Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Foulkes of Cumnock]

It is appropriate that these amendments follow those we have just been discussing, 3 and 18. I am pleased that four very distinguished lawyers will participate in this debate, as well as the Minister, who is an equally distinguished lawyer. I should explain that I am not a lawyer—although, mind you, that will become blindingly obvious during the course of what I have to say. These are very much probing amendments. I, like the vast majority of members of this Committee, hope that we will not have Clause 2. However, if we have it, we will need some clarification. I will therefore confine myself just to some questions for the Minister.

On the question of the appropriate national authority, in the Bill there are two different options in relation to Scotland. First, there is approval by Scottish Ministers—it would be for the Scottish Government to decide—or approval by the Secretary of State with the consent of Scottish Ministers. Will the Minister explain the difference between the two? How is it decided which of these two is appropriate, and who decides whether it should be approved by Scottish Ministers or by the Secretary of State with their approval? Will it be clear which treaties are UK treaties, dealt with by UK legislation, or by Scottish legislation? Of course, this applies equally to Northern Ireland, although my amendments do not apply to that. Does the Minister envisage that there might be a dispute between the devolved Governments and the United Kingdom Government? We have seen a few of those recently, sadly. If so, how would the question of who would be responsible for resolving the disputes be resolved?

Secondly, are there likely to be any cross-border elements that apply both to Scotland and to England and Wales in this case, and if so, how would they be dealt with? For example, could custody of children create any difficulties? We have seen the problems regarding people moving over the border to deal with or to avoid custody being taken by one parent or the other. Could that create difficulties?

Thirdly, English law and Scots law are different with regard to issues such as power of attorney. Could power of attorney which was dealt with in one jurisdiction be different and not applicable in another jurisdiction, and would that create problems?

Fourthly, on global contract law, which, again, is one of the treaties and part of the Bill, is there an issue of which jurisdiction might settle any dispute? If so, would this go to the English or Scottish court? How would the dispute be decided, and by whom?

Finally, this Bill requires a legislative consent Motion of the Scottish Parliament. I understand that that Motion has been lodged. When does the Minister expect it to be dealt with, and does he envisage that there will be any problem? Those are my questions for the Minister. I look forward to his replies, and to the interventions of distinguished lawyers, including, in particular, two Scots lawyers of great distinction. With that, I beg to move.

[Lord Wallace of Tankerness]

My Lords, as the noble Lord, Lord Foulkes of Cumnock, has said, it is welcome that we have this opportunity to probe. In his Explanatory Statement, which appeared next to this amendment on the Marshalled List, the noble Lord said that it was

“to explore whether conflict might arise as to whether it is the responsibility of Scottish Ministers or of the Secretary of State in consultation with Scottish Ministers.”

But, as he indicated in his remarks just now, that is not actually in the Bill, which speaks of

“the Secretary of State acting with the consent of the Scottish Ministers”.

That is a crucial difference.

There is no doubt that negotiating or joining an international agreement on private international law is a reserved matter for the Government of the United Kingdom as a sovereign state. Equally, there is no doubt that private international law is a devolved matter. Section 126(4)(a) of the Scotland Act makes that expressly clear. Therefore, the implementation of these agreements is within the legislative competence of the Scottish Parliament.

It is right, therefore, that Scottish Ministers should be one of the appropriate national authorities. Equally, there will be occasions—perhaps a number of occasions —when it makes sense for the United Kingdom Secretary of State to make regulations with respect to the whole of the United Kingdom with the consent of Scottish Ministers. In paragraph 8 of their legislative consent memorandum, the Scottish Government draw attention to this fact:

“In 2018, the Scottish Ministers (with the approval of the Scottish Parliament) consented to two UK statutory instruments … including devolved material relating to the 2005 and 2007 Hague Conventions.”


So there is a very recent precedent for regulations to be made in the sphere of private international law. It has been done by a United Kingdom statutory instrument, but with consent not just in the case of Scottish Ministers but with the approval of the Scottish Parliament. These are often pragmatic matters, but the fact that it requires consent means that the UK Government cannot override the Scottish Parliament. The noble Lord, Lord Foulkes asked whether the legislative consent Motion has been passed; I checked yesterday—I do not think it has. But paragraph 19 of the Scottish Government’s memorandum says:

“The Bill is drafted to respect the devolution position: the Scottish Ministers make provision for implementation in Scotland with UK Ministers only being able to do so with the consent of the Scottish Ministers. Legislation in this area has in the past been taken forward on a UK basis and it may be convenient for it to be so in the future so the Scottish Government recommends this approach.”


There is one final matter which is not really germane to the terms and text of the amendments but I shall be grateful if the Minister is able to respond. Given that the implementation can be a matter for the Scottish Government, what engagement is he aware of with Scottish Government officials in some of the negotiations on these private international law agreements? For example, two agreements are referred to in paragraph 53 of the Explanatory Notes of the 2019 Singapore agreement and the 2019 Hague Convention. Is the Minister aware of any engagement or involvement by Scottish Government officials? Quite clearly, if the next step is implementation, it is important that Scotland is a party to these negotiations, albeit at the end of the day, as responsibility for joining these international agreements rests with the United Kingdom.

European Union (Withdrawal) Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, the amendment stands in my name and that of the noble Lords, Lord Foulkes, Lord Adonis and Lord Dykes. This is very much a probing amendment and I do not intend to detain the Committee long, as the issues are quite clear.

Clause 2 refers to EU-derived domestic legislation that has,

“effect in domestic law on and after exit day”,

and then goes on to explain what EU-derived domestic legislation means. If we then fast forward to Clause 14, we see that an enactment,

“means an enactment whenever passed or made”.

We are trying to get some certainty into what is meant by that—and I shall come on more specifically to enactments of the Scottish Parliament.

We are seeking to probe what is intended by this. For example, if an enactment has been made but the commencement of a particular provision is not until a date post exit day, what is the status of that? Is it intended to refer only to those enactments when an Act has been made but there has been a commencement before exit day?

Let us look specifically at Acts of the Scottish Parliament—Acts of the Welsh Assembly may well come into a similar category. Paragraph 100 of the Explanatory Notes, which refers to similar phraseology in Clause 5, states that,

“an Act is passed when it receives Royal Assent”.

The Scotland Act 1998, Section 28(2) states:

“Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent”.


So there are two stages—passed by the Parliament and then receiving Royal Assent. Amendment 342, in my name and that of my noble friend Lord Thomas of Gresford, seeks to give clarity that this will be an enactment when it has received Royal Assent.

There is an argument that it should be an enactment when it is passed by the Scottish Parliament or the Welsh Assembly. I took the view that it was preferable to make it after Royal Assent because there are some reasons why between being passed by the Scottish Parliament and receiving Royal Assent it could be derailed. As the noble and learned Lord, Lord Keen, as Advocate-General for Scotland will know only too well, in whichever capacity he is appearing at the Dispatch Box, he has powers under Section 33 of the Scotland Act to refer to the Supreme Court a Bill or any provision of a Bill which he believes may not be within the legislative competence of the Scottish Parliament. He has to do that within four weeks of a Bill being passed by the Scottish Parliament, and then it would be a matter for the Supreme Court as to how long it took. So you may have an enactment, or a piece of legislation—let us put it neutrally like that— which has actually been passed but may go to the Supreme Court and the Supreme Court may strike it down, so it may never actually become law. That is why I took the view that, in trying to determine when an enactment becomes an enactment, it should be in the case of Acts of the Scottish Parliament when it receives Royal Assent.

To some extent this is academic. If you were to challenge me and ask me to give an example, I probably could not—but I am sufficiently acquainted over many years with the laws of unintended consequences to know that something will happen. You can bet your life that this issue could well come up and, rather than have the matter taken through the courts, it would be preferable, for certainty purposes, to put in the Bill when an enactment of the Scottish Parliament actually becomes an Act. The preference would be for when it receives Royal Assent.

This is a probing amendment but, if it is the noble and learned Lord who replies, I hope that he will accept that there is an issue here. The wording of our amendments may not be the ones that the Government would prefer, but perhaps he will accept that there is an issue here and the Government will bring forward their own amendment to clarify the point so that, at some future date, we do not have a situation where our learned friends at the Scottish Bar make lots of money out of disputing this, and we can resolve this. It is not a major point but it is one that merits clarity, and I hope that we can get a positive response to these amendments. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I am really grateful to the noble and learned Lord, Lord Wallace of Tankerness, himself a former Advocate-General, for moving this amendment. In the light of what he said, all I can say is that I agree with his every word.

