upon the Scottish Parliament.
I say that having been a Member of the Scottish Parliament for four years. A number of noble Lords who have participated in these proceedings have also been MSPs—including the noble Lord, Lord Steel, who was Presiding Officer, the noble Lord, Lords, Lord Selkirk, Lord Watson and others who have participated, and, of course, the noble and learned Lord, Lord Wallace, the Minister who is to reply. Those of us who have been in Holyrood are aware of those sensitivities and we move with caution.
However, this Parliament has some responsibilities. The action of the United Kingdom Government in imposing very high fees precipitated this issue in the first place. I know that this is one area where the noble Lord, Lord Forsyth, and I might not totally see eye to eye. I am very pleased to see present the noble Lord, Lord Sutherland, who was a distinguished vice-chancellor of my old university, Edinburgh—not when I was a student, I hasten to add; he is not nearly that old, and neither am I. His experience and deep knowledge of the university sector will be very helpful, and that demonstrates some of the value of this Chamber.
We also have a wider responsibility for the European Convention on Human Rights and the equality legislation, as epitomised in the Equality Act. We therefore have to bear some responsibility for and take some interest in discrimination and equality. What has been not just proposed but agreed by the Scottish Executive and Scottish Government is tremendously unfair discrimination against students from England, Wales and Northern Ireland who go to Scottish universities. It really is quite disgraceful. It is astonishing, when you think of it, that students from Lisbon, Madrid or Berlin will all get in free to Scottish universities, but students from Belfast, London or Cardiff will have to pay fees.
Lord Forsyth of Drumlean
My Lords, I speak to my Amendment 24. Just to make sure that people realise that the noble Lord, Lord Foulkes, and I agree only on some things, I respectfully remind him that it was the Labour Government who introduced tuition fees.
I remember that particularly well because the only time I have taken a Bill through this House was when the much missed late Lady Blatch was our Front-Bench spokesman. She was ill and asked me to take the Bill through the House. The rather splendid noble Baroness, Lady Ashton, who has sadly been taken from us to other duties, was leading on the Bill. I said to her, “Look, I have a problem”. There was an issue about gap year students having to pay more. I said, “If you will amend the Bill and allow for gap year students, I won’t waste your time and be unnecessarily difficult, but there is another thing I need you to do. I need you to help me to make sure that we do not get a vote on the principle of tuition fees”—which the Liberals were very keen to achieve—“because I'm being told by the powers that be in our party that we have to vote against tuition fees and most of the people on my side would be in the wrong lobby”. So we attempted to avoid having a vote because most of my colleagues rightly recognised that the future of universities depended on having tuition fees.
This is not a debate about the principle of tuition fees. Indeed, my amendment does not mention tuition fees. The Bill is about the exercise of power—we have taken back Antarctica; we are giving other things—and it defines the powers of the Scottish Parliament. The new clause in my amendment is intended to make clear that the Scottish Parliament is free to exercise its powers, but it cannot exercise its powers in a way that discriminates against people from England, Wales and Northern Ireland relative to people in other European states. That is the real wickedness involved in what is happening now: Greeks, Germans, Poles and French all get the same deal as the Scots, but English, Welsh and Northern Ireland people do not. When I say Northern Ireland people, Welsh people and English people, this is not about nationality but about the place where you live.
As I said to someone from the BBC the other day, “You work for the BBC. You get posted to Glasgow. You've got three children who are aged, say, 14, 15 and 16 and they want to go to university. You get rung up by the director-general and told that you have to move to Manchester. That could cost your children £100,000 in fees because they will no longer be eligible to go to some of the best universities in the country”—I declare an interest as a graduate of St Andrews—“such as St Andrews, Edinburgh or Glasgow for free. The moment you move to England, they will have to pay. This is just a complete nonsense. Of course, you could accept a job in Madrid, or Paris or anywhere else in Europe—but not in England, Wales or Northern Ireland”. It is an absurdity.
The real wickedness comes when you say in a reasoned way to Alex Salmond, “This is not fair”. The response you get is: “If Scotland is independent, the English will get the same deal as the Greeks, the French and the Germans”. That is not good enough. I hope that my noble and learned friend is not going to get up and give the same, lame arguments about how this is what devolution is about. No, it is not. Devolution is about making decisions in Scotland in the interests of Scotland. It is not about discriminating against people from the rest of the United Kingdom in a way which was never envisaged during the passage of the Scotland Act through this House.
I am sorry that the noble Lord, Lord McConnell, is not in his place. Last week, when we were discussing the Bill, he came up with a brilliant image when, in trying to explain the apparently irrational behaviour of the First Minister and his separatist colleagues, he said that it is a bit like tenants who want to get a move from a bad estate to another estate: the first thing you do is upset the neighbours. This is about upsetting the neighbours, and upsetting the neighbours it is. There is real anger about this.
I stood recently in a rectorial campaign in St Andrews—I only got 900 votes, which is actually not bad for a banker and a Tory these days. The winning candidate was very good indeed. I spent a week in St Andrews with the students. There you have, side by side, students working very hard, much harder than I ever did when I was at St Andrews, in a university which has been transformed. A third of the students are English, a third are Scottish and a third are European or international. The Scottish students will pay nothing. The fees are going up to £9,000 a year and it is a four-year degree, so that is £36,000 if you are English. The European students are paying nothing. They are all working side by side.
The other thing that struck me was that St Andrews just looks the same as it did—most medieval towns do. The restaurants and the pubs are the same. The students are certainly much more focused. However, whereas in my day there were no students working in the restaurants and the bars, there now are. They need to do so in order to make ends meet. It is quite divisive and wrong to have students from different parts of the United Kingdom faced with substantial borrowing and debt, or no debt, simply because of which part of the United Kingdom they live in. I believe that this is a deliberate policy to create anger. There is genuine anger and resentment, not least on the part of those students who feel that they are being given a better deal relative to their colleague than they perhaps deserve.
There is also anger on the part of parents. I suggested to someone who shall remain nameless who was at St Andrews with me that they might like to make a contribution to the university in its 600th anniversary year. She said, “Not on your life! Not while my children are not able to go to St Andrews without having to pay these enormous fees”.
So it is quite wrong. It would be entirely appropriate for the Government to restrict the powers of the Scottish Parliament so that it cannot operate in this way on any area of policy. As the noble Baroness, Lady Liddell, a former Secretary of State for Scotland, pointed out, the Barnett formula is extremely generous. The spending per head on education is about 20 per cent higher. It really is adding insult to injury to ask the English to send more money per head north of the border on education for the privilege of seeing their children treated less generously than people from Greece.
If the Prime Minister says that he will defend the union to the last fibre of his being, here is a test. I ask my noble friend to ask the Prime Minister to look at this, and ask him seriously whether we can go on allowing this to happen. This is very timely. Hitherto, the fees have been at levels of £3,000 a year, so it would be £12,000. Now they are going up to £9,000 a year, so it is a huge imposition upon these students and is building enormous resentment. I hope that my noble and learned friend will give this some consideration.
A third party is very angry about this: the universities. I am delighted to see in his place the noble Lord, Lord Sutherland, with all his experience of higher education in Scotland. The universities are the poor mugs who have got to set the fees with this difficult and divisive position for their students, and who take all the flack for its consequences. I am not going to press this to a vote today, because I want to give my noble and learned friend time to think about it and come back at a later stage, but I hope that he will take it seriously. This is the first opportunity that we have had since the introduction of tuition fees and top-up fees to debate this matter. It is widely resented around the country. It is a deep, deep injustice which needs to be put right.
Lord Sutherland of Houndwood
My Lords, I thank my two preceding speakers for their kind remarks. I run the risk of being drawn into this love-in going on across the Benches and I do not especially wish to be, so I hope that they say something nasty about me at some point.
I support the two amendments. Neither is perfect, and they need a bit of further thought, but I particularly welcome their pairing. Amendment 22 illustrates very well the general principles implied in Amendment 24, which are what I wish to speak about. As a declaration of interest, I am a former principal of Edinburgh University. I have links with most of the universities that I will talk about, but that of course includes many south of the border that are our friends, colleagues and competitors. There is a view across the whole country on this which must be taken it account.
