Business of the House

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Tuesday 26th March 2019 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I seem to remember that we had quite a lot of debate in this House about the inclusion of the date of 29 March in the legislation. It astonishes me greatly to find that the Prime Minister can go to a meeting in Brussels and, suddenly, what is in statue is completely irrelevant. However, I do not propose to say anything about that because I strongly support my noble friend Lord True. Unlike the noble Baroness, he did not address whether we needed to change the date, and the reasons for changing it, but rather the procedure of our Standing Orders, which requires a report from the Joint Committee on Statutory Instruments.

The noble Baroness, Lady Hayter, for whom I have enormous regard, has suggested that perhaps we should sit on Friday to see the committee’s report. That sounds a bit like the tail wagging the dog. There is an issue under our Standing Orders that we should receive a report from the committee. Reading the Explanatory Memorandum, I note that the United Kingdom sent a letter dated 22 March from the Permanent Representative of the United Kingdom to the EU. If he could write a letter to the EU, why could a letter not have been sent to the chairman of the joint committee, inviting it to meet to discuss the matter and report to this House? This may sound like a rather pedantic point—

[Lord Kerr of Kinlochard (CB)]

Yes.

[Noble Lords]

Oh!

Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Monday 28th January 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is a pleasure to follow the noble Lord, Lord Desai. I cannot answer his question on how long negotiations for a free trade agreement will take from outside, but, like him, I would not have started from there. I would have started during the process, agreeing a framework for the future relationship, which is what the treaty says we should have been doing, and thus got some way down the road during the two years of negotiations on the first agreement.

I thought I would try very hard to say something new today. It is time we talked about time. It is running out, and we are going to need more. There are 60 days left, and plan B is exactly like plan A: sticking with the November agreement, which the Government would not let Parliament vote on in December; sticking with the agreement that Parliament rejected by a record majority in January; and sticking with this hopeless and humiliating request that the 27 acquiesce in some sort of legally binding formula contradicting the feature of the agreement which the Attorney-General highlighted in his letter of 13 November, as mentioned by the noble Lord, Lord Campbell of Pittenweem—namely, that the backstop will last as long as the EU 27 want it to last.

The Prime Minister told us she would change that in December—it did not work. She told us that again in January—it did not work. Mr Johnson, the former Foreign Secretary, tells her in today’s Daily Telegraph to,

“stiffen the sinews and summon up the blood and get on that trusty BAE-146 and go back to Brussels”,

to kill off the backstop and to replace it with a “freedom clause”. The content of the freedom clause is as yet unspecified. Reading this, I was reminded of “Beyond the Fringe”, and its splendid wartime RAF sketch, in which squadron leader Peter Cook declaims that, since the war is going rather badly:

“We need a futile gesture … Get up in a crate … pop over to Bremen … don’t come back”.


What, conceivably, could Mr Johnson’s motive be in saying “Don’t come back”? Presidents Tusk and Juncker could not have been clearer when they said in their letter of 14 January about the backstop:

“We are not in a position to agree anything that changes or is inconsistent with the withdrawal agreement”.


As the noble Baroness, Lady Wheatcroft, said:

“These people mean what they say”.


There is no more time to waste challenging them.

As for “no deal”, I do not believe that our Prime Minister, whom I believe is a serious, responsible, honourable person, would drive the country over the cliff in 60 days’ time. I do not believe it, and I do not believe that anyone believes she would. Her Cabinet may be divided, but they are not deranged. The consequences of no deal for the country have been spelled out every day ever more clearly, as the noble Lord, Lord Newby, said. The logically and physiologically rather odd argument that it would weaken our hand in Brussels if we were to stop threatening to shoot ourselves in the foot now looks even odder, given that there is no serious negotiation going on, because we have tabled no serious proposition.

I will reflect on the interesting analogy with nuclear deterrence that my noble and learned friend Lord Brown of Eaton-under-Heywood regaled us with. The flaw may be that Trident deters the Russians and does not damage us, whereas a no-deal Brexit would delight the Kremlin, and the risk of it is ravaging the British economy right now, as the noble Lord, Lord Newby, pointed out. The choice cannot be between the November deal and no deal. That makes no sense, and the Spelman-Morgan amendment in the other place tomorrow deserves support.

Talleyrand defined statesmanship as foreseeing the inevitable and accelerating its occurrence. The Government must already know that we are going to need an extension under Article 50(3). They must know that the Reeves-Benn-Grieve amendment tomorrow is sensible. They would do well to embrace it.

What are the arguments against seeking an extension under Article 50? I have heard three. It is said that it would betray the referendum result if we were still in the EU on 30 March. I cannot see that. The date was not on the ballot paper, and I do not think anyone knows why the Prime Minister subsequently picked it and started the two-year clock with no proposals tabled in Brussels, no strategy agreed in Cabinet, no attempt made to find consensus in Parliament, no consultation with the devolved Governments, and no consultation with the Dublin Government.

Mr Johnson, the former Foreign Secretary, says that 29 March is an “iconic” date, which it would be humiliating to miss. Why “iconic”? I do not know. Maybe he was thinking of the Battle of Towton, fought on 29 March 1461, which did, after all, produce a change in leadership. However, I doubt it. Towton was the bloodiest battle ever fought on English soil, and Mr Gove is still around.

Maybe he had in mind the Treaty of St Germain, signed on 29 March 1632, when we gave control of Quebec back to the French. Could he be planning to reverse that, in a maximalist version of Canada-plus? I rather hope not, but enough of Mr Johnson. Let us be serious.

[Lord Forsyth of Drumlean (Con)]

Could it be that he considers the date iconic because such a huge majority of the House of Commons voted for the legislation that set it in stone?

[Lord Kerr of Kinlochard]

That is perfectly true; the date is in the legislation. The date was taken out of the legislation in this House by quite a large majority— I think it was 78—on the recommendation of the amendment of the noble Duke, the Duke of Wellington. I think that the House of Commons was extremely rash to put the date back in again, but the Letwin compromise ensures that there is no particular problem here. It can be taken out again without primary legislation.

The second objection I heard is that the House of Commons has decided on that date. If it wishes to, the House of Commons can change the date, on the Government’s recommendation, by the stroke of a pen. That is not a serious objection.

The third objection I have heard is that the 27 might not agree to an extension. However, they do not want no deal either. Nobody wants no deal. While it is much worse for us, it is bad for everyone, and the 27 have always been clear that a better deal—better than the November deal—could be envisaged if the Prime Minister were ready to move on her four red lines, which were so rashly laid down for party management reasons at the 2016 party conference. A move might involve considering a real customs union, unlike the partial, unequal, temporary, bare bones version in the backstop. It might even, two years late, involve working out a real, legally binding framework for the future relationship, as envisaged in Article 50(2), which would be directive and determined, unlike the present loose aspirational declaration. That would require time for real negotiation, but we know that the 27 would allow it, and we have always known that they would allow time for an election or a referendum in this country. It is clear that Brussels, shocked by the disarray in this country, now knows that more time may be needed and is waiting for us to signal that. Provided that we have a real proposition to discuss—not just the plan A, plan B, “Beyond the Fringe” nonsense of seeking contradictory assurances—it is clear that the 27 would give us more time, if we ask for it. Therefore, the Cooper amendment tomorrow in the other place makes sense and should be supported.

Our debate is only the overture to tomorrow’s drama over there, but it is right that we should show that we are just as concerned as they are and ready to do our bit to stop the country sleepwalking into disaster. I now believe that that will require stopping the clock.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Monday 22nd February 2016 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I rise to speak to Amendment 75A. I was in meetings in Glasgow this morning and came in during the earlier debate on the amendment to the Motion in the name of the noble Lord, Lord Forsyth of Drumlean. I heard his rousing peroration; I agreed with it. Had I been in the Chamber in time, I would have wished to speak in support of it. I agree with his “sunrise” Amendment 79H, which I guess he will speak to in a moment.

Mine is a much more mundane matter. My amendment concerns borrowing limits. I find that one of the difficulties of handling the Bill in the absence of the fiscal framework is not so much dealing with what is in the Bill as understanding why things are not in it. I do not know why no provision or regime for borrowing is set out. That is why my amendment proposes the principles for such a regime. It is a key element of the Smith commission report that there should be enhanced borrowing powers for the Scottish Government, and I agree with that. The core of Smith is paragraph 95, where the fiscal framework is discussed. The most crucial element for me, apart from indexation, is the borrowing limits—how is borrowing to be done?