Energy Bill [HL]

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 10th May 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I support the Motion which has just been so eloquently moved by the noble Lord, Lord Grantchester. I do not intend to rehearse all the arguments that we have been through, but I will make some points which have arisen in our lengthy debates and again this evening. The Minister seeks to raise the red herring of this Bill being totally threatened and of the threat to the oil and gas industry. There is no division across your Lordships’ House on the importance of setting up the Oil and Gas Authority. We want to see it as much as he does and, as the noble Lord, Lord Foulkes of Cumnock, said, the simple way for the Government to do that would be to accept the amendment which your Lordships’ House passed last week.

We have also heard another red herring about the manifesto commitment. I will not go into all the details again about how ambiguous, or not, it was. Let us take it at its best from the Government’s point of view and accept that it was a manifesto commitment. They are actually going to get that commitment because a substantive clause which brings forward an even earlier closure of the renewables obligation for onshore wind is already passed: it is there. What this amendment is about, what we are currently debating and what we have been ping-ponging about is a very limited point about the kind of grace period given to developers who have spent millions of pounds—not to mention time, energy and effort—to try and bring their projects to fruition but who have been thwarted by a very arbitrary cut-off date. It was probably a date which had to be fitted in with other announcements in the No. 10 grid, yet these people are being frustrated in taking forward their developments.

This begs the question of what is the scrutiny role of your Lordships’ House. We have accepted the principal manifesto position, but if your Lordships’ House means anything it must go into detail and try to ensure fairness. There has been no movement whatever from the Government on these points since, very late in the day, they brought forward their amendments immediately before Report in this House. The Opposition have put forward a number of improvements to the grace period which we have whittled down and down until we now have one which applies to only about four developments, all of them in Scotland.

The Minister has been very generous with his time; he has wanted to engage with us and I have huge respect for him, as he knows. But I must ask myself: what was the point of it all? What was the point of all these cups of tea and discussions in the tea room if the Government never intended to give anything? I think I know where the noble Lord is: I think that he does recognise the strength of the arguments. No doubt—well, I am not going to speculate but will stop there. Your Lordships’ House would hope that there might be some give and take, but we have not seen any of that.

This is a very limited amendment. It will affect the confidence of investors who will no longer trust what the outcome will be when they have made investments. The Minister referred to public subsidy. On the four developments we are talking about, the amount of public subsidy will be infinitesimally minimal compared to the amount that Hinkley Point will be getting over 35 years. So the public subsidy argument does not ring true.

I will finish by talking about the constitutional role of your Lordships’ House. Having conceded that the manifesto commitment will be substantially delivered, we are just looking at the detail. It is important that there is one House of Parliament that will stand up and look after the interests of developers and private individuals who invest their money and yet find that their rights and reasonable expectations are thwarted by an arbitrary decision of government. I repeat that when Andrea Leadsom was asked the purpose of the grace period by the Energy and Climate Change Committee in the other place, she said that it was to ensure fairness, and,

“that those who have spent money in a significant investment and achieved everything technically to meet the cut-off date, but through reasons beyond their control have not actually made it, are not penalised for reasons beyond their control”.

I do not think that it could be put any more succinctly or eloquently. That is what this amendment tries to do for a very limited number of cases and that is why it is worthy of support.

[Lord Foulkes of Cumnock]

My Lords, I also speak in favour of my noble friend’s Motion. Unfortunately, the noble and learned Lord, Lord Wallace, has stolen just about every point that I wanted to make, so I shall be mercifully brief. I remind the Minister of what I said earlier. As the noble and learned Lord said, we are all in favour of the Oil and Gas Authority. The Government could have had this Bill weeks ago if they had accepted the arguments that we have been putting forward. It is the Government’s recalcitrance which has delayed the Bill.

I will make just two points. In the House of Commons yesterday, Andrea Leadsom said:

“The other place has seen fit yet again to try to overturn that manifesto commitment”.—[Official Report, Commons, 9/5/16; col. 446.]

That is not the case. We are not trying to do that. I do not know how many times we need to repeat that and argue the case before noble Lords and honourable Members understand it.

Whether we like it or not, the subsidy date has been brought forward. All that we are talking about now are the grace periods. Three of these have been accepted: we are down to the last one. I cannot say it any better than my honourable friend Alan Whitehead, who said in the other place yesterday:

“The amendment from their Lordships’ House does not seek to alter the premise of grace periods. It does not seek to overturn the early closing date for onshore renewables, sad though that is. It does not seek to alter in any way the vast bulk of this well-crafted Bill, with all its important provisions concerning the North Sea oil industry. It simply seeks to put right one of the great anomalies in the grace period sections of the Bill, and, in that way, strengthen the proper application of those periods. As the Minister may have noted, it now does so in a way that it did not do in a previous amended incarnation. It places a specific time limit after the cut-off date of three months, reflecting the view that grace periods should be just that. This is now a very brief grace period window in which to put right the most difficult cases frozen out for doing the right thing”.—[Official Report, Commons, 9/5/16; col. 449.]

As I said on a previous occasion, one example of doing the right thing is in Sorbie. This family farm has, unfortunately, not been running so profitably in past years. Under advice, guidance and suggestion from the Government, they diversified into onshore wind and are now suddenly being told that they cannot get the subsidies that they were promised. As a result, they are in danger of going into liquidation. These are the kinds of small employers who are going to suffer if the Government press ahead with their policy.

I will make one last plea. I know that the Minister in this place has some sympathies. We have had the tea and we have had some sympathy: we have not had the result. We have not had anything because people down at the other end are so blind that they cannot see. I hope that Members of this House will understand it and that we will send it back and ask them, once more, to think again.

Energy Bill [HL]

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 21st October 2015 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I think that the noble Baroness, Lady Worthington, will say something about Scotland when she comes to speak to her amendments. As I said in Committee, the onshore wind industry in Scotland directly employs 5,400 people and contributes £9 million per annum in community benefit. I think that the work which I would like to claim my noble friend Lord Stephen and I started when we were in the coalition Government in Edinburgh and which has been carried on by the present Scottish Administration, and the work done by previous Secretaries of State at DECC, has resulted in onshore wind power being an increasingly cheaper source of power. However, the position as I set out in Committee on the Scottish dimension was that if the Scottish Government choose to extend the period, as was first envisaged when it was agreed with them that the renewables obligation would end, that is something that they should be able to do.

On the grace periods, which were the substance of the Minister’s amendments, I first and foremost acknowledge his engagement both before last week’s recommittal and subsequently, in terms both of meetings and phone calls. It might also be fair to acknowledge his private office, because I received an email from it timed at 00:54 on Saturday morning, which is quite remarkable. I know from experience just how hard private offices work.

While I welcome some of the changes which the Minister has referred to, with regard to the investment freezing condition and to making it clear that it was grid or radar and not cumulative, that is as far as the Government have gone, and the rest of the government response has been more than a little disappointing.

[Lord Foulkes of Cumnock (Lab)]

Is the fact that the Minister, who is well respected in this House, has had to work so hard—his private office has to work past midnight—not illustrative of the chaotic way in which the Government as a whole have dealt with this Bill?

[Lord Wallace of Tankerness]

My Lords, I think that everyone who has dealt with this Bill would agree that it has not been a satisfactory process. We have had late tabling of amendments; even the amendments before us were tabled only on Monday, meaning that if we wished to table amendments to amendments we were under considerable pressure to do so.

Perhaps I may put in context what we are discussing by drawing to the House’s attention what was said yesterday in the Select Committee on Energy and Climate Change in the other place. My right honourable friend the Member of Parliament for Orkney and Shetland asked the noble Lord’s ministerial colleague, Andrea Leadsom, “So what is the purpose of the grace period, then?” To which she replied, “As I say, to ensure fairness—to ensure that those who have spent money in a significant investment and achieved everything technically to meet the cut-off date, but through reasons beyond their control have not actually made it, are not penalised for reasons beyond their control”. It is with these words in mind that we must examine the Government’s position and the amendments that have been put forward. As the noble Baroness, Lady Worthington, said, an estimated £350 million has been put in to take forward projects which may not now proceed.