The problem, which has been well illustrated, is clearly the differentials in treatment of students from what is now called the RUK group—there is now a formal title in Scotland for the “rest of the United Kingdom”—and students from the European Union. This is disproportionate. The differential between them and the way in which they are now being separated out is unjust and is not something that we happily live with on either side of the border, or in the university system across the country.
This division started quite some time ago. There was a trickle of complaints when fees were originally raised through this mechanism but they were small sums of money, comparatively speaking. This trickle grew into a pretty strong stream when the target hit £3,000 and is now a vast torrent. There will be much irritation and anger, and a great degree of thinking twice about where to study as a result of this policy.
The figures in question come out of a series of decisions taken on the administration of higher education which started in 1992, when the two funding councils were separated. On grounds of consistency, I have to say that I opposed that separation. Indeed, if you read the relevant speech of the Member for West Lothian in the other place at the time, you will see that he quotes me as being against it. That was because I began to worry then about the kind of separation that will take, and has taken, place. The two funding councils are proceeding well according to their own administrative arrangements. I do not blame the accounting officers or members there. They have financial settlements imposed upon them by government, not least by this House.
The division that occurred then has grown in practice, perhaps in a way in which none had envisaged and certainly in a way that most of us regret. The issue today is not whether you can turn the clock back completely. Devolution has happened; I accept that. The issue is whether we want the kind of devolution that produces this sad differential between students from different countries and different areas within the United Kingdom.
Lord Browne of Ladyton
My Lords, it is a pleasure to follow the noble Lord, who put the nub of the issue facing the Government and the Committee very forcefully and clearly. Once more in this Committee, the noble and learned Lord is caught in a pincer movement between my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Forsyth of Drumlean. Yesterday I was in conversation with a Scottish broadcast journalist, who shall remain nameless. He suggested that they were rapidly becoming the Chuckle Brothers of Scottish politics. No doubt as our deliberations go on the divisions between them will become apparent, although many of us know where they lie in any event.
In raising this issue, my noble friend Lord Foulkes brings to your Lordships' House a matter that is perceived by many in Scotland and, indeed, in this Committee, to be a cause of great unfairness. There can be no doubt about that. There are large numbers of people in Scotland who do not think that this is a fair way in which to treat students from England, Wales and Northern Ireland, and for good reason, because Scottish people pride themselves on the progressive nature of their thinking and on their values. Instinctively, they think—and they are right—that it is unfair that students who come to Scotland from England, Wales or Northern Ireland are treated differently from Scottish students or students from the European Union. The difference is obvious. We have the benefit in our deliberations of the summary by the noble Lord, Lord Sutherland, of the short history of this difference.
It is undoubtedly true that the fact that there are different systems of student support and student fees in different parts of the United Kingdom means that there is discrimination. While it has existed for some time, that discrimination has, by recent decisions of the UK and Scottish Governments, been driven to new heights, and consequently it is now much more apparent than it was. As my noble friend’s amendment and the support for it show, it raises real issues about whether within the United Kingdom we can continue to operate such a discriminatory regime without addressing its inherent unfairness. To that extent, my noble friend is to be congratulated because he focuses his arguments very sharply, and it is clearly right to debate them, as the contributions we have heard thus far make clear.
Whether it is appropriate to have this amendment in this Bill is a matter that the Minister will no doubt address. In one view, having devolved education, including higher education and student support, to the Scottish Parliament, it is a matter for it, and we should live with the consequences, which should be reflected in the political circumstances in which it operates. Whether there is some strong constitutional reason for leaving this to the Scottish Parliament, the amendment proposed by my noble friend raises real practical issues, and the debate that took place in the committee in the Scottish Parliament on the order that set out the specification of these fees encapsulated that. These practical issues will be reflected in the budget for Scotland. I do not think that any noble Lord who has contributed to this debate seeks to set the budget for the Scottish Government or, indeed, the Scottish Parliament but, effectively, that might be what we were doing if we dealt with this issue.
Lord Forsyth of Drumlean
My amendment is different from that of the noble Lord, Lord Foulkes, and we will no doubt come to it, but I have a simple, straightforward question for the noble Lord. Do the Opposition think that as part of the devolution framework, of which they were the midwives or architects, it is right that the Scottish Parliament should be able to exercise any power which results in discrimination against people resident outwith Scotland relative to people in the rest of the EU? It seems that there is an important principle here, of which fees are an illustration.
Lord Browne of Ladyton
I have not been long in your Lordships' House, but I have learnt to be wary of the noble Lord’s simple questions. It is a pretty straightforward question and, when we were sharing responsibility with the people of Scotland for the devolution settlement, it was certainly never envisaged that this discrimination against young people in relation to higher education would be a consequence. I do not think anybody imagined that. In fact, I suspect that had the issue of internal discrimination in the United Kingdom been raised, we would have set our face against it in the original Act.
However, the politics of Scotland have moved on and, as the noble Lord, Lord Sutherland, and my noble friend Lord Foulkes spelt out very clearly, decisions have been made about student fees and the way in which we support higher education, and they have had consequences. One of them has been a significant potential financial disadvantage to Scottish universities, which could have untold detrimental consequences in the longer term for their ability to hold on to the best of their staff or to provide the level of education that they pride themselves on having provided, in some cases over centuries. That was an issue that had to be addressed and those who have looked at the way in which this discrimination has come about and how it was debated in the Scottish Parliament will know what the issues about funding are. It may be possible to address them in other ways but I do not know the detail of that. I am not supporting the way in which they have been addressed here. It is right that we should debate them but I am not entirely certain that this is the right way to do it.
Lord Forsyth of Drumlean
I am most grateful to the noble Lord and I am completely out of my depth because I have never really understood the legal profession. Is he saying that a situation existed where there were rights of audience that were unique to Scots that would not apply in England, but would apply to the French, the Germans and everyone else in Europe? Is that the position? If that is the case, rather like me I am sure he would believe in the single market and, advancing that, would regard this as anomalous.
Lord Browne of Ladyton
The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.
Going back to my noble friend’s amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.
I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O’Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.
Lord Browne of Ladyton
I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.
Lord Forsyth of Drumlean
Perhaps I can help the noble Lord. It is great to have a rebuke from the Opposition Benches. I was actually thinking that it would be easier for the Opposition to accept a point of principle in respect of devolution rather than accept a restriction on the policy freedom that was implied for the Scottish Parliament. I was just trying to be helpful.
Lord Browne of Ladyton
I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.
As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.
I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.
My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.
Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.
Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.
Lord Wallace of Tankerness
European Union law could not be changed unilaterally. I know that my noble friend proposes in his amendment how we might address it, but that is not the same as changing European Union law, which I am sure he would be the first to accept.
When the package of free tuition for Scottish domiciled students was introduced in January 2000, my noble friend Lord Stephen—or Mr Nicol Stephen MSP as he then was—as the deputy Minister for Enterprise and Lifelong Learning, indicated that the proposals were produced based on the best advice available given the risk of challenge by other EU nationals. He went on to say that he was disappointed with the legal advice and would like it to be different, but that was the position in terms of having to operate within the confines of European Union law. I would not wish to suggest who gave that advice because I am sure it was sound, but given that we had to operate within the confines of European Union law, that was how we got into that position. Let us not be under any illusion that it was something that the then Scottish Executive did because they wanted to do it. It was because they were obliged to do it.
Lord Wallace of Tankerness
I agree and accept that, but we are perhaps kidding ourselves to think that those students in Scotland who chose to go to a university very close to home were not also taking into account financial considerations; albeit that they were fortunate to have so many universities of considerable quality on their doorsteps. If you came from the part of Scotland that I came from, nowhere was on the doorstep. I pay particular tribute to my noble friend Lord Forsyth for what he did when he was Secretary of State for Scotland in giving an impetus to the idea of the University of the Highlands and Islands, which, as my noble friend Lord Maclennan has indicated, has now come to fruition. It has taken a somewhat long time but it was worth it. I know how keen he was on it. It has made higher education available on the doorsteps of many people who otherwise would not have had that opportunity.