We discussed this in the Economic Affairs Committee, and the report of the noble Lord, Lord Hollick, brings out that the committee did not believe that anybody would believe a no bail-outs rule. The committee firmly believes that it is necessary to be seen to stand behind Scottish borrowing. Scottish borrowing will be cheaper. It is clear to all that the United Kingdom Government stand behind it. The clearest way of spelling that out is to have a provision on borrowing in the Bill. I do not argue that we should set out specific limits in the Bill—that, clearly, is a matter for subordinate legislation, as my amendment suggests. However, it seems clear that we must set out the two categories of borrowing in the Bill, that they will be subject to ceilings, and that these will be negotiated and agreed in consultation with the Scottish Government but will be set by Her Majesty’s Treasury. That seems practical and commonsensical. It makes for cheaper borrowing for Scotland, which is, of course, also cheaper for the United Kingdom, since the United Kingdom will stand behind the borrowing.

If the borrowing is properly conducted, it will be as part of the United Kingdom’s programme. It will get slots in the programme if the United Kingdom wishes to issue bonds. I have no idea how big the increases needed are and what the current limits on Scotland’s borrowing powers are, and the Smith commission does not help a great deal on that. It states that,

“to reflect the additional economic risks, including volatility of tax revenues, that the Scottish Government will have to manage when further financial responsibilities are devolved”—

I agree with that—

“Scotland’s fiscal framework should provide sufficient, additional borrowing powers to ensure budgetary stability and provide safeguards to smooth Scottish public spending in the event of economic shocks, consistent with a sustainable overall UK fiscal framework”.

That is clearly true, but it does not help to define what “sufficient” means. I do not know whether this is a matter of controversy in the current fiscal framework talks, but I think we should be told. Is it agreed that there should be ceilings on Scottish borrowing? Is it agreed that that level should be set by the United Kingdom Government in consultation with the Scots? Has that level been set; that is, has it been agreed?

This is talking about current borrowing, but I must say that I think there will be the need for a considerable increase. My view is that “sufficient” is going to be quite a lot more than the Scots now have, although it is inconceivable that it would be sufficient to deal with ensuring “budgetary stability” and providing,

“safeguards to smooth Scottish public spending in the event of economic shocks”.

Let us remember that the oil price on Scottish referendum day was $115 a barrel. That is quite an economic shock, and borrowing in the markets is not a credible way of dealing with it. However, there is a common-sense case for a large increase because of the seasonality of tax income and the need to smooth over the year. That element is clear, but there could be controversy about what the level is, in which case I think we should be told because transparency does matter.

The second kind of borrowing, also covered in my amendment, is borrowing to support capital investment consistent with the sustainable overall UK fiscal framework. I agree that that makes sense. There will be public investment which should be financed by the markets, but I do not know whether that is controversial for Her Majesty’s Treasury. I do not know whether the UK Government buy that bit of Smith, or whether there has been a discussion about how much. I do not know whether this is one of the reasons for the hold-up on the fiscal framework, and I think we should be told.

[Lord Forsyth of Drumlean (Con)]

I wonder whether the noble Lord could help me. When he talks about setting a limit on borrowing, are we starting with a new baseline or is it assumed that the existing level of debt has part of it somehow imputed to the Scottish Government, so that we then start from that baseline?

[Lord Kerr of Kinlochard]

I have not the faintest idea.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Neither do I.

[Lord Kerr of Kinlochard]

I hope that the noble Lord, Lord Dunlop, knows, but I do not think that any of the rest of us knows what this means in the Smith report. Alas, the noble Lord, Lord Smith of Kelvin, is not here today to tell us.

It could be argued that there is no need to have any of this in the Bill, and I would like to hear from the Government whether that is their view. After all, they could have brought forward a Bill which said nothing about borrowing, despite the fact that it was a key part of paragraph 95 of the Smith report covering the fiscal framework. If it is their argument that there is no need to say anything about borrowing, I want to know why. As I said at the start, I believe that borrowing will be cheaper for Scotland and therefore better for the United Kingdom and Scotland if it is clear beyond doubt that the United Kingdom stands behind it. If it does, it is then clear that the United Kingdom has the right and the duty to set limits on that borrowing. I repeat that those limits should not be in the Bill. They should be set by affirmative resolution of both Houses, but the provision to require that should be in the Bill, and that is why I have tabled Amendment 75A.

Constitutional Convention Bill [HL]

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Friday 11th December 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I did speak at Second Reading. The main point I made was that I thought the Bill was far too ambitious. I am very disappointed to see that the terms of reference in Clause 2 remain pretty well as they were at Second Reading, although I thought the noble Lord said that he would consider the fact that there might be quite a lot to do.

The Economic Affairs Committee of this House spent four months looking at the single issue of the financial consequences of devolution in the United Kingdom and produced an excellent report, which has had quite an impact in Scotland and beyond in making people aware that it is necessary to agree and know the fiscal framework before you set in place further structures of devolution. I do not quite know how it would be possible for this constitutional convention not only to consider,

“the devolution of legislative and fiscal competence to and within Scotland, England, Wales and Northern Ireland”,

but deal with,

“the devolution of legislative and fiscal competence to local authorities within the United Kingdom”,

and,

“the reform of the electoral system”,

and,

“the reform of the House of Lords”,

which we have spent more than 100 years discussing. Furthermore, I looked for the kitchen sink, and the kitchen sink is there, described as,

“constitutional matters to be considered in further conventions, and … procedures to govern the consideration and implementation of any future constitutional reforms”.

The convention has to do all this within a year. It is ridiculous.

Who will do this? The convention will be composed of representatives from,

“registered political parties within the United Kingdom”.

I think there are about 600 registered political parties in the United Kingdom, a point that was made very eloquently by my noble friend in winding up at Second Reading, but that is what we are still left with in Clause 4, along with representatives of “local authorities” and,

“the nations and regions of the United Kingdom”.

In addition:

“At least 50% of the members of the convention must not be employed in a role which can reasonably be considered to be political”.

First, finding such people might be difficult. Secondly, there is the experience that we have had with the Smith commission. One has only to read the Committee debate so far on the Scotland Bill to see the mess you get into when you have a group of people working out what they would like to happen without advice and without the ability to translate that into legislation.

It is also quite an impertinence to suggest that issues relating to reform of the House of Lords are matters that should be decided outside this House and outside Parliament. The noble Lord chuckles, but it would be extremely difficult for people to be educated on and understand the procedures of this House and achieve everything within a year. Although I very strongly support the idea of a constitutional convention with the limited purpose of sorting out the mess that we have brought ourselves into because of piecemeal constitutional reform, we have already determined what we think about House of Lords reform. We spent a large slice of the last Parliament discussing it. As for the noble Lord, Lord Grocott, I have always thought of him as a radical and not a conservative, but a radical with common sense, intellect and a practical frame of mind.

It just seems to me that the noble Lord, Lord Purvis, is putting forward a Bill that will discredit the idea of having a constitutional convention and make it very easy for those of us who support having one to be brushed aside by the Government on the basis that what is being proposed in the Bill is unrealistic. I very much hope that Clause 2 does not stand part of the Bill as drafted. If it does, the Bill will have to be consigned to the wastepaper bin, for it does not offer a way forward on determining our constitutional arrangements.

[Lord Kerr of Kinlochard (CB)]

My Lords, I very much agree with the first two points made by the noble Lord, Lord Steel of Aikwood. It was very striking in our Scotland Bill debate how general is the consensus in this House on the need for a convention and how general is the concern that proceeding piecemeal is a very bad idea. It has got us into a lot of trouble.

I oppose Amendment 1, which I think is what we are trying to do. I am against Amendment 1—

[Lord Forsyth of Drumlean]

We are discussing Clause 2.

[Lord Kerr of Kinlochard]

The stand part debate? Very good. I support the Bill that the noble Lord, Lord Purvis of Tweed, has put forward, and congratulate him on doing it. I agree with the principle of it, but I do not agree at all with Clause 2, which seems far too long and detailed. We need to stop, reflect and think about principles. We need to start with a long period of reflection. I am also against Clause 3, which sets a timetable. Like the noble Lord, Lord Forsyth, I do not think it a timetable that could possibly work.