Our amendments relate in one respect to all applications which were in train at the time of the somewhat arbitrary date of 18 June—that was the date that the Secretary of State made a Statement; it has no more magic than that—and which had received planning committee approval. The reason for emphasising committee approval was that, in an earlier clause in the Bill, the Government set great store by the fact of local determination. A local determination means that, after considerable discussion, debate and consultation, the local planning committee has approved a particular proposal. It may just be that it is due to the cycle of planning meetings that the application has not yet gone to the full council for endorsement. I refer back to what the Minister, Ms Leadsom, said about applicants achieving everything technically to meet the cut-off date, but through reasons beyond their control, not actually making it. A lot of developers do not have control over the cycle of meetings of a local authority and it seems very unfair that, if they have passed muster after scrutiny by a planning committee, they fall foul because the full council has not ratified that decision.

Our Amendment 78RA contains a provision that it should refer to planning applications that were in place and had been accepted 16 or more weeks before 18 June. The reason for that is that after 16 weeks it is possible, if the local authority has not made a determination, for the developer to say that there has been a non-determination, so it is a deemed refusal and to appeal to Ministers on that basis. But the noble Lord and others who were at the Committee debate last week will remember that I gave an example from, I think, Tayside where extensive work had been done in terms of discussions between the developers, local communities and the planning authority to try to ensure that concerns had been meet and the opportunities to work with other environmental projects going on in the area were maximised. I believe, along with I am sure most Members of your Lordships’ House, that it is good practice for developers to work alongside the planning authority and try to get an agreement and outcome that is satisfactory to all. And yet, if the developer did that and missed the 18 June cut-off date, it will be penalised for it, whereas those about whom it might be said that they are not using best practice—I would not necessarily say that it was bad practice—might take a slightly legalistic view and say, “Well, it has been 16 weeks, so that is it. We are going to appeal because there has been a deemed refusal”. If that is subsequently granted on appeal, their applications will be satisfied. That does not appear to be a fair way of proceeding. If we are looking for an element of fairness in this, where is the fairness in penalising those who have demonstrated good practice?

Also with regard to Section 75 and Section 106, the Minister said in his letter to me that, where the planning committee could have been minded to approve on or before 18 June subject to Section 75 or Section 106 agreements but no formal consent was granted on or before 18 June, unfortunately, there is no legal consent given that they are minded to approve and we understand that the negotiations can be lengthy and not always successful. People from the industry who have been talking to me find that an unduly legalistic approach. The industry has been working with planning authorities for some 10 years on the Section 75 or Section 106 agreements that emerge in these situations. By and large they are already negotiated, but it may take time to put in place some of the detailed provisions. For example, if it is part of the development that there has to be a new habitat on neighbouring land—not the land on which the development is to take place—it has to be shown that the developer has the right to undertake the building of the habitat on that land. That is part and parcel of what happens and it is both practical and common sense that it should be recognised. Again, reminding us of what the Minister’s colleague said, it is to ensure fairness so that people are not penalised for reasons that are beyond their control.

Perhaps I may also take up what the Minister said on the question of variations. He helpfully stated in his letter to me and then repeated it in the House just a moment ago that, where consent is granted for a development on or before 18 June and is subsequently varied in this way, it will continue to fall within the approved building condition in proposed new Section 32LJ. I raise this because it is helpful that the Minister has now put this on the record, but I have also had representations from those who have taken legal advice that they do not necessarily believe that it does what the Minister says. I would ask him to look at it again. The fact that we have something that could be referred to in a Pepper v Hart way is helpful, but some would find greater reassurance, and it would be clearer to me, if there is something on the face of the Bill.

I refer to Amendments 78RA and 78RB with regard to Section 36 of the Electricity Act 1989. The purpose and effect of these amendments is to address what we believe is an anomaly by applying the principle of proposed new Section 32LJ(4)(b) to an analogous position under the Section 36 regime. Under Section 36 of the 1989 Act, the relevant planning authority is not the decision taker, but it can object to the proposal, after which there must be a public inquiry and then a decision by the Secretary of State. That is closely analogous to refusal under local planning followed by an appeal, and indeed for around half of the affected projects DECC’s renewable energy planning database describes the projects as being at appeal. Indeed, the last time that the people briefing me looked at the DECC website they were described as being at appeal. However, the proposed provisions cover the local planning version of this process but not the Section 36 version. This means that small extensions of larger sites, which have to follow the Section 36 route, are going to be treated less favourably under these grace period provisions than some sub-50 megawatt, stand-alone developments which go ahead under the local planning process. Reverting back to the question of fairness, there should be consistency in the Government’s approach. This amendment seeks to ensure that, and I hope the Minister will think again on it.

I also draw the Minister’s attention to the fact that, because of the Planning Act 2008, which has superseded Section 36 in England and Wales, that section mainly affects plants in Scotland. The functions of the Secretary of State under Section 36 and Schedule 8 are transferred to Scottish Ministers under Article 2 of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999, so far as they are exercisable in or as regards Scotland. Accordingly, the amendment does not explicitly refer to devolved Ministers. Would the Minister look and see if it is the case that they are not covered? I am sure he would not wish to put Scottish developers in any less favourable position than those in England and Wales.

We have proposed a relatively simple amendment regarding grid works, with a different cut-off date for grid works agreements. In Committee and subsequently, I raised with the Minister a case involving a joint venture between an energy company and a private individual. The energy company carried on the transmission entry capacity for a substation but the joint venture finished and the private individual carried on himself. Transmission entry capacity has therefore been lost and has to be reapplied for. It has had that connection for five years in the past but, crucially, did not have it on 18 June. It seems very unfair that they should lose out in a very bureaucratic process. We tried to find a way to capture that in an amendment and we thought we would do this by putting in a different end date, because you cannot just conjure up a grid connection agreement. It would not have taken any more capacity than was already the case, but this might give some clarity.

In another circumstance which has been drawn to my attention, changes were made. Grid capacity that was for one developer was then to be shared and this required a new agreement to be made. There was a clerical error and the developer sent the agreement back to get this sorted. Unfortunately, it was sent just before 18 June and did not come back until after that date. It would be reassuring to know whether that counts as a variation or whether it could be addressed by extending the period for grid connection.

In the recommittal, I made a point about radar and the problem developers are finding with the length of time it is taking the Ministry of Defence to process applications. The grace period that has been given may, therefore, not be effective because of the time it takes to get agreements reached. One developer who has made representations has said, about a particular mitigation which the MoD is looking for: “There are no guarantees that the work programme will deliver mitigation at this stage. In any event, the current MoD position is that the first part of the variation condition allowing development to commence cannot be discharged before 2018. There are some ongoing discussions between onshore developers and the MoD, seeking to find ways of earlier condition discharge but this is proving problematic. Overall, the costs and timescales of this ATC radar mitigation programme do not fit with any of the onshore projects”. It would be perverse if delay on the part of the Ministry of Defence meant that the grace period which the Government have sought to give does not actually cover these circumstances. This is why we have put in a particular date, though it may be that March 2018 is too early. I hope the Minister will take that serious point about trying to get agreements out of the Ministry of Defence if he wishes to give substance to what he sought to do with the radar works part of his amendment.

I am sorry to take up time but I had a lot of important points. I hope that the Government will move. I do not believe that they have met the letter or the spirit of what Andrea Leadsom said yesterday to the Select Committee in the other place.

House of Lords Reform

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 15th September 2015 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, it is important when we are debating a take-note Motion that refers to “further incremental reform” to put it in context by recalling that the introductory text to the Parliament Act 1911 passed by the then Liberal Government says:

“And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation”.

I rather suspect the House would have been surprised that 104 years later it still had not been brought into operation. In the 21st century, in a modern, forward-looking, innovative country like the United Kingdom, it is simply wrong that the public have never had the opportunity to vote for Members of this House, or the ability to hold us to account for our record. I believe that anyone who makes the laws of the country should be accountable to those they expect to obey those laws. In a democracy, we believe that legitimate power and political authority ultimately derive from the people.

It is worth reflecting that if the coalition government Bill proposed in 2012 by Nick Clegg and passed at Second Reading in the Commons with a majority of 338 had not had its progress frustrated in the House of Commons, we would now have Members of this House who were elected by the public and we would not be having this debate today. Questions of the burgeoning size of this House would not have arisen as membership of the House would have been reduced by a third under the provisions of that Bill. To be frank, I accept that the number on these Benches would be smaller, but the House of Commons frustrated that move.