I never particularly like, and do not think this debate lends itself to, technical issues, but the amendment from the noble Lord, Lord Foulkes, is deficient in a number of ways. It reserves to the UK Parliament the power to make variations in fee levels between different parts of the United Kingdom. I am sure that it is not really quite what he was intending. I acknowledge and appreciate that my noble friend Lord Forsyth has sought to couch this in a way that is more related to an issue of principle rather than focusing on tuition fees. However, as the noble Lord, Lord Browne, pointed out, with the possible exception of rights of audience, you would be hard pushed to actually think of any other circumstance where this principle might arise. I will clarify the position on rights of audience. I clearly recall that it certainly was the case. I know of many practising advocates now at the Scottish Bar who are also at the English Bar—and some, indeed, at the Northern Ireland Bar—as well as some solicitors trained in Scotland who now work in firms in England. It does seem easier at a practical level to go between jurisdictions than it was hitherto. The point of my noble friend’s amendment is very much focused on tuition fees, which he did not attempt to disguise in speaking to his amendment.
However, one should always be aware of the law of unintended consequences. One possible consequence of his amendment is that the Scottish Government could address this by paying the tuition fees of every student from England, Wales and Northern Ireland. My noble friend says that would be fine. Obviously it could be budgeted and other things would have to give way to fund that. However, it would suddenly mean that it would be hugely cheaper for students from England, Wales and Northern Ireland to attend universities in Scotland. My noble friend says that is ridiculous, but of course that would be the consequence.
Lord Forsyth of Drumlean
That is the position for Greeks, German, French, Italians and everybody else in Europe—that it is considerably cheaper for them to come to Scotland, where they get a free education relative to England. It is a ridiculous argument.
Lord Wallace of Tankerness
It is not a ridiculous argument at all, because it is very difficult if you are a student coming from Greece, where English might not necessarily be the language in which you would more readily study. It is far simpler if you are coming from Carlisle to go to Edinburgh than it would be to go to Birmingham. I can assure my noble friend that when tuition fees were increased in England and variable fees were brought in, in around 2004, there was clear evidence—which I was presented with as the then Minister with responsibility for higher and further education—that that would have a considerable impact on cross-border flow, and that was something that we had to address. Indeed, we did address it.
Lord Foulkes of Cumnock
I will deal with that very point. I started by saying very much what the Minister has said in his last few words. I am very aware of that sensitivity. I will come back to this in a few minutes, but I am really grateful to the Minister for agreeing to take this away and reflect on it. When he expresses the view to his colleagues, I hope he will make it clear that this is an all-party, cross-bench, overwhelming, united, passionate and powerful message from the House of Lords. We have had people from all the parties, with lots of graduates from Scottish universities and other universities, all powerfully talking in one direction. That is a message to get over: we may be non-elected, but some of us have been elected in other places for long periods and have a lot of experience. I hope that message will get through.
I will make two points before I come to my last general point. First, on unintended consequences that arise, the noble Lord, Lord Forsyth, said this was a question of domicile, not nationality, which is absolutely right. Let me tell the Committee of one of the unintended consequences. Early last year, a Tory Peer—I will not name him—told me that he already knows of relatively well-off people who are buying up flats in Edinburgh to establish domicile there, so that they will not have to pay fees. That is the kind of thing that happens—and no, it was not the noble Lord, Lord Forsyth, saying that. Just as others have said, those who are relatively well off might pay the fees while others can get what I might call a domicile of convenience, so as to not pay them. They will eventually sell the flat, or whatever, and manage to reap some profit on that.
My second point is on what the noble Lord, Lord MacGregor, and, again, the noble Lord, Lord Forsyth, said about the Barnett formula. There is an amendment tabled for later in this Committee from my noble friend Lord Barnett himself—I call him Lord Formula—to have this revised. He has wanted that done for some time. We know that, per capita, it is exceptionally generous to Scotland. That is why the Scottish Government and the Scottish Parliament have been able not just to keep free higher education but free prescriptions and free personal care as well, all of which is building up tremendous resentment south of the border. There is a feeling here that the taxpayers south of the border are paying for all those better services. We heard that expressed in a previous debate in this House by Members from England, and it is a very strongly held feeling.
I urge the Minister to think about the consequences. There is of course another way of dealing with this, which is how Mike Russell, the Education Minister in Scotland, wants to deal with it. He wants to end the anomaly by stopping allowing European students in for free. He wants to go to Commissioner Vassiliou and say, “Let's have this changed so that we don’t have this obligation”. I do not think he will succeed in that—I think it will be impossible for him to succeed in that—but let us think of what he is trying to do. He is trying to make it financially difficult not just for English, Welsh and Northern Irish students but for European students to come to Scottish universities. My noble friend Lord O'Neill spoke about the Caledonian closet. Can your Lordships imagine Scottish universities reverting to what they were centuries ago when Glasgow, for example, had just students from around the Glasgow area? They would become narrow, introverted and isolationist universities and not in the old tradition of Scottish universities. I hope that we will not move in that direction.
The Minister was genuinely helpful and I hope that he will take it away, as he said, and discuss it. I listened very carefully to my noble friend Lord Browne. I think that he supported me in principle and that he will take it away to look at in more detail. I will help him in that task. The noble Lord, Lord Forsyth, asked the Minister to talk to the Prime Minister about it. Can I add the Deputy Prime Minister, just to make sure that it is all squared with both parts of the coalition? Will the Minister also talk to the Scottish Government about it and say that there is a strength of feeling, there are anomalies and there may be other ways around it? Will he ask them to consider the options for ending an unfair and discriminatory arrangement? We have some time until Report stage to do that. We are not going to finish this Committee stage until late in March so we will probably not get to Report until April.
I hope that the Minister will go away and talk sincerely to them. I know that he is busy with other things, but I hope that he can take some time out to talk to people about this anomaly, which clearly upsets so many people, not just in this Chamber but, far more importantly, outside it, and try to find a fair and equitable solution. On that basis, I shall withdraw the amendment.
Lord Forsyth of Drumlean
My Lords, I thank the Minister for his response to the debate which was very generous, giving what a beating he was subject to during it. I always used to say of my late learned friend Nicky Fairbairn that if I were on a murder charge I would have him defend me. In the absence of Nicky, given that my noble and learned friend made a good job of a pretty limited set of arguments, that accolade may fall to him. We do not need to think about the future to see what is going to happen in the future. Only this week the UCAS figures were published. They show, surprise surprise, that more Scottish and European students, but fewer English students, are going to Scottish universities.
I feel a bit alarmed by the interests that were declared by my noble friends Lord MacGregor, a former Secretary of State for Education, and Lord Sanderson. I suppose I ought to declare a grandson, whom I am taking to the rugby on Saturday.; he will be supporting England and I will be supporting Scotland. He is only 13, but I would not like to think that his choice of university should be in any way limited by where he lives in the United Kingdom.
I do not normally disagree with my noble friend Lord Flight, but he has made some remarks about Irish universities. I ought to declare another interest: my youngest daughter went to Trinity College, Dublin. When she decided to go there, I thought that it would cost me an arm and a leg but it was free because there are no fees in Ireland. The consequence of that has been that a number of English students go to Trinity College, Dublin, but the university limits the number that it will accept and the result is that now you need to get four As, I think, in order to be able to go there. A distortion is being created not just in residency or wealth but also in the ability of the students. Only very able students from Europe are able to get into these universities.
I do not know whether or not it is legal to have a quota, but it is a remarkable argument. “Independence in Europe” was the slogan, and the whole idea of Europe—which, I confess, has been distorted—is that it is an open, single market where you have free movement of labour. That is the attractive part of the idea. It seems to be a complete distortion to argue that we are in favour of a single market throughout Europe but not within the United Kingdom. That argument will lead to fragmentation, which is precisely why Mr Salmond and his friends support it.