I was secretary-general of a convention which sat for 16 months, with four or five months of reflection, four or five months of working groups and then a drafting session at the end. We were overambitious and tried to do too much, and then were shut down by the Governments, who refused to extend our timetable. These were both mistakes. The idea of a period of reflection—which was President Giscard’s idea to begin with—was a very good one. That is how conventions should start. Clause 2 is overprescriptive in setting out the tasks that the convention should attempt—we are overdefining here.

My terms of reference would be very simple: “The convention must consider the governance of the kingdom, the relationships between its constituent parts and appropriate devolution of legislative and fiscal competence”. I would go back to principles. I do not think it a good idea to consider devolution to local authorities, as Clause 2(b) suggests. That is a secondary issue, and there is no reason in my view why there should be absolutely standardised devolution to local authorities across the kingdom as a whole. It could vary in the constituent parts.

On reform of the electoral system, I echo what the noble Lord, Lord Grocott, said. It seems to me that there is no longer a single electoral system: there are a lot of electoral systems. I have no reason to think there should be a standardised electoral system. It is not necessary for the system for local elections in Scotland to be exactly the same as that for local elections in England, for example—if such was the agreement of a convention starting from principles, Parliament should be invited to devolve generally.

I absolutely do not think that reform of the House of Lords is appropriate to a convention that is looking at principles. The composition of the House of Lords should be a function of the House of Lords: one needs to decide what the House of Lords is for. A constitutional convention ought to fetch up consideration of what cements the union—what are the appropriate ways of holding the union together? In my view, there is a considerable role for the House of Lords in that. But it would be a mistake to consider reforming the House of Lords at the same time as examining the fundamental principles, before you have reported back to Parliament and the country about those principles and discovered whether they are to some extent acceptable. There is too much bottom-up in here. We need to start with thinking about general principles, rather than getting into too much detail.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Did the noble Lord notice that this very week, the Scottish Parliament sought to argue that the Sewel convention would apply to the Trade Union Bill? The Presiding Officer took the view that it would not but the First Minister indicated that she plans to have a word with the Prime Minister about this, arguing that because there are trade unions in Scotland, there is a Scottish dimension and therefore there should be some kind of legislative consent procedure. Does that not underline how important it is to define what is meant by the Sewel convention and to have legislation that is clear?

[Lord Kerr of Kinlochard]

I entirely agree with the noble Lord, Lord Forsyth, and look forward to agreeing with him again on Monday when the issue for debate is financial privilege.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Tuesday 8th December 2015 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

These are clearly very deep waters, into which a non-lawyer plunges with some concern. I am very glad that I understood part of what the noble Lord, Lord Purvis, said. I agree with him about the need for a convention.

My real worry about all this is that I do not believe in declaratory law. I strongly believe in 2% of GNP on defence; I strongly believe in 0.7% on aid; I strongly believe in emissions controls—but I do not believe in putting these things on the statute book. I do not believe in emissions control targets with no known means of fulfilling them. I do not believe in law that sends a message. A law is not worth having unless it changes something. I subscribe to the doctrine explained by the noble and learned Lord, Lord McCluskey.

At Second Reading, we heard from the noble Lord, Lord Norton of Louth, who is our prophet in these matters. He said:

“The Scottish Parliament is already permanent under the terms of the Scotland Act; it remains in being unless this Parliament legislates otherwise. New subsections (1) and (2), introduced by Clause 1, do not make it any more permanent than it already is”.—[Official Report, 24/11/15; col. 638.]

I understand the conundrum about the Smith commission, well explained by the noble and learned Lord, Lord Hope, but it seems to me that the noble and learned Lord’s own amendment, with the noble Lord, Lord Norton, goes two-thirds of the way to delivering what he feels we are required to do. Amendment 6 does not require subsection (1). The arguments of the noble Lord, Lord Norton, have demolished subsection (1).

What we need is something that says: “The provisions of the Scotland Act, which established the Scottish Parliament, shall not be repealed unless the Scottish Parliament has consented and”—here I part company with the noble Lord, Lord Lang; I think there is a need for a referendum—“a referendum has been held in Scotland on a proposed repeal and a majority of those voting have supported it”. We do not make it any more permanent by stating its permanence, and if a new provision adds nothing, we should not make it. It is permanent because it is on the statute book. I agree that in the real world the Scottish Parliament would not vote for its own abolition, but that gives a meaning to permanence.

[Lord Forsyth of Drumlean]

What about England? I agree it is not the real world but one can imagine circumstances in which the Scottish Parliament has been given all these powers and has got itself into a right mess and the people of Scotland wish to come back and be part of Westminster. It is entirely conceivable that people in England and Wales will want no part of that. So where is the opportunity for the United Kingdom to look at this as a whole?

[Lord Kerr of Kinlochard]

I do not think the noble Lord has quite understood my proposal. My proposal is that the language in the amendment in the names of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Norton, should be preceded by the words: “The provisions of the Scotland Act establishing the Scottish Parliament may not be repealed unless”—and then the two conditions laid out in the amendment. It follows that I mean there would need to be a vote of this Parliament as well as of the Scottish Parliament, and the referendum that the noble Lord, Lord Lang, would not want but I think is necessary.

I have to say to the noble Lord, Lord Cormack, that I think the idea of a supermajority in this Parliament is a very bad one. I think supermajorities in general are a bad idea. Just as we should not add to the statute book provisions which add nothing, so we should not complicate our procedures by inventing a supermajority.

European Union Referendum Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Wednesday 18th November 2015 Lords Chamber

[Lord Forsyth of Drumlean]

Do you know what? I have often had difficulty getting people in Scotland to accept some of my arguments, and that is not just limited to 16 year-olds.

[Lord Kerr of Kinlochard]

I am very concerned about the public image of the Conservative Party in Scotland after the tartan obscurantism of two or three noble Lords sitting close to me. It is important to remember the official position of the Conservative Party in Scotland. Ms Ruth Davidson, the leader of that Conservative Party, is strongly in favour of this amendment. She argues:

“We deem 16 year olds adult enough to join the army … get married, leave home and work full-time. The evidence of the referendum suggests that, clearly, they are old enough to vote too”.

That was the deduction I drew from the Scottish referendum. It had lots of very unpleasant aspects but the one really good thing was the engagement of so many young people in politics. They got interested and involved. That is a strong argument for this amendment. There is a small Scottish argument for it as well. The question that flummoxed the noble Lord, Lord Blencathra, which I thought also sort of flummoxed the noble Lord, Lord Forsyth, is: how do you explain to the Scots young people that Holyrood was prepared to give them a vote but Westminster is not? I think we all know what deduction Scots young people would draw from that, and it is unhelpful to those of us like me who favour the union.

European Union Referendum Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Wednesday 4th November 2015 Lords Chamber

[Lord Kerr of Kinlochard]

As so often, I wish that we had a Scottish nationalist in this Chamber to respond to the noble Lord’s points, with most of which I agree. I bow to no one in my respect for the noble Lord, Lord Wigley. His was a very moving speech and I agree with his description of the difficulties that could arise were different results to occur in the different parts of the kingdom. I think he is correct about that. I think his solution is absolutely wrong. I cannot support his amendment.

The amendment in the names of the noble Lords, Lord Wigley and Lord Liddle, is probably unnecessary because I suspect that the votes will be counted separately in any case; I would hope so because there will certainly be rumours about what the result has been if it is close and it would be far better that there should be something on the record. With respect to the noble Lord, Lord Forsyth, it is a little harsh to accuse the noble Lord, Lord Liddle, of being a violent Scottish nationalist because he has put his name to that amendment.

There is a fundamental issue with Amendment 61C. The noble Lord, Lord Wigley, proposes a quadruple lock in the situation in which, say, England has voted to leave the European Union and Northern Ireland has, by a very narrow majority, voted to stay in. If the noble Lord’s amendment was carried and became the law, we would stay in. That seems an unacceptable situation. I agree with the noble Lord, Lord Forsyth: it is a United Kingdom decision.

It is important to note that we have no threshold requirements in this referendum and we have had no amendment in Committee proposing that there should be a threshold. That is constitutionally quite surprising for a decision as big as this. The precedent would lead one to think about a threshold. I would not have wanted a threshold. I would not have wanted a supermajority, as in the precedent in Scotland in the 1970s. I do not like referenda but the essence of a referendum is that you win or lose. It is clean; it is 51% to 49%, for example. If 51% are in favour of our leaving the European Union, we will leave, and we should not create any fudge round that. This is a yes/no decision, and if you decide to go, you go. The double referenda theory attributed to Boris Johnson, which he appears to have come off—that if the decision was to go, there would be another negotiation in which the foreigners, astonished and timorous, would come creeping, offering us far better terms to stay in—is nonsense. If the country votes to leave the Government will be required to invoke Article 50 and start the process of coming out. It has to be clean. I say to the noble Lord, Lord Wigley, that I think he is correct in his description of the difficulties that would arise, but the difficulties which would arise if his amendment were the law of the land would be much greater.