Although I do not necessarily agree with the conclusion of the noble Lord, Lord Pearson of Rannoch, on what should be done, I can perfectly understand his frustrations. He made points that I readily recognise. His party received a larger share of the vote in the United Kingdom general election than my party, yet there is only one UKIP MP in the House of Commons and there are eight Liberal Democrats. If there was a fairer, more proportional system of election to the House of Commons, there would be more than 80 UKIP MPs and 51 Liberal Democrats. At Question Time, last week, the noble Lord, Lord Cormack, suggested that 40 of my colleagues should retire. It occurred to me that it would help address the balance in both Houses if it was possible to dispatch 43 colleagues from this House to the other place, but I suspect that that would not be democratic, either.

We are addressing issues this afternoon about the size of this House, the size of individual parties within this House, the balance across the House and, in discussing retirement, whether in effect membership of this House should actually be for the whole of the rest of one’s life. These are important issues about how this House is composed, and all are symptoms of a wider problem which has not been touched on in all the discussions around reform over the course of the summer in particular: what is the House of Lords for?

If there has been a weakness in the previous efforts to legislate for reform, it has been the inability to address the fear in the House of Commons that a democratically elected second Chamber would pose a threat, or at least be a rival, to the supremacy of the Commons. That is why it is necessary to address the question of function as well as composition. To my mind, the role of the House of Lords is not dissimilar to that articulated by the noble Baroness, Lady Smith of Basildon. It is: to scrutinise and revise the Government’s legislative agenda; to hold the Executive to account through questions, debates and the work of Select Committees; and, from time to time, to ask the House of Commons to think again. To be a Member of your Lordships’ House is to be in a position to fulfil this role. It is an honour and a privilege. Collectively, this House takes that role seriously. Individually, it has to be said, not every Member of the House applies themselves to this role with the same degree of dedication. Over the years, this Chamber has upped its game. It has listened to criticism and taken measures to strengthen the Code of Conduct and ensure that the Nolan principles on standards in public life are observed. However, there is no job description; and, crucially, most appointments are still largely reliant on patronage. As long as that is the case, this House and its Members will continue to be vulnerable to the charge, however unfair, of not working hard enough.

My noble friend Lord Steel of Aikwood has suggested a compulsory retirement age. I am not personally persuaded by that; it is a somewhat blunt tool, designed simply to reduce the size of the House without asking the fundamental question of what kind of Members we need to have to effectively do the job we are asked to do. Experience and collective memory can both be useful attributes in fulfilling our revision and scrutiny roles. Not only does a fixed retirement age jar because of discrimination; it could lead to the exclusion of some who have still much of relevance to contribute. Some of my colleagues have suggested automatic retirement if a certain percentage of attendance is not reached in a Session. It is superficially attractive but attracts the old adage “Be careful what you wish for”, because it will defeat the object if it leads to Peers who seldom attend turning up more often but still not contributing, simply to keep up their membership.

Many rudimentary issues may be touched on this afternoon regarding the role of your Lordships’ House. One to which I could dedicate the entirety of this speech is how this House relates to the nations and regions of this country. In its evidence to the Kilbrandon commission in 1970, in which my noble friend Lord Steel of Aikwood played a part, the Scottish Liberal Party argued that,

“a second chamber could facilitate federal co-ordination if it were composed of representatives of the national parliaments elected by them in proportion to their political composition”.

In a more federal United Kingdom, with a confident Scottish Parliament, an Assembly in Wales—which is set to see its powers increase—a still-delicate devolution settlement in Northern Ireland, and the promise of a northern powerhouse, we should be considering how this House can and should relate, and be relevant, to an evolving constitutional settlement. Such a discussion should surely take place and be remitted to a constitutional convention, as has been proposed in his Private Member’s Bill by my noble friend Lord Purvis of Tweed. In spite of what the Government have said, I urge Ministers to give serious consideration to supporting that Bill. It would ensure a process that is fully representative of the nations and regions in this country, and there would be an important conversation about our constitutional future.

[Lord Foulkes of Cumnock (Lab)]

Has my noble and learned friend noticed that the leader of the Opposition has appointed a member of the shadow Cabinet, Jon Trickett, with specific responsibility for taking forward a UK constitutional convention?

[Lord Wallace of Tankerness]

That is very welcome. It is not just within our respective parties but in many other parts of the House that there is a view that we should do that and look at some of these fundamental issues in a proper context.

From these Benches, our quest for a better whole will not prevent us seeking improvements in the component parts where possible. That is why I will respond positively to the invitation from the noble Baroness the Leader of the House to engage and find ways in which the Government, the Opposition and, indeed, the Cross Benches can improve the workings of this House, albeit short of the democratic mandate that I would like.

One such measure would be to end the system of hereditary by-elections to the House. As my noble friend Lord Steel of Aikwood said in 2011:

“I do not see that in the 21st century we can possibly stand up and say that people become Members of the British Parliament by heredity and election by three or four people”.—[Official Report, 21/10/11; col. 474.]

As I understand it, when it was introduced, the by-election system was supposed to be a temporary measure until the then Labour Government’s “second stage” of Lords reform. But like the promise of the 1911 Act, we are still waiting.

The role of patronage in the appointment of Members could be significantly reduced, with a stronger role for the independent Appointments Commission, as has been said by the noble Lord, Lord Lea of Crondall. A more radical change to membership, but one that would be consistent with the thinking of the 2012 Bill, would be to introduce time-limited appointments rather than membership of the House being for the rest of one’s life. This would address some of the concerns of ever-increasing membership, while ensuring that membership is refreshed.

The main premise of the Motions before the House today is that, if we reduce the size of your Lordships’ House, everything will be fine. Respectfully, I profoundly disagree. There are fundamental issues to be addressed in our ever-evolving constitution, of which the role of the House is but one. I continue to believe, and make no apology for it, that democratic reform of the House would go a long way to addressing some of the criticisms that have been levelled at us in recent weeks. But in the absence of democratic reform, I undertake to work constructively with the other Benches in your Lordships’ House to improve our composition, our processes and, I sincerely hope, our reputation. However, I urge the Leader of the House, in the haste to resolve a seating shortage, please do not lose sight of the deep-rooted challenges facing this Chamber.

Energy Bill [HL]

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 14th September 2015 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, I first say a word of thanks to the noble Lord, Lord Bourne, because I sounded a bit intemperate when I intervened earlier during his speech. I have known him for a while, both for his work in Wales and as a Back-Bencher before he received his well-deserved promotion. He has been one of the most diligent Ministers in keeping Members of all sides in touch with progress. I have had more letters faxed from his office than from anyone previously. It is really helpful and I am grateful to him for it.

My noble friend Lady Worthington has tabled one of the most significant political amendments to this Bill. I know that the noble Lord, Lord Bourne, will listen carefully, but I hope that he will consider all the implications of this measure. I know because I have worked with him that he understands devolution, because of his Welsh connection having been a Member of the Welsh Assembly, and he will know that there are political implications as far as Scotland is concerned.

As my noble friend said, these powers were repatriated to Westminster under the previous Energy Act on the clear understanding and promise from the Government that there would be no policy implications. It was said that it was just a technical change and that it would not affect any policy decisions. It was accepted by all sides, here and in Holyrood, because of that assurance. The Minister will know—and the noble and learned Lord, Lord Wallace, knows a lot about this—that it is an exceptional thing to repatriate powers. Normally, they are going in the other direction: from here to Holyrood, month in and month out. So it was exceptional and, as I understand it, done without acrimony. But the Government have now used that for an entirely political purpose—a policy purpose—in contradiction and contravention of the promise they made, without any consultation whatever with the Governments of Wales and Scotland. That is why Fergus Ewing MSP, the Energy Minister in Scotland, was understandably very upset. He continues to be annoyed about it.

This action has been taken in bad faith. I see the noble Viscount, Lord Younger, who knows Scotland very well. I remember his father extremely well as a very diligent Secretary of State for Scotland. He would have understood the issue. I hope that the Minister and the Government will consider restoring the powers to the Scottish Parliament and Scottish Government up to 2017 so that decisions within Scotland about onshore wind and ROCs in Scotland should go back to the Scottish Government. That is not a lot to ask and I think the Government are honour bound to consider that in light of the promises they gave when this power was repatriated.