I will not detain the Committee; we will return to this. However, I want to pick up a couple of points that the Minister made. It is not right that an English student wanting to go to a Scottish university will to have to pay the same fees, because in Scotland we have four-year degrees. Personally, I would be very sad to see the end of the four-year degree system, but that may also be an unintended consequence of the distortion that has been created.
The Minister, speaking from the Dispatch Box, said something which absolutely horrified me, and which I hope will not be the general policy of the Government. He said that it would not be appropriate for him to comment from this Dispatch Box on the policies of the Scottish Government. Excuse me—this is part of the United Kingdom. The devolution Bill—the Scotland Bill—gave powers to the Scottish Parliament to exercise, but the powers to legislate on these matters remain with us. It is entirely appropriate for Ministers at the Dispatch Box to comment on the policies of the Scottish Executive—not Government, Scottish Executive—particularly if they affect the people of the rest of the United Kingdom. That is the kind of principle that I would expect to hear being enunciated by Mr Salmond and the separatists. It is the duty of this House to look at the consequences of the Scottish Executive’s policy and their impact not just on Scotland but on the rest of the United Kingdom. I hope that my noble friend will take this away and consider it very carefully indeed. There has not been a single speech in support of the current position. I believe that if we were to divide the Committee and people knew what they were voting for, there would be a jam in one of the Lobbies and the Minister would be searching for tellers. This matter needs to be looked at very carefully.
The noble Lord and I did not confer on this issue at all. We both tabled amendments because we are both aware of the feeling on this matter. I put down my amendment as an amendment of principle because it seems to me that the principle of devolution should be that policies which affect Scotland are made in Scotland and that the Scottish Parliament should be responsible for them, but that in so doing—this is an important principle—people in the rest of the United Kingdom should not be disadvantaged vis-à-vis other European Union citizens. If I had put down an amendment that said the Scottish Parliament should have the power to legislate in a way which discriminates against people in England, Northern Ireland and Wales but not other EU citizens, it would have been laughed out of court. That appears to be the position of the Government—that they are prepared to have a status quo of that kind.
I do not see this as being something that might have unintended consequences; it seems to me to be central to the whole philosophy of devolution. I find myself in a very surprising position in having to explain the philosophy of devolution as I have not been a strong supporter of it because I thought that it would lead to exactly the difficulties which we are now encountering. However, that is water under the bridge. If we are to maintain the United Kingdom, we have to make it work. Setting boundaries and a framework seems to me a more appropriate way of going forward than limiting the scope in particular areas of policy. But in whichever direction we go, we need to resolve this problem one way or the other. One way of dealing with it would be to say that the fees of those students who go from England to Scottish universities are picked up by the Department for Education and that the money is taken off the block grant to the Scottish Parliament. There is a whole range of ways of doing it. I think that would probably be the most provocative way of doing it. There are other ways of doing it but I urge my noble and learned friend and his colleagues to think carefully about the best way of doing it, perhaps as my noble friend Lord Maclennan said, in consultation with the Scottish Government. We cannot go on like this.
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Lord Forsyth of Drumlean Excerpts(12 years, 10 months ago)
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Lord Forsyth of Drumlean
As an amendment to the Motion “That the House do now resolve itself into a Committee on the Bill”, to leave out from “House” to end and insert “declines to consider the Bill in Committee until Her Majesty’s Government have laid before Parliament a report on the results of the consultation they launched on 11 January on Scotland’s constitutional future and until the Scottish Parliament has passed a further Legislative Consent Motion in respect of the Bill”.
Lord Forsyth of Drumlean
My Lords, I begin by thanking my noble friends the Leader of the House and the Chief Whip for their courtesy in dealing with the first part of my amendment, in so far as a timetable Motion has been brought forward to ensure that those parts of the Bill which are concerned with matters that are subject to consultation will be dealt with at a later stage. I am grateful to the usual channels on all sides of the House for ensuring that that happened. It is a happy remedy to the problem that was created by the consultation paper setting a date of 9 March for responses.
Consultation papers on referenda seem to be a bit like buses: just when you are not expecting any, two come along. We have a competing consultation paper from Alex Salmond and the Scottish Executive, which was launched yesterday in no less grand a place than the Great Hall of Edinburgh Castle, which in my day was used only for state and non-controversial occasions. It would be a bit like the Prime Minister launching a consultation paper on a matter of controversy in the great hall here at Westminster—something I know he would never contemplate doing.
I am afraid that I have a number of questions for my noble friend and for the Government on the second part of my amendment, which deals with the issue of legislative consent. Perhaps I may dwell for the moment on the consultation paper that has been released by the Scottish Executive. That has a deadline for responses of 9 May, which is after this Session of Parliament is likely to have ended. The Chief Whip on the opposition Benches is shaking his head. Perhaps it may be possible for us to continue discussions on the Scotland Bill beyond 9 May, with his agreement—I think not.
I am very concerned about this competing consultation paper. First, it proposes an absolutely rigged question on independence. It is a loaded question; those who were listening to the “Today” programme will have heard the advice from a completely impartial US expert which confirms that. The question invites the answer “Yes”. That the First Minister is suggesting that loaded question, and that the Electoral Commission, which I am delighted to say he has now agreed should be involved, should be unable to opine on the question, makes me very concerned about the First Minister’s ability to deliver a referendum campaign that would be fair and balanced let alone legal.
What is being proposed in the consultation paper that has been released is not a referendum at all, and what the First Minister is proposing is the most expensive opinion poll in history—it will cost £10 million. It will not be a decisive referendum, because the authority of the Westminster Parliament would be required to achieve that. He is planning on having a very expensive opinion poll; and if he succeeds in getting a result of yes, he would enter negotiations with the Government, and people would then discover what they had been voting for in his referendum. That seems quite the wrong way round. There is an opportunity for us to amend the Bill to ensure that we have a properly conducted and fair referendum that will be decisive, to bring this matter to a conclusion, and to ensure that all the arguments and information are made available to the voters in advance.
As for this consultation paper, I am also concerned about the Government’s attitude—I would like to have a response from the Minister—both to the question and to the fact that the Electoral Commission’s role is to be rigged. The commission will not be able to carry out its duties, as it did most recently in the referendum on AV. Not only was the Electoral Commission responsible for that referendum but the chief executive was the accounting officer. It seems to me that that should also be the position in a matter as serious as deciding whether to break up the United Kingdom.
Not only does the consultation paper propose that there should be a rigged Electoral Commission: the position on campaign expenses is also being rigged. For the Scottish parliamentary elections, each political party was able to spend £1.5 million. The consultation paper proposes that the sum should be reduced to £250,000 per party. I wonder if that is because there is one party in favour of breaking up Britain and at least three against, and this is an attempt to limit their ability to put the argument. So we have a rigged question, a rigged role for the regulator and rigged expenses. On top of that, there is the suggestion that there should be a rigged franchise.
I dwell on this at length to emphasise how important it is that we ensure in this Bill that we have a proper process in place, so that at the end of the day, however people vote in Scotland on breaking up Britain—yes or no—no one can say that it was not fair and the result was not reached in a proper manner.
It really is extraordinary. Certainly when I was Secretary of State I was conscious that I was a Conservative—in many ways I felt that I was in opposition all the time I was in the Government—but I was also conscious that, as Secretary of State, I had a wider duty. On looking at this consultation paper, I am afraid to say that the First Minister has betrayed the trust which has been put in him as First Minister, and he appears to be putting his party’s interest before his country’s interest while posing as a champion of national interest.
One other point that we have to discuss, which relates to legislative consent, is the whole question of so-called devo-max. The consultation paper suggests that there could be a second question on that. Whatever your views on this, and I am not a fan, it would undoubtedly change the nature not just of how business is treated in Scotland but of how business is treated here. In effect it would create an English Parliament and a federal parliament. That is a matter for the United Kingdom as a whole, and if we are to have a referendum on devo-max, whatever it is and however it is defined, it is something for a referendum for the whole of the United Kingdom. Therefore to suggest that a question on devo-max should be added to a referendum on independence is again a deliberate attempt to rig the thing in order to split those who are opposed to breaking up Britain. Once more, I think that that is the purpose.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
Without Moses!