[Lord Forsyth of Drumlean]

The noble Lord said that if the country voted to leave the Government would invoke Article 50, but surely that does not follow. It would be possible for us to remain in negotiations having voted to leave and then subsequently invoke Article 50, would it not? He is the expert.

[Lord Kerr of Kinlochard]

I do not know what form these negotiations would take. I think that the position of a Government who said, “Okay, we have heard the nation speak, but now we are going to go and negotiate something else with Brussels. We are not acting on the decision the country has taken”—

[Lord Forsyth of Drumlean]

My point is that if you invoke Article 50 you are then no longer a member and it does not necessarily follow that that would be the most appropriate way of dealing with it. You could remain as a member and negotiate our withdrawal and then use Article 50.

[Lord Kerr of Kinlochard]

Actually, you are a member while the Article 50 negotiations are proceeding. You are a member of every council. Your MEPs do not leave the European Parliament, your judges do not leave the court and your Commissioners do not go home. The only difference is that in the Article 50 negotiations you do not have a vote on the position of the EU—the position that it has in its negotiation with you. That is all. You remain a member throughout the period of the Article 50 negotiations unless you decide unilaterally to go home. You do not have to do Article 50 at all. If you want you can just stop paying the bills, stop turning up at meeting and in due course it will be recognised that you have gone. It is not the case that once you invoke Article 50 you are no longer a member of the European Union.

European Union Referendum Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Monday 2nd November 2015 Lords Chamber

[Lord Kerr of Kinlochard]

How kind of the noble Lord. Nothing was further from my mind than interrupting him in any way. I would like to get back to his Mystic Meg argument, which I am still trying to work out; my mind is very slow in these matters. That argument depends on the assumption that the noble Lord, Lord Turnbull, would be asking the OBR to forecast the future course of the world economy, the European economy and the UK economy if we came out or if we stayed in. I do not think that that is the case. The amendment in the name of the noble Lord, Lord Turnbull, asks that the OBR consider what would have changed—what the effect would be of coming out.

I myself would be happy to add to that, although I do not know if the noble Lord, Lord Turnbull, would, the amendment suggested by the noble Lord, Lord Blencathra, which seems to be perfectly reasonable. I follow his argument about staying in or coming out. The important bit would be: what would be different if we came out? The consequences of the differences is what one would be asking for. The Governor of the Bank of England addressed this question the other day, talking about what would have been different if we had not been in the single market for financial services. That is a perfectly reasonable question to ask. I would be happy to support the amendment in the name of the noble Lord, Lord Turnbull, and that in the name of the noble Lord, Lord Blencathra, but I do not understand the Mystic Meg argument, advanced by the noble Lord, Lord Forsyth, that somehow we are asking the impossible.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord for that intervention. The amendment refers to the,

“report on the effect of the United Kingdom economy of withdrawal from the European Union”.

In order to do that one would need to take a view on what is going to happen to the euro and if there is someone in the Office for Budget Responsibility who knows the answer to that question, I have to tell them they could be a billionaire tomorrow.

Of course no one knows what is going to happen to the euro. I agree the probability is that it is not going to survive unless there is very substantial further integration within the European Union but no one knows to what extent that will be possible. For example one can look at the attitudes towards the problem of mass economic migration into the European Union and the chaos which the members of the European Union are in at the moment and their inability to agree. Does anyone in the Office for Budget Responsibility know how to predict the outcome of that matter?

The noble Lord, Lord Kerr, is expert at dealing with the European Union. I can remember as a Minister arriving at meetings and he had already prepared the compromise that we would accept and the press release which announced a great victory by Ministers over the European Union to be released before we had even got off the plane. I know that he believes very much in the opportunities for flexibility in matters of wording but the wording on this amendment is asking the Office for Budget Responsibility to do the impossible—to tell the future. In so doing they will almost certainly get it wrong, like the Bank of England and everyone else who tries to tell the future, and that will damage their constitution.

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[Lord Forsyth of Drumlean]

The noble Baroness is now pulling my leg if she thinks that that argument has any substance. I am simply making the point that the whole thrust of the argument that we have had in terms of producing reports from those who wish us to stay in the European Union have been about “hanging on to nurse for fear of something worse”.

[Lord Kerr of Kinlochard]

I do not know whether the noble Lord has noticed but the fact is that we are in the European Union now, so the question for the electorate is, “Shall we leave?”. The argument that he is just making would be very good if we were not in the European Union and the question was, “Shall we join?”. Then I would be required to try to demonstrate to him that there would be benefits. However, the question for this referendum is, “Shall we stay or shall we leave?”. That is the issue.

[Lord Forsyth of Drumlean]

I entirely agree with the noble Lord about what the issue is. I will not repeat the same arguments, because I can see that the Whip is beginning to twitch and is thinking about the dinner hour.

European Union Referendum Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Monday 2nd November 2015 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

Amendment 24 is in my name and those of the noble Baroness, Lady Morgan of Ely, the noble Lord, Lord Tugendhat, and the noble Baroness, Lady Smith of Newnham—a perfectly balanced ticket.

I begin by saying:

“Those campaigning for Britain to leave the EU and choose the Norwegian way can … correctly claim that a country can retain access to the single market from outside the EU”.

But this means also,

“retaining all the EU’s product standards, financial regulations, employment regulations, and substantial contributions to the EU budget. A Britain choosing this track would, in other words, keep paying, it would be ‘run by Brussels’, and … remain committed to the four freedoms, including free movement”,

of persons. It would, however,

“have given up on having a say over EU policies. Like Norway, it would have no vote and no presence when crucial decisions that affect the daily lives of its citizens are made”.

These are not my words but those of Espen Barth Eide, a former Europe Minister in Norway, last week. On his financial point, it is worth noting that the noble Lord, Lord Hannay, correctly pointed out that we are now the ninth largest contributor to the EU budget in per capita terms. The 10th largest is Norway.

If noble Lords do not believe Mr Eide, they might try the Norwegian Conservative Party’s current EU spokesman, Mr Nikolai Astrup. His advice is simple: “If you want to run the EU, stay in; if you want to be run by the EU, feel free to join us in the EEA”.

[Lord Forsyth of Drumlean (Con)]

Could the noble Lord tell us on how many occasions in the last five years we have expressed a view in opposition to a particular EU policy and on how many occasions we have been defeated in percentage terms?

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[Lord Kerr of Kinlochard]

I had assumed that the principal interest of the noble Lord, Lord Hamilton, was making sure that we managed, as some sort of country member or associate, to remain within the single market. The Koreans have no such rights. They have a very good free trade agreement, which is greatly in the UK’s interest, and has produced a considerable increase in UK exports to South Korea.

There is no doubt that the UK could secure a free trade agreement with the EU. That is not an issue. But if we want access to the single market, we need more than a free trade agreement. That is why the Norwegians are in what is known as EFTA and the EEA and why they are complaining about their relations with the EU.

The noble Lord, Lord Forsyth, told us that nobody in Norway wants to join the EU. Actually, the entire Norwegian establishment would like to join the EU but has not, as yet, managed to persuade the Norwegian public of that.

[Lord Forsyth of Drumlean]

It sounds just like us. I have read in a newspaper—so it may be wrong—that on the last 77 occasions when Britain has sought to amend a provision that it did not like, it has been defeated. Is the noble Lord aware of that? If that is the case, I question whether, by being in the room, we have influence. We have influence only if we are able to persuade the room. We seem to be singularly unable to do so.

[Lord Kerr of Kinlochard]

I hope I may leave it to the Minister to deal with the allegation that on the last 77 occasions when we have expressed views and wished to change a piece of legislation we have been overruled. I would be completely astonished if there was any truth in that statement.

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[Lord Forsyth of Drumlean]

The noble Lord must go on because he is making my case for me. He is saying that we do not want politicians and that we need to think of another word for “autonomy”. How about “dictatorship”? If by EU decision-making autonomy you mean, “We don’t want politicians”, then that is dictatorship. Politicians, however much they may be despised or disliked, are accountable to the electorate. These people are accountable to no one, and we are now being told that we cannot possibly go against the EU decision-making autonomy.