I understand the problems of giving assurances off the cuff and on the spur of the moment, but I hope that the Minister will agree to take this away and consult his colleagues in the department and either accept this amendment or bring forward an appropriate amendment to deal with what is an action taken in very bad faith.

[Lord Wallace of Tankerness (LD)]

My Lords, I welcome the amendments tabled. I thank the noble Lord, Lord Bourne, for indicating that he would be willing to recommit these relevant clauses of the Bill when we have an opportunity to consider the grace period provision that the Government intend to bring forward. That shows a constructive response to the concerns that have been raised.

This is not really an interest to declare but, when I was Minister for Enterprise and Lifelong Learning in the Scottish Executive, as we then called it, I had some responsibility for the renewables obligation. The Labour and Liberal Democrat coalition in Scotland did much to take forward the case for the development of renewable resources in Scotland. To give the figures for Scottish renewables, around three-quarters of United Kingdom’s onshore wind developments are in Scotland. Therefore, that is where the impact of this measure will be most heavily felt. My noble friend Lord Teverson just handed me the Conservative manifesto and there is nothing in the wording on local decision-making to indicate that the period would be brought forward from April 2017 to April 2016, so I do not consider that this provision of Clause 60 is a manifesto commitment.

Given that the Scottish onshore sector directly employs more than 5,400 people and contributes £9 million to local people in community benefit each year, and that some 70% of people in Scotland support further development in wind and the benefits that it brings, it would be helpful if the Government recognised that there is a particular Scottish dimension to this. Obviously, planning matters are devolved to the Scottish Parliament. Clause 59, which we have just debated, does not apply to Scotland so, to that extent, a distinction has already been made. In terms of this proposal, it would be in the spirit of devolution and constructive working with the Scottish Parliament and the Scottish Government if Scottish Ministers were able to determine that the current situation—as we understood it—will continue to 2017. That would allow the position to be tailor-made for the part of the United Kingdom where there is the greatest concentration of onshore wind power.

My understanding is that the particular provision was devolved to Scottish Ministers by executive order under the Scotland Act 1998 and thus it was executive devolution. That is why, when it came to the 2013 legislation, it was possible legislatively for the renewables obligation to be withdrawn. However, as the noble Lord, Lord Foulkes, said, the understanding was reached on a timetable which has suddenly now been changed. I know that the industry in Scotland is extremely concerned about it and I would therefore encourage the Minister to look at what is being proposed to see if there can be a particularly Scottish carve-out for this. If he does not feel he can go that far—I hope he would be able to—when we come to debate what might be done in terms of grace periods, perhaps provision could be made to enable Scottish Ministers to devise their own grace period provisions, given that there are some very particular issues with regard to the development of onshore wind in Scotland.

[Viscount Ridley (Con)]

My Lords, before coming to the substance of the amendment, perhaps I may express my gratitude to the noble Lord, Lord Teverson, for his surprise that I am in my place and remind him that one should never believe everything one reads in the newspapers. I am only too glad to do my best to provide some grit for his oyster.

Before I go on, I should declare my energy interests as listed in the register, mostly in coal, although the wind industry has not in fact been a particular threat to coal. It has been more of a threat to the gas industry, which in some ways would have been a threat to coal. I urge my noble friend the Minister to stick to the Conservative manifesto commitment on this and not to visit upon Scotland a ruination of its landscape that would not be acceptable in England. I would say to the noble Baroness, Lady Worthington, and the noble Lord, Lord Foulkes, that, yes, there is a difference between the policy of the coalition Government at the start of the year and the manifesto commitment of the Conservative Party, but that is because we had a change of government at the election.

The Government should not be taken in by the wind industry’s assertion that most people do not object to onshore wind. The commonly quoted research on this is often out of date and simplistic. For example, a MORI survey which is used to show that people do not mind or are supportive of wind farms was conducted in 2003, when a 15-turbine wind farm was considered large. Nowadays in Scotland they often comprise more than 30 and sometimes as many as 70 turbines. The land area of Scotland from which turbines are visible has dramatically increased over a short period. According to data from Scottish Natural Heritage, 20% of Scotland was theoretically visually impacted by turbines in 2008, whereas by 2013 it was almost 46%.

Scotland: Smith Commission

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Thursday 27th November 2014 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, as we make progress with Scottish devolution, as we consider the clauses and as these meetings take place, do we not all agree that it will be understandable if resentment grows in England because of the English democratic deficit? If we can agree the vow effectively overnight, and if the Smith commission can be set up so quickly, why is it that the parties—the Liberal Democrats, the Conservatives and the Labour Party—cannot get together and get the UK constitutional convention up and running as quickly as possible so that we can look at the situation in the whole of the UK in a comprehensive and holistic way?

[Lord Wallace of Tankerness]

My Lords, I know that the noble Lord has regularly put forward the case for a UK-wide constitutional convention. As I said when your Lordships’ House debated these issues on 29 October, the Government will consider proposals for the establishment of such a convention. While it is important that we debate these things, it is also important that we engage with the wider public. Let me make it clear that today’s heads of agreements should not in any way be held up by any constitutional convention, but I am sure that there is no shortage of issues that could be sent to such a convention.

Scotland: Devolution

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 29th October 2014 Lords Chamber

[Lord Wallace of Tankerness]

I was coming on to the question of English votes for English laws. I do not believe that English votes for English laws is an answer to the whole question of devolution within England; I think that that point is accepted. As my noble friend Lord Tope said, it is not a question of if—it must be a question of how. Moving on to the point raised by the noble Lord, Lord Blencathra, and numerous contributors to the debate with regard to English votes for English laws, I was going to say, “Over the last few weeks,” but my noble friend Lord Macgregor reminded us that the issue was live when he entered the House of Commons in 1974 and my noble friend Lord Lexden reminded us that it was live when Mr Gladstone and Joseph Chamberlain were in the House of Commons. This matter has generated debate and questions for well over a century. The welcome transfer of powers to Scotland, Wales, Northern Ireland and the London Assembly, and the prospect of further devolution have created not just an anomaly but a complex one. The asymmetric devolution of powers to these bodies makes the issue of which MPs’ constituents are affected by which laws a highly varied one. It is not a simple question with an easy answer, but we nevertheless should seek an answer, as my noble friend Lord Macgregor said. It is a question of fairness.

Each of the three main UK parties in the United Kingdom Parliament has expressed its views on the West Lothian question. This House has considered the issue. We have had the views of the McKay commission and reports such that of the democracy taskforce. My right honourable friend David Laws has noted that a grand committee should be appointed proportionately to vet laws that will apply only in England, joined by Welsh MPs when matters affecting Wales are debated.

The noble Lord, Lord Elis-Thomas, mentioned that Bills have a territorial extent. I know that my own Office of the Advocate General looks at all Bills with regard to whether legislative consent Motions will be required in Scotland. It can be complex. The Marine and Coastal Access Bill in which I took part is an example that was referred to by my noble friend Lord Greaves. Although my noble friend Lord Blencathra said that it could be relatively easy, I remember when the legislation was going through the House of Commons with regard to the increase of tuition fees under the Labour Government. When that passed, I was the Minister with responsibility for higher education in Scotland and I knew full well that that had far-reaching consequences for Scotland, which led to the Further and Higher Education (Scotland) Act 2005. It is not always easy. This matter deserves careful consideration.

[Lord Foulkes of Cumnock]

The noble and learned Lord is absolutely right. Will he deal with the point that I raised that, for more than 300 years, until 1999, all Scottish legislation—on education, on health and on the legal system—was dealt with by this Parliament by a majority of English, Welsh and Northern Irish Members?

[Lord Wallace of Tankerness]

The noble Lord is right. That was one of the reasons we established the Scottish Parliament. It is a matter which I think ought to be addressed—and far better that it be addressed where there is cross-party working and consensus-forming. That was the basis on which we established the devolved Administrations, and I do hope we can work on a cross-party basis to address this important issue as well.

Scotland: Devolution Commission

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 22nd October 2014 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what progress has been made by the devolution commission, chaired by Lord Smith of Kelvin; and when they expect it to report.