Lord Forsyth of Drumlean
I do not think that Alex Salmond would like being compared with Moses. After all, Moses never got to see the Promised Land. However, on reflection, perhaps my noble and learned friend is right.
One other aspect of the consultation paper is that he wants to rig the franchise and give the vote to 16 and 17 year-olds. My researchers tell me that there are only nine countries in the world that give the franchise to 16 and 17 year-olds, two of which are North Korea and Cuba, both of which have leaders with a high opinion of themselves.
I am not noted for carrying a flag for the Scottish Parliament but, to be serious, there are some very important recommendations here, on some of which I have tabled amendments so that they can at least be debated. I do not agree with all of them, but some of them are perfectly sensible. For example, this Bill provides for the control of speed limits in Scotland to be devolved to the Scottish Parliament. I think that that is daft, because you would cross the border and suddenly there would be a different speed limit. But it has been agreed—it is in the Bill and I do not want to question it. However, the committee of the Scottish Parliament says that it should not give legislative consent unless the Government agree to change the Bill, which at the moment allows the Scottish Parliament to set the speed limits for cars but not for HGV vehicles. It seems a little odd that we are prepared to devolve responsibility for motor cars but not for HGVs. I have tabled an amendment to which I hope my noble and learned friend will give fair consideration at a later stage. There are other issues, too, which should be considered.
I know that my noble and learned friend is agog as to whether I am going to press this matter to a vote. In order to avoid having to do so, I have tabled an amendment on the issue of legislative consent which says that if within two months of Royal Assent for this Bill we have not had legislative consent from the Scottish Parliament to those provisions which relate to its responsibilities, then the Bill will fall, and only those provisions which do not require legislative consent will remain. I hope that my noble and learned friend, after the consultation period has been concluded, and given the evidence of a lack of good faith on the part of the First Minister, will consider amending the Bill to provide for a fair and proper referendum to be conducted. In those circumstances—if the Scottish Parliament did not give legislative consent—we would be left with a Bill that simply provided for a referendum. I beg to move.
Lord Foulkes of Cumnock
My Lords, it is never easy to follow the noble Lord, Lord Forsyth, particularly when you agree with him. Like him, I am very glad that the Government tabled their Business Motion on Tuesday and that we agreed it, because if they had not, I would have supported and voted for the Motion of the noble Lord. It would probably have been the first time that I had done so, but it would have been with enthusiasm and alacrity.
Some of my friends warned me against allying myself with the noble Lord, Lord Forsyth, saying that he is toxic in Scotland. I know that the poll tax which he was associated with was not very popular in Scotland, but I take the simple view that even a Tory is not always wrong. Then, when he or she is right, we should support them; and I think that the noble Lord is right here. I sincerely commend the Prime Minister—I very seldom do that—and the noble Lord, Lord Forsyth, on their clear, unequivocal and dedicated support for the union, because it is not in their narrow party interest. If they were looking after their narrow party interest, they would want to get rid of Scotland, with all the Labour MPs who come to the United Kingdom Parliament.
I say to my colleagues, with great sincerity, that I am sorry that some of them seem afraid of working with the Conservatives and the Liberal Democrats on this campaign to protect the union. Of course we will get jibes from Salmond and the cybernats but that is because they do not want us to work together and to be united. That is why they are saying, “Oh, you are working with the Tories. This is dreadful. This is awful”. I am sure that Members opposite will understand that that carries some resonance, in Scotland in particular. However, I was four years in the Scottish Parliament and I remember that it was Annabel Goldie and the Scottish Conservative MSPs who sustained Alex Salmond. So it is all right for him to work with them when it suits him, but he turns on us when we consider doing so.
Lord Forsyth of Drumlean
Does the noble Lord recall that I shall always be grateful to the Scottish Nationalists for bringing down a Labour Government and enabling Mrs Thatcher to become Prime Minister.
Lord Foulkes of Cumnock
Indeed. That is something else we agree on. Like the noble Lord, Lord Forsyth, we Labour people keep reminding them of that treachery as well. The only good thing about it was that it enabled me to get elected in 1979, but that is another story.
A few years ago I asked one of the most right-wing Thatcherites, George Mathewson, who said that the only person who had done anything good for the Scottish economy was Margaret Thatcher, why he was now supporting the SNP. I could not understand it because he was a real hard-line Tory. He said, “Because I want to keep you Labour people out in Scotland”. That is why he was doing it and, no doubt, that is why Souter, Farmer and others are as well.
I wish to take this opportunity to urge us all, unionists, devolutionists and the Liberal Democrats—who ought to be federalists—not to be fearful of Salmond. The Liberal Democrats need to rediscover the enthusiasm for federalism contained in their manifesto and I was glad to see Simon Hughes at least talking about devolution within England. I have known Salmond for a very long time, since before he was a Member of Parliament. Of course he is cunning, able and a gambler—but he is not infallible. Already we have seen that he is unable to answer some of the searching questions about the reality of independence. When he is asked about the euro or the pound and about defence—when he is challenged on these issues—he is found wanting. We should challenge him at every opportunity. In particular, he wants to muddy the water with the argument between devolution—or devo-max, whatever they call it—and independence by pretending that there is very little difference; that you can move quietly and easily from maximum devolution to independence. Nothing could be further from the truth. There is a huge, vital difference and we must remind people in Scotland of that difference. That is why the first question—and it must be the only question—is whether or not Scotland should remain part of the United Kingdom. The noble Lord, Lord Forsyth, is right—Salmond is proposing a fixed question. The question should be: “Should Scotland remain part of the United Kingdom, yes or no?”. That is the honest, sincere question but Salmond is trying to muddy it. Once we decide—as I hope we will—that Scotland should remain part of the United Kingdom, then of course we can have a detailed debate about how much devolution. We will no doubt discuss that, hold different views and then come to a consensus on it.
Lord Wigley
Of course the definition of “independent” is certain to be central to the debate, but all that argument will not be on the ballot paper. The ballot paper has to have a question that reflects the debate that has taken place, and I have no doubt that there will be a debate in detail about the implications of an independent country. The noble Lord, Lord Forsyth, raised the question regarding a referendum possibly not being valid if it is organised from Scotland. However, as we well remember from the debates of the 1970s, the referenda on the then proposed assemblies for Scotland and for Wales were consultative referenda, as any referendum is in the context of our Parliament.
Lord Forsyth of Drumlean
I apologise for interrupting the noble Lord, who is being very generous, but we have just had a referendum on AV which I criticised in this House because, in fairness, it was a binding referendum. It is not true to say that every referendum has been consultative. The difficulty with Alex Salmond’s referendum is that it is simply consultative, but we need to resolve this matter. For example, the Royal Bank of Scotland would not be able to operate in an independent Scotland and if we are going to draw this out till 2016, what is going to happen to the security of our jobs and so on? We need to resolve this one way or the other; that is the criticism. On the point of the question, could the noble Lord, as the spokesman in this place for Alex Salmond, help me? Why is he refusing to agree that that question, which the noble Lord says is fair, should be looked at and determined by the Electoral Commission?
Lord Wigley
I am very grateful for that intervention. I am not going to go after the Royal Bank of Scotland because no doubt we will come to those issues later in the Bill, and I hope to be participating then. With regard to the latter point, Alex Salmond said yesterday:
“The question is designed to comply with the Electoral Commission's guidelines which are that referendum questions should present the options clearly, simply and neutrally. The question we have published today aims to be all three, and will be subject to testing using a sample of voters”.
That accepts that he will have discussions with the Electoral Commission, and I understand that the Secretary of State for Scotland has welcomed that.
Lord Forsyth of Drumlean
I do not know what the Secretary of State for Scotland has said, but what the First Minister said is what the noble Lord just read out, and it is typical of the weasel words that are used. When he is asked specifically, “Will the question be changed if the Electoral Commission advises that it should be?”, we get no response. Does the noble Lord agree that if the Electoral Commission, as the regulator, suggested a change then any fair minded First Minister would agree to it and agree to that principle?