[Lord Kerr of Kinlochard]

The noble Lord, Lord Forsyth, is making marvellous campaign speeches; I think that our job is to address the Bill and the amendments. I was trying to give an analytical speech, assessing the various models and the possibility of a sui generis, something-completely-different Stoddart model. When I used the words “decision-making autonomy”, I was using words which are quite common in the Council, in the Parliament and in the court; I was not referring to the Commission.

[Lord Forsyth of Drumlean]

Yes, you were.

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[Lord Kerr of Kinlochard]

Yes, I said that the Commission would be the spokesman in the negotiation, but its concern would be to preserve the autonomy of EU decision-making—which the European Council regularly insists on and insisted on in relation to the changes to the arrangement with Switzerland. If you are not a member of the club, you do not have a vote on club decisions. That is all it means.

[Lord Forsyth of Drumlean]

I will come on to address these points, because I took the opportunity of checking a few facts. For example, just before the dinner break, I did not know why when we were supposed to be discussing what is in Britain’s interest we continued to discuss what is in Norway’s or Iceland’s interest—but, as people have raised it and have said they want facts, I have found the following quote from the Icelandic Prime Minister from June this year. The noble Lord has already read this quote, but he did not put it in his speech. The Icelandic Prime Minister said:

“'For us staying outside of the European Union has been very important, even instrumental in getting us out of the economic crisis so it has affected us in positive ways, giving us control over our own natural resources, but also having control over our own legislation and our own currency, which if we had not had that, we would not be in the situation where we are now with a very fast improving economy”.

When I said earlier that nobody in Norway wanted to join the European Union and I was shot down and told by the noble Lord that the establishment wanted to join the EU, I thought that I had better check what the position was. I found that seven out of 10 Norwegians would reject EU membership and just 19% would like to join. Seventy-four per cent would say no to Norway joining the EU, with 17% wanting to join—these figures are from an opinion poll in 2014.

The noble Lord mentioned Switzerland. According to a 2012 poll for the Swiss Broadcasting Corporation, just 6% of Swiss voters favoured joining the EU against 63% who want the present bilateral arrangements preserved, and 11% who want to join the EEA. There does not seem to be any great feeling in either of those countries that they have made some dreadful mistake; on the contrary, they seem very happy. The Norwegians are very happy with their fish, their oil and their prosperity.

Then we have the bogus argument that says that if you are outside, you have to accept a huge amount of legislation which you would have no say over. I do not know whether the figures in the Daily Telegraph—the noble Lord tells me that that is where they were from—that say that the last 74 times we have objected to things we have been defeated are correct, but those people who argue that we need to stay in to have a say should tell us how effective that say is because the evidence is that it is not very effective. The noble Lord, I know, has conspired with me and other Ministers to turn defeat into an apparent victory in drafting the press release after one such defeat.

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[Lord Forsyth of Drumlean]

My Lords, I am very conscious that I must not irritate the noble Lords, Lord Hannay and Lord Kerr, by making a campaigning speech. Having looked at my amendment, Amendment 25, I am at a loss to think how one could turn this into a campaigning speech. It is clearly an amendment that should be acceptable to all noble Lords in the House, including to my noble friend the Minister.

[Lord Kerr of Kinlochard]

I do not in any way wish to interrupt his flood. I merely wish to tell him that I support his amendment.

[Lord Forsyth of Drumlean]

I am now having doubts. I am not surprised that the noble Lord supports the amendment, because it is a very sensible one. All that it does is seek to ensure that when the Prime Minister has finished his negotiations we have some kind of government publication that tells us what they were about, what their outcome was and what the implications would be for our continued membership of the European Union with those changes, if he so recommends, or the alternative.

The amendment is drafted in neutral terms and I hope that my noble friend might be able to accept the principle. I do not think that it is too much to ask. In my noble friend’s Second Reading speech, he hinted as much. The Chancellor of the Exchequer said in the early part of the summer that there would have to be some sort of paper. There are none of the issues that we have had to discuss earlier this evening arising from the debates that we had on publications of the benefits of being in and out. This is completely straightforward. What did the Prime Minister want? What did he get? What will be the effect on our relationship with the EU and what is the outcome? I beg to move.

European Union Referendum Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Wednesday 28th October 2015 Lords Chamber

[Lord Forsyth of Drumlean]

My noble friend is absolutely right, but even the noble Lord, Lord Liddle, could not keep a straight face. He said that his tongue was in his check. I do not know where his tongue was, but certainly the arguments coming from it were not very persuasive.

I actually got up to speak in favour of the amendment in the names of my noble friends Lord Hamilton and Lord Flight. Perhaps we have taken up a lot of time unnecessarily, because I assume that my noble friend the Minister is going to accept the amendment. Clearly, there can be no arguments against accepting it. The Government have given undertakings that they will not bounce us into a referendum campaign, and what better opportunity is there than this to put them on the face of the Bill? Ministers have already given those undertakings, so they must be government policy. The amendment is in order, so I expect that my noble friend will say that she accepts it. Therefore, I will not delay the Committee by making the arguments for it.

However, I would like to mention our experience. When I referred to the noble Lord, Lord Foulkes, as my friend, I was referring to him as a fellow unionist—as unionists campaigning in the referendum in Scotland. Then, we started off with about 28% of the vote in favour of independence and ended with 45% in favour of it. We allowed the Scottish Government to decide the length and date of the campaign, as well as the question, and that was a huge mistake. As a result, following that referendum people like me are going around saying, “Well, it wasn’t actually a fair contest because the rules were set by one of the participants”. I do not know what the Government’s position will be after these negotiations, but it is very important that we have notice of the campaign; otherwise, we will have a sort of “neverendum” starting now, with the possibility of the Government jumping us into a short campaign, which would mean that it would not be possible to get across these arguments.

The Government have said that they will do nothing of the sort, which is why I expect they will accept this amendment. However, I want to make the point that it would also be entirely consistent with the policy of the Government—both as a coalition Government and as a Conservative Government—who gave us the Fixed-term Parliaments Act. I was against that Act, but the Government’s argument was that it was completely unfair to allow a Prime Minister to have the patronage of deciding the date of the election and that people should know what the position was. Therefore, if we accepted the amendment of my noble friends Lord Hamilton and Lord Flight, we would know that we had at least a 10-week period in which to campaign, and I think that that would be seen as fair.

Yesterday we did not accept the advice of the Electoral Commission on the grounds that its role was to advise, and I thought that the argument put forward by my noble friend Lord Bridges was absolutely persuasive. However, I cannot think of a single argument that one could deploy against taking the advice of the Electoral Commission to accept the Government’s undertaking. That leaves one argument. When I was a Minister and I was absolutely desperate to find an argument to support not agreeing to an amendment for which the arguments were overwhelming, I would say, “It’s not necessary to put it on the face of the Bill because the Government have already given this undertaking”. I have the utmost respect for my noble friend and I hope that she is not going to deploy that argument, for there is nothing to be lost by accepting my noble friends’ amendment.

[Lord Kerr of Kinlochard (CB)]

I am going to disappoint the noble Lords, Lord Hamilton and Lord Forsyth. The sad fact is that I find myself in agreement with them. I do not agree with all that the noble Lord, Lord Forsyth, said this afternoon. Indeed, I had to wait until close to the end of this, his second Second Reading speech, to find the point at which I agreed. I agreed with the noble Lord, Lord Hamilton, and I agree with his amendment. I, too, have a worry about timetables and I, too, know what the Government’s assurance has been. Since that assurance has been given, why should it not be in the Bill? My particular worries about purdah are not exactly the same as those of the noble Lord, Lord Hamilton, but we will discover that when we come to later amendments. However, it seems to me that Amendment 1 has to be correct, and I hope that the Government will buy it.

The noble Lord, Lord Liddle, provoked a lively debate on Amendment 2, and we should be grateful to him. However, it seems absolutely clear to me that the Bill should not be amended as he proposes. We are operating on the basis of the Conservative Party manifesto, which the country voted for. It is clear that the referendum must happen by the end of 2017. For us to play with the idea of an extension would be extraordinarily dangerous.