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

My Lords, the noble Lord, Lord Smith of Kelvin, has already done his work and is today chairing the commission’s first plenary session. All of Scotland’s five main parties are taking part in this process. There is a clear timetable for the work and an opportunity for people across Scotland to participate. The Smith commission will produce a heads of agreement report by 30 November this year.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am grateful to the Minister for his Answer. However, does he agree with me that the Smith commission should not operate on the basis of party horse trading but on principles, particularly the principle that each power devolved should be appropriate to be exercised at that level, and that Holyrood should be given tax-raising powers sufficient to enable it to raise enough money to cover the expenditure for which it is responsible?

[Lord Wallace of Tankerness]

My Lords, I agree with the noble Lord that this should not be a question of horse trading. Ahead of today’s meeting the noble Lord, Lord Smith, indicated that he believed that there would be a will among the parties to reach agreement. I do not think that it would be appropriate for the Government to dictate to the Smith commission what the principles should be, although I do think that the noble Lord makes an important point about principles. The one important, fundamental principle is that all five parties should work to strengthen the Scottish Parliament within the United Kingdom. On 18 September, the people of Scotland voted for Scotland to remain part of the United Kingdom, and that is a principle we cannot lose sight of.

Scotland: Independence

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 24th June 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part. It has been a remarkable debate in the quality of the contributions. Indeed, as in some of our earlier debates on this subject, we have had a range of very thoughtful contributions from noble Lords on all sides of the House, from all parts of the United Kingdom—Scotland, Wales, Northern Ireland, England and, indeed, Cornwall. That has enriched our debate.

One of the most important things that came through was the number of people who talked of their own experience. The noble Lord, Lord Soley, talked about working in Scotland as well as in England. The noble Lord, Lord Judd, talked about his family and what makes him what he is—a product of this United Kingdom. My noble friend Lord Dobbs said that he was a full-blooded Englishman but nevertheless has a great affection for and affinity with what we have achieved as a United Kingdom.

My noble friends Lord Glasgow and Lord Purvis and the noble Lord, Lord Kerr of Kinlochard, said that what they so much regret about the referendum debate is almost having to choose between being British and Scottish, whereas most of us think we can be British as well as Scottish—and indeed, European—whatever part of Scotland we come from. The noble Lord, Lord McConnell, talked about the strength and diversity within the United Kingdom. In spite—or perhaps because—of that diversity, we are a United Kingdom. We can celebrate the diversity and our unity.

I particularly thank my noble friend Lord Lang of Monkton for his reprise of the recommendations of the Constitution Committee’s very valuable report on the constitutional implications of the referendum and, specifically, of a yes vote. The Constitution Committee of your Lordships’ House has a well deserved reputation for full and detailed examination of key constitutional debates that we face in the UK. This latest report discussed in today’s debate is no different.

As I indicated in my opening speech, we will offer a full written response in advance of the due date of 16 July. The noble Lord, Lord McConnell, asked about that. I understood that the noble and learned Lord, Lord Morris, might have thought that that was a response to the McKay commission, so I make it clear that it is a response to the report that we are debating today.

I will offer a few reflections on behalf of the Government because the report rightly highlights that the constitutional stakes could not be higher. A yes vote in September would have a profound impact not just on Scotland but on people right across the United Kingdom. Those implications would be far-reaching and would extend far beyond constitutional points—to the economy, our place in the world, and our relationships with one another across these islands.

However, as the committee notes, at its very core the implications are set out in law; and it would be to the law that we would have to turn. Successive Governments have been very clear that it is for people in Scotland to decide if they wish to remain a part of the United Kingdom, or if they wish to leave and go it alone. That is why I say to the noble and learned Lord, Lord Morris of Aberavon, who indicated that the Welsh were not involved in the agreement signed in Edinburgh in October 2012, that it has been the view of successive Governments that if the people of Scotland wish to leave they should not be held in the union against their will. That was the background to the agreement.

However, as my noble friend Lord Purvis pointed out, it is one of the strengths of the union that, because we have established the rule of law and the basis of democracy, we are confident that these matters will be determined through the ballot box and not through means by which other countries in history have sought to claim their independence.

The referendum on 18 September will determine this question. I say to my noble friends Lord Shipley and Lord Caithness that, in a debate where both sides are almost invariably at odds with each other, the one thing that the two Governments have never disputed is that there should be only one referendum. It is important to recognise that if Scotland votes yes on 18 September it will be not only for Christmas, as one noble Lord said in his contribution, but decisive. The agreement reached was intended to be decisive and would be respected. The noble Lord, Lord McFall, asked whether that was set down when it was signed up to. In fact both Governments have said that it would be a decisive referendum that would be respected by both sides. Therefore one would expect that a no vote would be respected by those who have campaigned for a yes vote.

However, as the committee notes at paragraphs 38 to 43, if there is a yes vote, legislation delivered through this Parliament will be required to take Scotland out of the United Kingdom and to establish a new, separate state. I shall come later to the point raised by the noble and learned Lord, Lord Hope. The committee recognised that the extent and scope of that legislation may be very limited. Many subsequent orders will be required but the legislation itself could be quite limited. Much will depend on the agreement reached.

As I have said in your Lordships’ House on a number of previous occasions, these negotiations cannot begin in advance of the referendum as we must not pre-empt the outcome of the negotiations. To do so would require the United Kingdom Government to put themselves in the shoes of a Government of the continuing United Kingdom minus Scotland. It would require the United Kingdom to act in the interests of only one part of the United Kingdom rather than the whole of the United Kingdom. To do so in advance of a referendum would be to deliver exactly what the nationalists want—a United Kingdom that excludes Scottish interests and acts only in the interests of England, Wales and Northern Ireland. That is the reality of independence: it means that there will be two separate states, and where you have two separate states you have two separate sets of interests. Sometimes they will be mutual, sometimes not.

Later in the committee’s report the question of who should make up the negotiating team for the rest of the United Kingdom was raised. As someone who has represented a Scottish constituency in the United Kingdom Parliament as well as in the Scottish Parliament, and as someone who will continue to be resident in Scotland after the referendum, whatever the result, I find the report’s recommendation on the role of Scottish representatives and the exclusion of those who would have a conflict interest very compelling.

I turn now to the points highlighted by the committee, including representation of Scotland within the UK Parliament and by the UK Government in the period between a referendum which endorsed a yes vote and independence day. In paragraphs 56 to 58 of the report the committee raises the risk of constitutional limbo. This issue was raised in his introductory speech by my noble friend Lord Lang, by the noble Lord, Lord Kerr, and by the noble and learned Lord, Lord Cullen of Whitekirk. I have looked back at the context in which my right honourable friend the Secretary of State for Scotland answered that question. It was in the context of negotiation, whereas, as I have just said, you cannot have negotiations where there are different sides of the argument.

However, to make it clear, during any negotiations Scotland would still be part of the United Kingdom and public services would be delivered as they are now. This means that the Scottish Government would continue to be responsible for health, education, justice, rural affairs, housing and transport in Scotland as well as the other devolved matters, and the United Kingdom Government would continue to be responsible for reserved matters. I do not think that the noble and learned Lord expected the Electoral Commission statement to contain the whole list of Schedule 5. However, the key ones are there and there is nothing sinister about the ones that were mentioned or not mentioned. The United Kingdom Government would continue to be responsible for reserved matters, including defence, security, foreign affairs and the constitution, plus pensions, benefits and most tax powers up to the date when Scotland became an independent state.

During the negotiations, the two Governments would continue to discuss any policies of either that affect the responsibilities of the other. Equally clear is the reality that a vote to leave the United Kingdom is a vote to leave its institutions, including the Houses of Parliament. The timing of any changes would have to be settled in the event of a vote for independence.

I sincerely hope that there is a clear endorsement—a view expressed by all noble Lords with the exception of the noble Lord, Lord Elis-Thomas—of Scotland’s place in the United Kingdom. If there is not, that is when the negotiations will begin. I suspect that they will take as long as necessary to ensure that both sides are content, rather than fitting neatly into a timetable laid down by the Scottish Government. I hope that that answers the question raised by noble friend Lord MacGregor. The noble Lord, Lord Robertson, with his experience of negotiating seven NATO entries, indicated that that was not by any means an easy process. As the noble Lord, Lord Kerr of Kinlochard, pointed out, as did my noble friend Lord Garel-Jones, negotiation of entry into the European Union is by no means a straightforward matter either.