Lord Kerr of Kinlochard
It is a question that could be raised again, given that we have a legislative workload on Scotland and that we would benefit from hearing the views of the Scottish National Party.
I have an additional point, and here I agree very strongly with what the noble Lord, Lord Wigley, said. I do not want to see the balkanisation of Britain. The first casualty, though, could be the language of constitutional debate. We really should not be using language like “rigged” or “fixed”. If there was someone here to answer and hit back at us in this debate, it would be bold and brave to use such language; it is not bold and brave to use it when there is nobody here to speak for the side that one is attacking. To accuse someone who is not represented here of being devious seems very unwise. We have very serious constitutional questions to address. I am a unionist. It is very important for the future and the health of the union that we address these questions in sober, polite and reasonable parliamentary language.
Lord Forsyth of Drumlean
Could I ask the noble Lord about the interesting argument that he is developing about the importance of having people from the Scottish nationalists in this House? Would he apply that to UKIP? When he talks about language, I recall that the noble Lord referred to Members on this side, who are rather more sceptical about Europe than he is, as the Tea Party. Was that an appropriate use of language?
Lord Kerr of Kinlochard
I am delighted that the noble Lord remembers—I thought it was one of my most polished impromptus and that it had fallen by the wayside. I have no views on and nothing to say about UKIP. We are talking about Scotland and the party that won a landslide election victory last year and should be represented in this House.
Lord Forsyth of Drumlean
The noble Lord is making a very interesting and important speech, and I do not want to ruin his thread, but I am not clear about what he is saying about legislative consent. Is he saying that because this process has been gone through, if the Scottish Parliament did not give legislative consent, we should go ahead anyway? Or is he saying that the Scottish Parliament ought to make up its mind and decide? Will he help me with that?
Lord Browne of Ladyton
I am grateful to the noble Lord for his question and I shall endeavour, if I may, to deal with those issues in the thread of my argument, because I will deal with them. I apologise if I am engaging your Lordships' House for a period of time on this, but it is important. I want to make this argument in its entirety so, if I may, I shall make it in the order in which I have thought about it.
Not only did the Calman review report, and not only did successive UK Governments welcome that report and start the process of implementing the recommendations—I say at this point that when it comes to the detail of the debate, I will be probing whether we have been true to Calman in some regards, because that is quite important—but we put this issue to the Scottish Parliament. I say “we put this issue”; the issue was put to the Scottish Parliament. We have a Bill that is largely faithful to Calman. Calman is, in my view, well argued and well explained. I know that all noble Lords do not agree with that, but we will have a debate about it. That Bill has been through a process in the Scottish Parliament, and this is important. On 10 March 2011, the Scottish Parliament, on a cross-party basis, which this time included the Scottish nationalists, voted in favour of a legislative consent Motion supporting this Bill—not precisely this Bill, but largely this Bill. It made certain recommendations and asked that the Government and the UK Parliament take those recommendations into account. In other words, it voted in favour of that with conditions, and Alex Salmond himself voted in favour of that Motion on the basis of those conditions, so we have a legislative consent Motion from the Scottish Parliament which Alex Salmond voted in favour of. Those conditions have largely been met. In fact, the amendments to the Bill, and the reason that the Bill arguably has to go back for a further legislative consent Motion, are substantially because of the conditions that the Scottish Parliament asked to be considered that are now reflected in amendments to the Bill. In 2011, Alex Salmond said that he was in favour of this Bill, if the Government did certain things with it. Substantially, those things have been done, as we will no doubt uncover when we debate this in Committee and on Report, and now there appears to be some question mark about whether the Parliament, which his party controls, is prepared to give that amended Bill consent. I do not know whether this is unparliamentary language in your Lordships' House, but it seems hypocritical in the extreme for him, having voted for it, to reject the Bill at this stage.
Lord Wallace of Tankerness
My Lords, I start by thanking my noble friend Lord Forsyth for moving this amendment. He questions whether I should—I think it has been very useful. I hope we will move into Committee, but it is helpful that that has been placed in the context of the current political debate. It is a very serious constitutional debate, not just for Scotland but for the wider United Kingdom, as other noble Lords, not least the noble Lord, Lord Empey, have indicated. The comments that have been made have helped to set that context.
I endorse what was said by the noble Lords, Lord Kerr, Lord Singh of Wimbledon and Lord Browne, about the importance of the tone of these debates. It is important that we conduct these debates in a very rational manner, putting and testing argument in a way that I think is typical of this House. The noble Lord, Lord Kerr, indicated that it was perhaps unfortunate that there are no Scottish National Party Peers here. I do not propose to answer for the Scottish National Party but I share his view. That is a decision that the party has taken. Our debates are possibly the poorer for it. Without embarrassing anyone by naming names, many of us can think of one or two Scottish National Party Members who would certainly add to the deliberations in your Lordships’ House. Of course, they might then be able to move some of the amendments on the recommendations of the Scottish Parliament committee. I know that my noble friend Lord Forsyth will move some of them. No doubt the business managers will have noted his comments about the Moses Room.
We certainly took on board the comments that had been made about the fact that it would not necessarily be desirable for Committee stage of this Bill to take place when there would still be live questions on amendments tabled in relation to the referendum on independence while the Government’s consultation was still outstanding. That consultation will close on 9 March. I am grateful to all who contributed through the usual channels that the House was able to agree a Motion on Tuesday, which has been widely welcomed, to enable our debates on Clause 10 to be taken last. At that time, I suggested to the House that any amendments relating to the referendum or independence should be best placed before Clause 10. Perhaps I may express my gratitude to noble Lords who have tabled, and in some cases retabled, referendum-related amendments before Clause 10 rather than to other parts of the Bill in order that we can fulfil the intention of the order of consideration that was put before the House. To repeat what I said on Tuesday, the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March, which will allow us to debate the referendum in the light of the responses received during the consultation period.
That said, we immediately found ourselves debating issues relating to the referendum and the consultation documents. While I am tempted to follow the noble Lord, Lord Browne, down the road of saying, “Well, perhaps it is not appropriate to discuss these”, I think that it would be only courtesy at least to address some of the issues that have been raised. However, quite clearly, when the House resolves itself into Committee and we reach the amendments that have been tabled in relation to a referendum, we will have an opportunity to discuss those issues at greater length and in more detail.
I am very grateful for the comments made by the noble Lord, Lord Browne, about the lecture I delivered at Glasgow University last week. I was able to confirm the very strong view of the United Kingdom Government that under the Scotland Act 1998 the Scottish Parliament does not have the legal competence to pass a referendum Bill. Things obviously flowed from that and we set out in our consultation why we believe that a referendum should be legal, fair and decisive, and the ways in which we might seek to do that.
It is fair to say that we have moved a long way in two weeks. First, I do not think that I had sat down in your Lordships’ House after having repeated the Statement before we had been given a preferred date by the Scottish Government for a referendum, for which many people had been asking for some considerable time. It appears to be the case that we have agreed that the preferred way to deliver the legislation for a referendum is by the two Governments working together. In their consultation paper yesterday, just as the United Kingdom Government expressed their preference for an order under Section 30 of the Scotland Act to take this matter forward, the Scottish Government indicated that their preference was for a Section 30 order.
Without going into the detail of the Section 30 order, I know that my noble friend Lord Sanderson expressed the importance of the role of the Westminster Parliament in constitutional issues. Of course, a Section 30 order not only has to be approved by the Scottish Parliament but has to be approved by both Houses of this Parliament, which means that, assuming we can make progress, any order which we would wish to bring before the House is one which this House would have an opportunity to consider. Clearly, that will be in mind as these discussions take place.