As the noble Lord, Lord Liddle, took the opportunity of pointing out, it is the case that it is not possible on that timescale to secure treaty change. When the strategy was first unveiled, in the Bloomberg speech, there was time for the five stages that treaty change must go through; the final stage being national ratification, in some countries by referendum. It would have been possible then, but it is not possible now—we all know that. Therefore, the point about honesty was a little overdone, because the country is well aware that a treaty change is not securable on that timescale. However, I think that the noble Lord, Lord Liddle, was only teasing, and we should move on now from this second Second Reading and get back to the detailed scrutiny of the Bill. I support Amendment 1 and oppose Amendment 2.

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[Lord Forsyth of Drumlean]

My Lords, perhaps I might respond to the point made about the position in Scotland. I am really very surprised to hear the noble Lord, Lord Kerr, advancing a naked party-political reason for operating in this way on a matter such as the franchise. He basically said that it would be in the interests of unionists to alter the franchise in a way which may or may not be desirable, and which has not been considered in the round, because otherwise the SNP would be able to make political capital. That is not a reason for doing so.

Whether this is about 18 year-olds or 16 year-olds voting, I do not think that they would vote on whether or not we should remain in the European Union because their younger brothers or sisters were not given the vote. They are probably mature enough to reach a different view. I would also point out that the SNP did not win 95% of the seats and 50% of the vote in Scotland because of the concern amongst youngsters that they did not get the vote in the general election but had it in the referendum. The noble Lord, Lord Kerr, is normally absolutely as sharp as a tack, but perhaps getting involved in this rough trade of politics is tainting him in a way which I would never have thought possible.

[Lord Kerr of Kinlochard]

I am disappointed to hear that the noble Lord, Lord Forsyth, is shocked and disappointed. I merely made the point, which I will repeat in case it was not fully understood, that if this amendment is not accepted the perception in Scotland will be that, while Edinburgh gives the 16 and 17 year- olds the vote, London does not. It seems to me that that perception would be correct and could be damaging. When I say damaging, I confess that I am a unionist. I do not think that I am making a party-political point but I am a unionist, as is the noble Lord, and I hope that we can agree on something.

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[Lord Kerr of Kinlochard]

I can remember the days when the Conservative Party was a very strong believer in the Commonwealth and I rather wish that the noble Lord, Lord Howell of Guildford, was here to join us and give us his views. I am in favour of maintaining Commonwealth ties. My father-in-law, a New Zealand Rhodes scholar, came here as a young man, spent 70 years here, wore the King’s uniform in the war, paid his taxes and never failed to vote. He voted in the 1975 referendum. I would think it a pity if people of that kind were denied a vote in this referendum.

I believe that the noble Lord, Lord Green of Deddington, whom I have known for 50 years and regard as a close friend, is completely wrong on this issue. It is uncomfortable to be caught between the noble Lords, Lord Hannay of Chiswick and Lord Green of Deddington, but we are a rough lot in the Foreign Office and I have learned to put up with it. In my view, there is a very serious immigration issue in this country but the issue is how best to integrate immigrant communities, and that is not best pursued by curtailing their rights.

The strongest argument against the amendment is the Irish one. We all know the long, sad history and the importance—and futility—of the settlement. I think that it would be most unwise to think of reopening that issue now, and I hope that the noble Lord, Lord Green, will withdraw his amendment.

[Lord Forsyth of Drumlean]

My Lords, I support the noble Lord, Lord Green, who made a compelling case. I thought that what we were discussing was not the future of the Commonwealth, our relations with the Commonwealth or our relations with Ireland but how we would give the British people an opportunity to decide whether their future was in the European Union. It seems to me that the noble Lord, Lord Green, is rightly arguing that British citizens and no one else should be the people to make that decision.

I must congratulate the noble Lord. It is the first time that I can remember in 30 years when the noble Lord, Lord Davies, has been reduced to total silence. He was stopped in mid-sentence when it was pointed out to him that in Irish referendums British citizens do not have a vote. If I had been living in Dublin, I certainly would not have expected to have a say—

English Votes for English Laws

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Wednesday 21st October 2015 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, this is probably going to be the only occasion in my lifetime when I can get up and say that the person who has just made the speech that I was going to make is a former distinguished member of the judiciary. The noble and learned Lord, Lord Brown, has made all the points that I would have made. Indeed, so has everyone else; I agree with all the speeches that have been made so far.

I confess to a sense of weariness because I am running out of new things to say. I am also coming to the conclusion that it does not matter a damn what I say or what this House does; it is just going to be ignored and the Government will charge on regardless. The fact that it is more than 100 years since the House of Commons failed to respond to a Motion from this place—and a Motion that was passed by such a majority—is a scandal of the first order. I just wonder why we are here and what we are doing at 8.40 pm. What is the point?

The annunciator says, “The Government’s proposals on English votes for English laws”. These proposals are not about English votes for English laws; if you want English votes for English laws, you need to set up a Scottish Parliament. I am sorry, I meant an English Parliament. Of course, by setting up a Scottish Parliament, we provoked the situation that we are in today. However, English votes for English laws imply an English Parliament, an English First Minister and an English Executive. So if the point of all this is to satisfy the feelings of resentment that have occurred in England because of the existence of the Scottish Parliament, a false prospectus is being sold to the British people and to the English people.

For me, it is really quite weird that a Conservative Government with a majority—in the past I could have blamed the Liberals, but this is a unionist Government—are bringing forward proposals of this kind. If on the annunciator we had proposals for “Scottish votes for Scottish laws”, I suspect that people would be a little more careful in considering the implications for the United Kingdom as a whole—a point that was made by the noble Lord, Lord Tyler, and others.

The last time we debated this, my noble friend the Leader of the House denied that there was an English veto—but the word “veto” has now been accepted. I would be opposed to a Scottish veto in the United Kingdom Parliament, and I can see what Mr Salmond and his colleagues will argue when this goes through: that the Sewel convention—which we probably need to rename, in the circumstances—should actually be enshrined in statute, and that the Westminster Parliament should not be able to do anything that would be covered by the Sewel convention. That would be a very retrograde step.

I have been sitting for some weeks now on the Economic Affairs Committee; we have had extra sessions. We are taking evidence on the implications of devolution for the fiscal and other arrangements of the United Kingdom as a whole. I have to tell the House—I am sure that the noble Lord, Lord Kerr, who is also on the committee, will confirm this—that the advice we are getting from academics has on occasion reduced the committee to laughter because of the incoherence with which all these constitutional changes are coming together, and the inability of our expert witnesses to give assurances.

For example, one distinguished professor pointed out, on the subject of the impact of the changes that are proposed in the forthcoming Scotland Bill:

“If you do that, changes to English taxes affect the Scottish block grant, which I think is appropriate. However, if that is the case, you cannot possibly tell Scottish MPs that they are not allowed to vote on English income taxes, because there is no such thing as an English income tax that does not affect the Scottish block grant”.

In other words, the combination of the new powers being given to the Scottish Parliament, the retention of the Barnett formula and this new proposal to allow an English vote on English income tax will create a problem if you have English votes for English laws, in so far as the Scottish MPs who are not allowed to vote on English income tax will be able to say, “But that affects the block grant and so the Barnett formula, and therefore we are being disenfranchised”. That is a very important grievance of the kind that the noble Lord, Lord Reid, suggested.

I have been trying to think of an analogy to explain the Government’s piecemeal approach to constitutional reform and the difficulties and complexities it is creating. It is a bit like having an Uber driver without a sat-nav. We are going from one destination to another, not sure of where we are trying to reach and without the road map that is required—which could be produced if we had had a constitutional convention, and which might be available if we had agreed to a Joint Committee of both Houses to deal with some of the anomalies that would have arisen.

For example, my old constituency in Stirling, which I used to represent, is now represented by a Scottish nationalist MP. I have had him here for tea in the House so that he could be made aware of the excellent work that we do here, and a very fine chap he is. However, under these proposals, we will get to a situation in which he is elected and not allowed to vote on matters on which I am allowed to vote as an unelected Member of this Chamber. I feel a bit uncomfortable about that—it seems slightly anomalous. A lot of my former constituents who went to the polls to get me out—albeit that was many years ago; those of them who are still alive—might feel a sense of grievance that I am voting on matters which their elected Member is excluded from voting on.

I therefore say to the Leader of the House: I know that we do not have much of a majority here, but is the proposal that I should abstain on all these matters—that all Peers who come from Scotland should not vote on matters which have been determined in the other place? There is no such thing as a Scottish Peer—constitutionally that is right—but try telling that to people in Scotland if these proposals go ahead: you will get short shrift. That may be a narrow debating point. But we are faced with a situation where, in Scotland, thanks in part to the way we fought the general election campaign, almost all the seats are now occupied by one party, which every day sets out to find a reason why Scotland is being damaged by its relationship with the United Kingdom as a whole.