As people have said before, it is the deal in any negotiation that is important and not the date. With regard to the negotiations themselves, as the Constitution Committee report notes, the starting point for them is predetermined by the legal position that underpins all of this debate. The first of our Scotland analysis papers dealt with the legal and constitutional position of Scotland within the United Kingdom and the implications of independence. This was the right place to start, because it is from the law that political realities and experiences will flow. The legal reality is clear: the rest of the UK would be the continuator state in the event of independence. Scotland would leave and become a new successor state. I welcome the committee’s clear endorsement of this position in the first of its conclusions.

This key legal point has a number of ramifications. The United Kingdom would continue to be a member of all the international bodies to which it is currently party: the European Union, permanent membership of the Security Council of the United Nations, NATO, the G7 and the G20. As a new successor state, Scotland would need to apply for and seek new terms of membership. Those negotiations cannot in turn be prejudged in the way that the Scottish Government and advocates of independence seek. As has been pointed out in this debate, 28 member states of the European Union, each of which will wish to protect and represent the interests of its citizens, will have to sign up to these negotiations. Many of these states have had to accept terms of EU membership from which the Scottish Government expect to be exempt.

In the previous debate I did not wish to seem dismissive of the points made by the noble Lord, Lord Kerr of Kinlochard. I hugely respect the experience that he brings to these matters, but it would not be right to speculate on how negotiations could work. Previously I perhaps raised an eyebrow more with the idea that the Scottish Government would find it acceptable for the United Kingdom Government to negotiate on their behalf: I just think that you need to say that there could be some political issues around that, but I certainly do not dismiss lightly what the noble Lord, with his experience, says.

As I noted at the start of today’s debate, the Government will respond in full to the committee’s recommendations, ahead of the response deadline. I hope that I have given some indication of our likely response to some of the key points made by the committee and repeated during this debate, and a clear sense of the approach that the United Kingdom Government are taking on these issues.

I turn to some of the other points that have been raised. In reference to the Edinburgh agreement I indicated that it is one wherein the United Kingdom and Scottish Governments agreed to work together to ensure that the referendum on Scottish independence could take place on a legal basis. I think that the noble Lord, Lord Foulkes, thought that we had been tricked into it. Noble Lords might want to think about this for a moment. With the SNP having won—with a manifesto commitment to a referendum—a majority of seats in the Scottish Parliament, in which the noble Lord, Lord Robertson, and I have some responsibility for the electoral system used, neither of us or many others thinking that any party could win a majority, it is not unreasonable that the referendum was facilitated. I rather think that Mr Alex Salmond, with the cunning wiliness referred to by the noble Lord, Lord Foulkes, hoped that the United Kingdom Government would say no and give him ever more of a grievance.

[Lord Foulkes of Cumnock]

A 45% vote on a 50% turnout is not an overwhelming mandate. I am not saying it is overwhelming in one direction or the other but it is arguable that it did not provide the mandate and there could have been further discussions. I also said that in the discussions the UK Government seem to have conceded on every issue—issue by issue.

[Lord Wallace of Tankerness]

My Lords, I do not accept that. In a PR election, to win an outright majority of seats—the political reality was that there was an expectation that if we had sought to thwart that, it would have played into their hands. There was the possibility that they would have run their own referendum, which we would have argued was not legal, and we would have been embroiled in a constitutional mire. The fact is, there is a binary question, yes/no, but I rather think that some in the nationalist cause would have liked to have muddied the waters with a third question and allowed us all the time to negotiate among ourselves what the third option would be, thus taking our eye off the ball and not tackling the main issue, which is whether Scotland should be an independent country.

The noble Lord, Lord Birt, made important points about the BBC. As the committee indicates, that is one of the institutions that would belong to the continuing state. He highlighted the detriment that Scotland leaving the UK would cause the BBC: 10% less funding for BBC programmes and for the rest of the UK. He also pointed out, importantly, that of course the BBC is independent of government and any negotiations it had with the Scottish broadcasting service would be akin to the kinds of negotiations that I am sure it has with many other national broadcasting companies throughout Europe and the rest of the world. Unlimited access to BBC services in an independent Scotland would cost money, and it is naive and indeed misleading for the Scottish Government to pretend that everything would just go on as before.

The noble Baroness, Lady Adams, asked about English universities. Access for Scottish students would be the same as for those from other European Union countries. The other thing that is slightly odd is the Scottish Government trying to pretend that English students coming to Scottish universities could be treated differently from those from other European Union countries.

[Lord Wallace of Tankerness]

Indeed, if Scotland was a member of the European Union, they would be treated the same as everyone else from there; if it was not, they would be treated the same as international students from India or wherever. Of course, if Scotland were to be part of the European Union—a point that I think the noble Lord, Lord Foulkes, is about to latch on to—the idea that you could allow free tuition for students from every other European Union country and charge English students does not have any sound basis. It is difficult to say that you want to enter into a social union with other parts of the United Kingdom but one of the first things you do is charge its students when you are not charging anyone else.

[Lord Foulkes of Cumnock]

I know it is difficult but it has already been said. Mr Salmond has said that they would not get free tuition—that English, Welsh and Northern Irish students would not be treated as other European students. That is what we are facing. We are doing everything by the book. We are treating these matters honourably. People on the other side of the discussion are not.

[Lord Wallace of Tankerness]

My Lords, there is such a thing as the European Court of Justice, and anyone who attempted to fly in the face of what most people would think of as accepted European Union law may find that the law caught up with them.

My noble friend Lord Cormack and the noble Baroness, Lady Adams, talked about their grandchildren and how they do not wish to see opportunities cut off and cannot understand why we would want to build barriers. That has been reflected in many schools, where there have been substantial no votes. It shows that in an era when young people can communicate so easily, when the communication barriers have been broken down because of modern technology, the idea that you would start erecting barriers is something that many of them just cannot comprehend. That is a great strength for our union as we look forward.

My noble friend Lord Caithness asked about the draft Bill. I confess that we have not yet done any analysis of it. My noble friend Lord Lester of Herne Hill, however, was telling me the other day that he has already identified two or three inconsistencies with the European Convention on Human Rights, and if my noble friend has identified them, that probably means that they are right. It is not a very good start for a constitution if it seems to fall foul of the European Convention on Human Rights.

The noble and learned Lord, Lord Hope of Craighead, raised the question about whether it could be a Section 30 order. It is clear that independence cannot just be asserted. The terms of an agreement reached between the representative of an independent Scotland and a continuing UK would have to be that: an agreement. I have already indicated what the position would be with regard to the period between the date of a referendum if there were to be a yes vote and the date of independence, and all the responsibilities that the United Kingdom Government would have. The quote that I gave was a direct quote from the statement given jointly by both Governments to the Electoral Commission, so the Scottish Government themselves have signed up to that.

The noble and learned Lord, Lord Cullen, made a point about how long it took to get that agreement, and that was just an agreement to make a statement. That might put into context how long it might take to negotiate an independence settlement. If Scotland chooses to leave the United Kingdom, it must be prepared to do so whatever the terms, because the terms cannot be known in advance.

As the report of the Constitution Committee indicates, there could be possible difficulties with a Section 30 order if it was challenged in the courts that the use of the Section 30 order had gone beyond what Parliament intended an order to do—if it were bringing in independence when in fact that was clearly never the intention of Parliament.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, of course the Executive are answerable to Parliament. That is self-evident, as we well know. It is impossible to speculate on this because we do not actually know what the terms would be. I am just confirming that there would have to be legislation. I cannot speculate about what would be in the legislation because I have no clue what kind of negotiations there would be or what agreement would be reached. To try to speculate would go against the grain of what we have said about there being no pre-commitment or pre-negotiation.

[Lord Foulkes of Cumnock]

I am sorry to keep everyone but this is a very crucial matter—as the noble Lord, Lord Forsyth, indicated. The noble and learned Lord, Lord Wallace, has said that the Government have not yet considered fully the terms of the interim so-called constitution drafted by the Scottish Government. Perhaps he could tell us today that the Government will look at that, and report back to this House on it, and then we can have a further debate. We really must consider this. As I said in my speech, we are getting bounced into one thing after another. We should be damned sure that we are not bounced into this one.