Lord Forsyth of Drumlean
Perhaps my noble and learned friend can help me on one point. He has been very generous in agreeing to reschedule the consideration of the Bill in order to accommodate the timetable of the Government’s consultation paper. Will he say something about how he proposes to deal with the problem created yesterday by the Scottish Executive’s consultation paper, which has a timetable that takes us beyond the period probably of this Session and therefore our ability to consider the Bill? How do we resolve that?
Lord Wallace of Tankerness
I was going to deal with that matter later. The noble Baroness, Lady Liddell, also made reference to the possibility of carrying over the Bill. Certainly, it is my understanding that the normal process for carrying over legislation is that it has not passed to the second House for consideration. Page 642 of the 24th edition of Erskine May states that,
“carry-over is restricted to Bills which have not yet left the House in which they originated”.
Therefore, to try to carry over this Bill would mean not so much carrying over but effectively starting the process again, which would significantly delay implementation. That is why I believe it is right to continue with the current timetable and I will come on later to explain why. It is important that we make progress on that.
My noble friend Lord Forsyth mentioned the fact that, as we are well aware, the consultation paper was published yesterday. The point is that the UK Government’s consultation paper indicates that while our preference is for a Section 30 order, there is also the possibility of using this Scotland Bill. Clearly, if we are to get this Bill passed in the current Session, it would not be possible to put it off indefinitely. I note that paragraph 1.7 of the Scottish Government’s consultation paper states:
“The UK paper sets out two possible mechanisms to transfer the power to hold a referendum on independence: an Order in Council under Section 30 of the Scotland Act 1998, or an amendment to the Scotland Bill currently under consideration by the House of Lords”.
It does so without any implied criticism. It just states that as a fact. We would wish therefore to make progress, although it is important for us to indicate that, but for the fact that my right honourable friend the Secretary of State for Scotland has been stricken down with chicken pox, there would have been a meeting tomorrow between him and the First Minister on these matters. Unfortunately, it cannot take place tomorrow but we are very keen that it should take place—I do not think the First Minister is keen that it should take place while the Secretary of State has got chicken pox—as soon as possible. It is a welcome sign that that engagement is happening.
I will reflect on the points made by my noble friend and others about the role of the Electoral Commission. However, the UK Government have made it very clear that we believe that the Electoral Commission is a proper body to have oversight of the referendum, not least given its track record in monitoring referendums since its inception. We are clear that that is our preference.
A number of noble Lords raised whether the question proposed by the Scottish Government is fair. We will certainly wish to consider the consultation document carefully but we believe, as set out in our consultation paper, that the Electoral Commission should have a statutory role to review and to comment on the question. As others have pointed out in the press today, it is not immediately clear from the Scottish Government’s document that they propose that the Electoral Commission will have that role. I understand that the First Minister has indicated that this may have been an oversight of the document but we will obviously pay close attention to that. Clearly, it would be part of the substance of discussions.
Lord Wallace of Tankerness
I recall the kind of situation that the noble Lord, Lord McConnell, suggests. That emphasises that the Electoral Commission does have an important role to play. I cannot answer his specific question today, but it underlines more generally the important role of the commission. Further, as I have indicated, this will be a matter for discussions with the Scottish Government.
I have made the point that these discussions are taking place, but my noble friend also raised the question of what we should do with the Bill pending a legislative consent Motion in the Scottish Parliament. As the noble Lord, Lord Browne of Ladyton, reminded us, the Scottish Parliament expressed its general support for the Bill, subject to some detailed concerns, in a vote in March 2011. Of course, the Scottish political landscape has changed since then, but as he rightly reminded us, those voting for the resolution included many Members of the current majority party in the Scottish Parliament, including the First Minister himself. He also indicated that there has been a response from the UK Government to the points made in the legislative consent Motion, specifically that provision has now been made in the Bill to allow bonds to be introduced in the future without the need for further legislation. There is a provision in the Bill to allow for reciprocal consultation between Governments in relation to electoral matters; provision to provide Scottish Ministers a role in the appointments to MG Alba; and provision to give Scottish Ministers responsibility for the disqualification rules for the Scottish Parliament. Obviously we will come to discuss Clause 17 at the next sitting of the Committee, if we get that far, which in a number of important respects is a response to the review undertaken by the noble and learned Lord, Lord McCluskey, at the request of the Scottish Government. So there have in fact been numerous comprehensive responses to the previous LCM.
I can assure the House that we are considering carefully the latest Scotland Bill Committee report. Its timing is clearly not a matter for the UK Government, but I can confirm that we are in continuing constructive discussions on the Bill with the Scottish Government. It might be premature to table a legislative consent Motion when these discussions are ongoing. I do not particularly want to say anything that might prejudice those discussions, but I can confirm that they have been happening on a constructive basis, and I hope that they will provide us with a way forward.
My noble friend Lord Maclennan asked about our response to Miss Fabiani, who is the convenor of the committee. I can confirm that on 20 January the Secretary of State wrote to her and again made it clear that constructive discussions are under way. He also indicated that in addition to reviewing the report of the Scottish Parliament, the Government would have to have regard to comments and contributions made in your Lordships’ House on the Bill. I think I am right in saying that the letter contained a paragraph which reminded the convenor of the Scotland Bill Committee that the Government do not have a majority in this House, and therefore we could not necessarily guarantee that any particular amendments would be carried. However, I hope that I can reassure noble Lords that there is constructive engagement on this.
It is also fair to say, as the noble Lord, Lord Browne, pointed out, that there is no clear timetable about when in the progress of a Bill a legislative consent Motion is passed. As I indicated, one was passed in the Scottish Parliament last March, which certainly meant that it was done before Report stage in the House of Commons.
Lord Forsyth of Drumlean
I have considerable respect for my noble and learned friend, and perhaps I may ask him to answer a straightforward question. In the absence of a legislative consent Motion, will the Government proceed with the Bill to Royal Assent, and implement it; or is it their position that without a legislative consent Motion, the Bill will not go ahead? It is important that Members of the Scottish Parliament know the score. As the noble Lord, Lord Browne, said, if one were a Member of the Scottish Parliament who, like the First Minister, was publicly committed to the Bill, one would not want to do anything that might prevent it getting on to the statute book. The fact that the committee report has not even been scheduled for a debate in the Scottish Parliament, when we want to take account of what it has to say, is an affront to democracy—which might be a strange thing to say in this unelected House.
Lord Wallace of Tankerness
My Lords, I sought to indicate that if discussions are going on, it might be premature to go ahead with a legislative consent Motion. That could prejudice the discussions when in fact there is an opportunity for agreement. I do not want to say anything that might be seen as a threat and jeopardise the position, as that would not be helpful to the process. We want to achieve a process in which a further legislative consent Motion can be passed by the Scottish Parliament, and I do not wish to say anything in the debate to prejudice that. I say that particularly as an engagement has taken place. However, as the noble Lord, Lord Browne, made clear, many powers that will be available in this Bill are ones that the Scottish Government have been calling for. The recently published document on infrastructure planning is actually predicated on carrying forward to fruition the borrowing powers which the Bill makes available.
Lord Forsyth of Drumlean
I am sorry to press my noble and learned friend. I am asking not about the negotiations but about the constitutional position. So far as the Government are concerned, is the constitutional position such that they will not proceed to put this legislation on to the statute book in the absence of a legislative consent Motion—or might they? I do not wish to prejudice the negotiations but I do want to have clarity on the status of legislative consent Motions. The noble Lord, Lord Sewel, gave us his view. I want to know the Government’s view on the status of legislative consent Motions. The Motions apply not only to the negotiations on this Bill but to Section 30 orders.
Lord Wallace of Tankerness
My Lords, the point on Section 30 orders is clear—it is in statute. Statute law requires the consent of the Scottish Parliament and of each House in this Parliament. A convention is just that, a convention; it is not enshrined in statute. However, as the noble Lord, Lord McConnell of Glenscorrodale, said, if a convention has been operating for a period, you have to be careful about how you deal with it. I am not going to say anything today that might prejudice the way in which that convention is dealt with. Equally, although there is a legislative consent Motion outstanding, I very much hope that there will be a further one to which the House can have regard before we reach Report.