I do not want to repeat arguments that were made by others or that I put previously. However, I recall that the noble Baroness, Lady Boothroyd—who is not in her place—whom I voted for as Speaker, who did a fantastic job in the House of Commons and who has a very good understanding, warned about the difficulties that would be created for the Speaker. My noble friend says that this has been addressed, because he will be able to talk to two other MPs. What happens if those elected MPs have different and perhaps opposite views? The Speaker will have to take a decision, and the very position that the noble Baroness, Lady Boothroyd, referred to, of putting the Speaker in a position where they are politicised, comes into being.

[Lord Kerr of Kinlochard (CB)]

I agree, but it is even worse than that, because it is clear that the certification decision that the Speaker is required to take will be justiciable. That seems to make an enormous change, which will affect not just the House of Commons but the constitution as a whole.

[Lord Forsyth of Drumlean]

I remember the days when the noble Lord used to tell me what to do at European Council meetings. As always, he sees the wood when I could only see the trees. That is a very important constitutional change. It is a diminution of the status of the High Court of Parliament.

All the issues may seem to be anorak issues for constitutionalists but I say to my noble friend that this is not something of little importance, and it is a matter of great distress to me that the House of Commons should rush ahead with it by amending Standing Orders. In an earlier intervention, I pointed out the implications for income tax and what would happen under a Labour Government. I suppose that, as was said earlier, if things were done just by Standing Orders, then if a Labour Government had a majority in the House of Commons, they could simply alter the Standing Orders to remove the position that had been established in order to create a constitutional balance as a result of the extra powers being given to devolved institutions. That is wholly and absolutely unsatisfactory, especially in the context of a situation where there is no consensus among the parties as to how this could be achieved.

That is my final point, which I think I made on a previous occasion. I really do think that constitutional change should carry consensus. If we proceed on the basis that we think it would be a good wheeze to make a constitutional change or that it might advantage one party or another, then other parties will do the same when they are in power. As a result, people will lose faith in the integrity of the institution and it will be greatly damaged.

The Constitution Committee is going to look at these proposals and apparently we will have a year to consider whether they work—although, given our legislative programme, quite how we are going to do that remains to be seen. Will my noble friend consider once again whether it would be a good idea to set up some kind of body—we do not have to call it a constitutional convention—to look at all these issues? Will she also look at the implications of the Scotland Bill, which will be coming to this House, and how that will be affected by English votes for English laws, as they are being dubbed? All the evidence that I have seen indicates that there will be real and serious problems, which have not been resolved and which will do great damage to the relationships between the countries of the United Kingdom.

European Union (Referendum) Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Friday 24th January 2014 Lords Chamber

[Lord Kerr of Kinlochard]

I entirely agree with the noble Lord. The point that I am trying to make is: because the renegotiation is envisaged to take place before the referendum, the date set for the referendum in 2017 cannot be right. It does not work.

[Lord Forsyth of Drumlean]

I am struggling with this argument because we are going to have a referendum in September on whether Scotland should remain part of the United Kingdom. The proposition then is that the referendum should be held before the negotiation. I did not think that the noble Lord had any difficulty with the idea of that referendum.

[Lord Kerr of Kinlochard]

It depends on where you are starting from. It is not an easy position, but if the position of the noble Lord, Lord Forsyth, is that he wants to get us out anyway and we should not bother with renegotiation, that is fine. Why not? However, the Conservative Party’s position, as clearly explained in the Prime Minister’s Bloomberg speech—in which, by the way, he was speaking explicitly as leader of the Conservative Party, not as Prime Minister—was that he hoped to renegotiate a different relationship with Europe, put it to a referendum and recommend that we stay in the European Union. I am just saying that that timetable does not work. It does not add up.

At Second Reading, a lot of noble Lords commented on the date. A lot of noble Lords made the point—better than I am making it—of the unwisdom of locking the negotiators’ feet in concrete and putting them under time pressure. That is not a wise idea. The noble Baroness, Lady Falkner of Margravine, said the date was arbitrarily picked out of the air. We have not been told in this debate why it has to be 2017, other than that was the date in the Bloomberg speech.

Electoral Registration and Administration Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Monday 14th January 2013 Lords Chamber

[Lord Kerr of Kinlochard]

My Lords, I was sorry not to be in the House on Tuesday when tributes were paid to the departing Leader. What was said was very well said, I wish I had been there to say something too.

When my name appeared on this amendment, I was summoned by the noble Lord, Lord Strathclyde, to explain myself. There was a little bit of the headmaster’s study about it, but it was done with his customary style and charm. I will explain to the House why my name is on this amendment in exactly the terms that I explained it to the noble Lord, Lord Strathclyde. It is for reasons that are to do with Scotland. I believe that the largest threat at the moment to the constitutional settlement in these islands is the secession referendum in Scotland next year. The First Minister of Scotland is an extremely skilful politician, and one needs to be very careful of being complacent about where the public opinion polls are. The Scots, who are extremely good at grievances, have in the boundary changes and the changes to the number of constituencies, a very real grievance. Unusually for the Scots, the grievance is real. The reduction in the number of constituencies in England will be 6%, in Scotland it will be 12%.

When we were debating the Parliamentary Voting System and Constituencies Act, I argued several times that we should take due account when we were considering the size of constituencies and the size of the franchise—the 5% either way—we should take account of peripherality and sparsity, the distance from London, the difficulty of the MP’s job, and the difficulty of getting round the constituency if it was an enormous one. I remind noble Lords that the coastline of Argyll is longer than the coastline of France. If we look at the results, we see that leaving aside the four island constituencies, the two Scottish island constituencies, and the two on the Isle of Wight, the average Scottish constituency fetches up considerably larger than the average English constituency. This seems to be a perverse reading of the principles of peripherality and sparsity.

I do not wish to see this proceeded with in advance of the secession referendum in Scotland. It would be perpetually argued in the campaign that the numbers show Westminster less and less willing to listen to Scottish concerns and that defending Scottish interests requires secession, something I profoundly disagree with.

I remind noble Lords that the suggested reduction to 52 seats in Scotland is on top of the reduction from 72 11 years ago. The number went down in 2005 to 59, now it is to go down again to 52. The reason it went down in 2005 is to do with devolution. Once we have dealt with the secession threat, once we have secured the right result on the referendum, we need to come to the West Lothian question, but I do not believe that any of us in this House believe that the right answer to the West Lothian question is to make it more and more difficult for Scottish Members of the United Kingdom Parliament to do their job. I think that most of us believe that the right answer is to have Scottish MPs not voting in the Westminster Parliament on matters where they would be voting only on English, Irish or Welsh law. If we succeed, I think that we will have a chance to come back to the question. That is the moment when we should consider how many Westminster seats there should be for Scotland.

Urged by the noble Lord, Lord Strathclyde, and because I have great respect for the clerks, I have considered very carefully the question of relevance. I admit that I have considerable difficulty with a definition of “relevance” which is so narrow and so far removed from what the outside world would understand. The subject matters of the Parliamentary Voting System and Constituencies Act and this Electoral Registration and Administration Bill are inextricably intertwined. The argument was explained most clearly in our earlier discussion in Committee by the noble Lord, Lord Elystan-Morgan. The intertwining is particularly close during the present transitional phase as regards registration. Every constituency in the land is changed by the PVSC and it seems quixotic to use data which are so out of date and will be so radically altered by the new registration arrangements. The matters clearly are closely connected. We see from the quotation from Erskine May circulated with the Leader’s letter that amendments relating to the purposes of the Bill, if it has only one or two purposes,

“or touching on matters closely connected with them”,

can be considered as relevant. I cannot conceive of anything more closely connected than the issues that we are talking about now.

Were we in the House of Commons, and were we being guided by Erskine May, there would be no question but that this was an admissible amendment to the Bill. After deep thought, I am encouraged to stick to my guns by the advice that we heard from the noble Baroness, Lady Boothroyd, when she told us of her experience in handling such tricky matters in the other place. I was heartened by what she said. She urged us to rise to our responsibilities. It is for us to decide; we cannot delegate that task to the clerks to decide for us. It is for us to make up our minds, and it is in that spirit that I maintain my support for the amendment and hope that the Committee will vote for it.