I shall come to the question asked by the right reverend Prelate in a moment. However, we may well have completed the Committee stage before we have the report of the Scottish Parliament committee. At one stage it seemed possible that we might receive it but, for reasons of timing, that has not happened. There is certainly nothing sinister about it, and I do not think that the Scottish Parliament necessarily expects that we would hold back our deliberations in Committee until the legislative consent Motion had been tabled and debated. I know that the noble Lord, Lord Sewel, is desperate to intervene.
Lord Wallace of Tankerness
That accords with my recollection. Given the limitations on amendments tabled at Third Reading in your Lordships’ House, I am not going to get into a discussion on whether it would be before Third Reading or before Report. However, that—as enunciated by the noble Lord, Lord Sewel—accords with my understanding of the convention.
It is also important to note what has been noted by a number of contributors to this debate—that not only has the Bill been passed by the elected House, its content was included in the 2010 general election manifestos of the Labour Party, the Liberal Democrats and, substantially, the Conservative Party. Each party which had been party to the Calman commission process made a commitment in its respective manifesto to take it forward. It is quite a rare event in politics to be criticised for implementing your manifesto commitments. It rather stands things on their head if for some reason you are criticised for actually doing what you said you would do.
The noble Lord, Lord Browne, asked me as a member of the Calman commission—I suppose that my declaration of interest will apply throughout these proceedings—what response the commission received. I think that it is fair to say—there are other members of the commission present in your Lordships' House today—that we were not inundated with suggestions about where the boundary between devolved and reserved matters should fall. Many of the representations that we did receive—there were not a particularly large number—are reflected in the Bill before us. However, it was strongly represented to the Calman commission that the 1998 Act would have to be revisited because of the lack of financial accountability of the Scottish Parliament. That was understood when the Act was passed. We have had since 1999 a Parliament that has had complete discretion over how it spends the money it receives but precious little responsibility for raising it. I think that my noble friend Lord Steel said in a Donald Dewar lecture that a Parliament that was 100 per cent dependent on its revenue from another Parliament would have to address that issue. That is what we seek to do in the Bill. As the Calman commission proposals have been around since 2009—they elicited a White Paper from both the previous and the present Administrations—I suspect that many of them, to some extent, have already been banked. However, as the noble Lord, Lord Browne, indicated, these are very substantial proposals that should not be minimised. They will give to the Scottish Parliament a degree of financial accountability that does not exist at the moment. That is one of the reasons why we want to make progress.
The right reverend Prelate asked about the overlap of the Scotland Bill and a referendum campaign. I think it is fair to say that it has been known since last year’s election, and before the Commons debated the Bill on Report, that we would have a referendum campaign at some point. That is something that we have to take account of but it has not suddenly come up. It was clear in the Second Reading debate that we would go into a referendum campaign at some stage. However, the Bill’s powers are substantial and we should continue to make progress with it.
The noble Lord, Lord Empey, raised some important issues about the referendum campaign that will have to be debated, as the substance of that independence debate, once the process is resolved. I think that many of us look forward to engaging in that debate and making a positive case for Scotland being part of the United Kingdom. The noble Lord, Lord McConnell of Glenscorrodale, warned that the First Minister was perhaps taking the view that the way to get rid of bad tenants is for them to annoy the neighbours. It is a good analogy up to a point, but the point is that we are not tenants. We helped to build the house and we co-own it. That is why the union is so valuable to us.
My noble friend’s Amendment 85 will allow us to return to these matters later in Committee. As I indicated earlier, although the Scottish Parliament has considered the Bill, your Lordships' House should be able to consider it in detail too. I am conscious that there are a number of your Lordships present who were here during the debates in 1998. I think that those debates well served the Scotland Bill, which became the Scotland Act 1998. The kind of deliberation that your Lordships can bring to a constitutional measure such as this is an important part of the process. I encourage noble Lords to continue deliberations on the Bill, and I hope that we can now proceed to do so in Committee.
Lord Forsyth of Drumlean
My Lords, we have had a really good debate. My view that the debate would take half an hour has not worked out entirely right—we have had two hours and 17 minutes of debate. It is fantastic that we have had such a turnout given that the debate was scheduled for the Thursday after Burns Night when many of us would have been in Scotland and perhaps not as bright and breezy as people obviously were this morning.
I do not propose to respond to all the points but I thank everyone who contributed to the debate. I am not sure whether I should thank the noble Lord, Lord Foulkes, for praising me for acting against my party interest in taking the view that I do on the union. Being serious, I think that we all recognise that the future of the United Kingdom is an issue that is above party, as this debate has demonstrated.
My noble friend Lord Sanderson talked about competition between consultation papers. Although I believe in competition, in this case it may have led to a certain disorder in the marketplace. It is really disappointing that the idea of carry-over proposed by the noble Baroness, Lady Liddell, cannot work, because that would have been a solution. I have to say to my noble friend Lord Sanderson that the last thing we want is another Bill to deal with a referendum in the next Session of Parliament, when we will by all accounts have to deal with the future of this House, which I think will take on considerable time and turbulence.
The noble Lord, Lord Wigley, is right to be concerned about language, but I just ask him to spend half an hour on the internet looking at what the cybernats write about many of those who have spoken in this debate. If he could convey those views about language to them, it would be very much appreciated.
The noble Lord, Lord Kerr, argued that it was important that there should be nationalist Members in this Chamber in order to put their point of view, but he seemed to have a bit of a wobble when I suggested that UKIP might be treated in the same manner. The right reverend Prelate the Bishop of Chester made the key point that it is important that this debate is seen to be carried out respectfully. That means that the consent of the Scottish Parliament is fairly important, a point made by the noble Lord, Lord McConnell. He criticised the Prime Minister for intervening perhaps a little late in the debate. That might be a fair criticism, but I do not think that any of us could have expected the First Minister to have made quite so many changes so quickly in response, so perhaps we have caught up with a timetable that would otherwise have applied.
The noble Lord, Lord Hughes, who I believe celebrated a major birthday recently, and who has a long experience in these matters, reminded us of the—I shall be careful with my language—flexible view on devolution which the First Minister has taken. He has been against it; then, in 1998, he campaigned with the Labour Party for it; then he went back to Scotland in 2004 and denounced devolution as a disaster; and now he is the high priest of devo-max, because nobody else seems to be talking about it.
I have great sympathy with the noble Lord, Lord Sewel. He shares with the noble Lord, Lord Barnett, the fate of having something named after him which he is going to spend the rest of his life denying any responsibility for.
It was very important to have the contribution of my noble friend Lord Steel, who was the first Presiding Officer of the Scottish Parliament. Of course, in the original Scotland Act, it was thought that the electoral system had been designed so that no one party would be able to get a majority, and that it was unnecessary to have a House such as your Lordships' House to be a check and balance against the Executive, because the committee system would ensure a balance. Well, it has now turned into almost a one-party Parliament. The nationalists have a majority in the committees and there is no check and balance. Therefore the role of this House is even more important. The fact that the current Presiding Officer was taken from the same party underlines the lack of sensitivity to the point so well made by my noble friend.
In his address, the noble Lord, Lord Empey, reminded us of how important it is to get these matters right, and that the balkanisation of Britain is a matter that concerns every part of the United Kingdom.
My noble friend Lord Maclennan reminded us that absence of consent is not acceptance. I agree. The noble Earl, Lord Mar and Kellie, referred to the absence of the SNP as Banquo’s ghost. I plead with him to find another analogy because, of course, Banquo’s successors inherited the crown.
Finally, in an excellent speech—I hope this is not damaging for him—the noble Lord, Lord Browne, set out the answers. He reminded me of what the noble and learned Lord, Lord Irvine of Lairg, said about the West Lothian question in response to my pressing him on where we were on the legislative consent Motion—a view which was echoed by my noble and learned friend in his excellent reply—which was that, with some questions, the answer to the question is not to ask the question. So on the basis that we do not ask the question now and make progress in the interests of what I accept is the democratically expressed views of the Scottish people, I beg leave to withdraw the amendment.