[Lord Forsyth of Drumlean]

My Lords, I was intrigued as to why the noble Lord had put his name to this amendment. I was particularly intrigued, because of his background as a very senior civil servant whom we all held in very high regard, as to why he would go against the principle, which has been upheld in this House, that we accept the advice of the clerks. The noble Lord is arguing is that, where the players on the field do not like the result, they should have a vote on whether they agree with the referee. The noble Lord prayed in aid the noble Baroness, Lady Boothroyd, for whom I have even more regard—indeed, I voted for her as Speaker in the House of Commons—but the position in the other place is completely different. They have a Speaker, and I say to the noble Lord that, if we go down this road, we may very well end up with such a situation in this House, which would be a very bad thing indeed.

However, it never occurred to me for a moment that the noble Lord would bring Scotland into the argument. He takes as his title, Lord Kerr of Kinlochard. Kinlochard is at the bottom of the loch by which I live; I look at Kinlochard. I have to tell the noble Lord that the people in Kinlochard are not beset with the question of how many Members of Parliament represent them. In fact, their view of Members of Parliament is probably best not repeated in this House. To argue that the nationalists will use the legislation to exploit opposition to the United Kingdom is utterly ridiculous. Alex Salmond wants there to be no Members in the House of Commons from Scotland and to argue that he is going to be concerned by a reduction in the number of Members is ridiculous. To be fair to the SNP, it has always accepted that in return for more powers—which they call devo-max—there should be a reduction in the number of MPs. This is a wholly spurious argument. If the noble Lord had said that he was supporting this amendment because he thought it would help the Labour Party to win the next election, I could have understood the argument, but I have to say that his argument cuts no ice with me at all.

What is the origin of this? How have we got into this mess? Why are we faced with this problem? The answer is that the Deputy Prime Minister is cross. He is cross that, despite repeated warnings, his Bill—which was not properly thought through—crashed on landing in the other place. He said something quite extraordinary the other day. Before he had even heard the Prime Minister’s speech which is to be made in Europe, he said that he was going to go to Europe in order to translate the Prime Minister’s speech on Europe from double-Dutch to Dutch. What we are seeing today is that the Deputy Prime Minister is capable of going from cross to double-cross, because that is what this is. It is a double-cross.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Tuesday 24th April 2012 Lords Chamber

[Lord Forsyth of Drumlean]

What about the amendment?

[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.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Wednesday 28th March 2012 Lords Chamber

[Lord Kerr of Kinlochard]

My Lords, I do not want to repeat what I said in Committee on this. Although I am sure there is much force in some of the points made by the noble Lord, Lord Lang, they are no doubt points that the Scottish Parliament would have in mind, were it minded to exercise the power that this clause would confer upon it. I do not agree with the noble Lord, Lord Forsyth of Drumlean, that there is some constitutional impropriety. I do not understand his constitutional argument.

The constitutional principle in regard to taxation is that those paying the tax—those on whom it will be levied—should have voted for it. I see no constitutional objection to the Scottish Parliament having the power to levy another tax, given that only Scots or people resident in Scotland will be paying it. As I said before, I see no difficulty about them having the power to vary an existing tax, for example the rate of VAT. I do not see a constitutional principle there. I referred in Committee to the example of differential sales taxes across the United States of America. There are many taxes that are different between states.

I conclude my remarks by saying that I see a lot of sense in the amendment we will come to in a moment, which suggests a procedure and safeguards that could be built into the system, which I could support. I also understand the economic arguments that the noble Lord, Lord Lang, advanced and it is very important that they should be in the minds of the Scottish Parliament when it chooses whether to exercise the power conferred on it here, but I cannot see the constitutional principle. I do not follow the ship money argument.

[Lord Forsyth of Drumlean]

It is very straightforward. We are talking about devolution here, not about establishing a federal system. As someone said, although I cannot remember who, power devolved is power retained. The ability to create a completely new tax—a window tax, or whatever—has to reside with the other place down the Corridor. Within our constitution, in order to create a new tax, you have to have a finance Bill. It used to have to be on the Floor of the House of Commons when it came to Committee, and there is a set of procedures that needs to be followed. It is completely different from devolving the power to set a rate of tax, which this Bill purports to do and is the commitment made in the manifesto.

My constitutional problem is that that ability of the House of Commons to discuss, through a long-standing procedure, the imposition of taxation is being undermined because all that it requires now is an Order in Council, which by convention cannot be voted on in this House and cannot be amended. That is no basis upon which to create new taxes on the people. It is the nature of the procedure that is the constitutional outrage as far as I am concerned, not the nature of giving the Scottish Parliament the ability to raise a particular tax.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Wednesday 21st March 2012 Lords Chamber

[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.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Thursday 15th March 2012 Lords Chamber

[Lord Kerr of Kinlochard]

The noble Lord, Lord Forsyth, has drawn attention to a point of principle here. Creating special categories is, by definition, undesirable. It is probably the case that every single person who meets the three categories listed here would qualify as having a close connection under the other tests of what a close connection is. It is very unlikely that any of them would not meet the test of residence and the number of days resident, so why create this special category? I cannot see a practical argument for it but I see an argument of principle against it.

[Lord Forsyth of Drumlean]

My Lords, I do not think the Minister made the case for having this in the Bill when he was trying to give an example of someone who might be caught, notwithstanding the reminiscences of former Liberal MPs for Scotland, or whichever party they were from. This does not exist nowadays. If you were an elected Member and there was an idea that you were avoiding Scottish income tax, the practicalities would be death and destruction. The measure is completely unnecessary. As the noble Lord, Lord Kerr of Kinlochard, who was advertised on the annunciator as the noble Lord, Lord Norton of Louth—I say this in case Hansard gets it wrong—said, this is a bad principle.

On the earlier amendment, I referred to there being a real injustice in respect of the armed services and I was arguing for a specific provision for them. My noble friend responded by saying, “We think that the existing tests cover it and therefore I am not going to do it”. I cannot reconcile these two competing bits of logic. If his position is that the criteria provide a clear view as to whether or not you are caught, why single out Members of Parliaments? I suspect its origins can be found back in the debates about the impact of a Scottish income tax and whether Scottish MPs would be caught, and that has been written into the Bill.

The provision is completely unnecessary and I hope that my noble friend will think about taking it out. Apart from anything else, it would reduce the number of column inches of legislation which a Government committed to it would produce. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Kerr of Kinlochard]

My position is diametrically opposed to that of the noble Lord, Lord Forsyth, on the general power. I agree with him that it would be good not to have the accountability element so heavily dependent simply on the extra tranche of income tax. However, it is up to the Scots to decide how or if they wish to move further, and on which taxes. The general power seems wholly reasonable, and for us to pick and choose air passengers or whatever seems a rather bad idea.

Mine is not a complete laissez-faire position. As I said in my debate with the noble Lord, Lord Sewel, on a previous day in Committee, a counterpart to a general power is a mechanism for neutralising the macroeconomic effect. You would be very rash to start to recreate the situation that we have seen in the eurozone with Greece and Germany. That is why I am very nervous about having devo-max or devo-plus, unless and until the monetary or borrowing consequences of greater fiscal autonomy are spelt out. When we come to the borrowing bit of the Bill, I will have something to say.

I do not know what the right rate is for air passenger duty, and I consider it irrelevant to the debate on the Bill. I doubt very much that Mr Salmond, with his green credentials, would follow the noble Lord, Lord Forsyth, in thinking that a lower rate would be the right one. There are many taxes other than this one that he might prefer to lower. But it is up to them, following the procedure that would require consultation with us. The lead should come from them.

[Lord Forsyth of Drumlean]

The noble Lord says that it is up to them. They want this power and Calman recommended it, and it is not in the Bill because the Government have not included it, even though they have been telling us that the Bill will implement the Calman recommendations. The legislative consent Motion that was considered by the committee of the Scottish Parliament specifically requests that it should be a condition of Scottish consent to the Bill that the air passenger tax should be included.

[Lord Kerr of Kinlochard]

As always, the noble Lord, Lord Forsyth, follows precisely the recommendations of the Scottish Parliament committee.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Tuesday 28th February 2012 Lords Chamber

[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?

--- Later in debate ---

[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 Forsyth of Drumlean]

My Lords—

[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—

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Kerr of Kinlochard

Thursday 26th January 2012 Lords Chamber

[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.