[Lord Wallace of Tankerness]

My Lords, we certainly shall look at it, although whether we can have a debate between now and the House rising I just do not know. However, I hope we are not confusing two things. Of course, a constitution would be a matter for the independent Scotland. It would post-date independence. I think the noble and learned Lord, Lord Hope, talked about an interim Bill, and that was what was being discussed.

Scotland Act 1998 (Modification of Schedule 5) Order 2014

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 7th May 2014 Grand Committee

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have participated and thank them for the welcome they have given the order. My noble friend Lord Mar and Kellie was absolutely right to remind us of the importance of the food industry in Scotland and the importance of maintaining its quality.

My noble friend the Duke of Montrose raised some technical issues. He asked whether, following devolution of zootechnical feed regulation, matters would work in the same way in England and Wales as in Scotland and whether it would be necessary for Scotland to set up its own veterinary medicines directorate. Veterinary medicines will continue to be regulated by Defra. It is because certain items in the EU definition were removed from the definition of veterinary medicines that we are having to make this adjustment. Veterinary medicines will continue to be regulated by Defra—in practice by the Veterinary Medicines Directorate—and so the system will be the same in England and Wales as it is in Scotland. Non-medicinal zootechnical issues will be devolved, but that will be about implementing European Union law, and there will therefore still be consistency north and south of the border.

[Lord Foulkes of Cumnock]

The Minister made a point in relation to the question from the noble Duke, the Duke of Montrose. Can he confirm that the work undertaken by Defra, in Scotland as well as in England and Wales, is one of the many things that would have to be torn apart if Scotland separated from the rest of the United Kingdom?

[Lord Wallace of Tankerness]

The noble Lord makes a very alert and important point. The Veterinary Medicines Directorate is a directorate of the United Kingdom Government and would not automatically be transferred or shared in the event of a yes vote—which I hope will not happen. It is yet another example of one of the many institutions and agencies which operate on a Great Britain basis. I believe they operate successfully on that basis.

In response to the noble Lord, Lord Foulkes, Parliament should certainly not just be a rubber stamp for the Government. It is important to put on record that the process we are following here is set out in a law passed by Parliament. As I have indicated, this order has been debated in the House of Commons and approved by it. The fact that we are having a debate on it is very healthy and right and proper. The issue is, indeed, technical but nevertheless the debate has offered noble Lords an opportunity to express their views and to ask some very pertinent questions.

I certainly agree with the point made by the noble Lord, Lord Foulkes, which I think was echoed by the noble Lord, Lord McAvoy, and my noble friend Lord Mar and Kellie, that this is an example of the devolution settlement working. I think that it is a very good example of that. It is a technical issue but it shows a willingness to address practical issues in a practical way as and when they arise. Under the previous Administration, a certain amount of executive devolution was achieved on these issues through a Section 63 order. However, we now have a position whereby the Scottish Government have decided to establish a new food body for Scotland which will take on the roles and responsibilities of the UK-wide Food Standards Agency. Therefore, there is legislation going through the Scottish Parliament and a Bill has been drafted to sit within the limited sphere of legislative competence in relation to food and animal feed as set out in the 1998 Act. If this House passes the order—it will also need to be passed by the Scottish Parliament and then submitted to Her Majesty in Council—the Scottish Government intend to seek an amendment to widen the scope of the Bill to bring it in line with the scope of the existing food and animal feed law, as amended by this order. Therefore, the issue is of practical relevance given that the Bill is currently before the Scottish Parliament.

We have shown good will in negotiations and discussions with officials in the Scottish Government, my own department and other departments of the UK Government, not least Defra. That is a good practical example of the flexibility of the system. People refer to the status quo but I do not believe that there is any such thing as the status quo in relation to something which has evolved since 1 July 1999. The system has shown its ability to respond to different circumstances and I sincerely hope will continue to do so as we move forward. I again commend the order to the Committee.

Scotland: Independence

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 13th May 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I recall that some time ago, following the election of the present Scottish Government, the previous Cabinet Secretary gave some indication that Scottish civil servants working for the Scottish Government would be expected, as are UK government civil servants, to promote the policy of their Government. Likewise, civil servants working for the Scottish Government, albeit that they are UK civil servants, will be expected to work towards the policy of the Scottish Government.

[Lord Foulkes of Cumnock]

My Lords, will the Minister answer a question that his namesake, the noble Lord, Lord Wallace of Saltaire, could not, and confirm that the Cabinet has taken two decisions: first, that there should be no pre-negotiation with the Scottish Government, which is absolutely correct; and, secondly, that there should be no contingency planning, which is quite wrong, particularly, as my noble friend Lord West said, in the area of defence? Will the issue of contingency planning be reconsidered by the Government?

[Lord Wallace of Tankerness]

My Lords, the Government have indicated that there will be neither pre-negotiation nor contingency planning. I can understand why people talk about red lines and making things clear, but to ask the United Kingdom Government to prioritise one part of the United Kingdom over another would not sit easily with a Government who seek to serve the interests of all our citizens in all parts of the United Kingdom. It is not in the interests of Scotland or of the United Kingdom that we should start to unstitch the fabric of the United Kingdom before the people of Scotland have had their say.

Scotland: Referendum

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 26th March 2013 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what discussions they have had with the Scottish Government regarding the arrangements for the referendum on independence.

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

The United Kingdom Government had a number of discussions during 2012 regarding the arrangements for the referendum on independence. These discussions led to the details set out in the referendum agreement on 15 October. As with the agreement, we continue to work constructively with the Scottish Government to ensure that there is a legal, fair and decisive referendum on Thursday 18 September 2014.

[Lord Foulkes of Cumnock]

I am grateful to the Minister for that reply. Have the Minister and his colleagues had time to consider the request from the First Minister of Scotland for the Prime Minister to appear in face-to-face debates on television in the run-up to the referendum? Will he confirm that this request will be completely rejected and that the United Kingdom Government will make it clear that if anyone from the UK Government takes part it should be the Secretary of State for Scotland, his deputy or the Advocate-General?

[Lord Wallace of Tankerness]

My Lords, I have indeed heard the First Minister’s call for a head-to-head debate with the Prime Minister. I also recall the First Minister warning London-based politicians such as the Prime Minister to keep out of the referendum campaign, so he cannot have it both ways. While I accept the challenge and would be delighted to take part, one might also ask whether the First Minister will go head-to-head with the leader of the Better Together campaign, Mr Alistair Darling, who at least has a vote in the referendum, unlike the Prime Minister. However, let me make this clear: the Prime Minister will argue very vigorously for Scotland’s continuing place in the United Kingdom.

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 16th January 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, the position is that the Referendum Question Assessment Guidelines published by the Electoral Commission in November 2009 set out its approach to reviewing questions for intelligibility. These guidelines state:

“A referendum question should present the options clearly, simply and neutrally. So it should: be easy to understand; be to the point; be unambiguous; avoid encouraging voters to consider one response more favourably than another; avoid misleading voters”.

That is the Electoral Commission’s guidance to the intelligibility question which my noble friend raised; those are the criteria I expect it to apply having regard to weighing up and assessing the question that has been submitted by the Scottish Government to the Electoral Commission. With regard to this question, we have sought to put the position of the role of the Electoral Commission and the role of the Scottish Parliament on exactly the same terms as would be the case if the United Kingdom Government were proposing a referendum, where we put the referendum to the Electoral Commission for its assessment on the same criteria. I will come on to that in a bit more detail in a moment. It will report to Parliament and ultimately Parliament will decide. We are seeking to put the Scottish Parliament in exactly the same position, vis-à-vis the question and the Electoral Commission, as the United Kingdom Parliament would be in any referendum which the United Kingdom Government were proposing.

[Lord Foulkes of Cumnock]

Would the Minister care to give his opinion about the question as currently proposed by the Scottish Government, which is,

“Do you agree that Scotland should be an independent country?”?

All the polling evidence, and one can consult MORI and others on this, shows that this kind of phraseology is biased and leads towards a particular outcome. It therefore fails the test on that basis.

Secondly, the Minister said that the referendum should be decisive. I am not clear what is meant by,

“Do you agree that Scotland should be an independent country?”.

It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my colleagues here, who think Scotland is currently an independent country in many senses. Is it not unintelligible, and therefore not decisive in any way?

[Lord Wallace of Tankerness]

My Lords, the key thing is that the Electoral Commission makes that judgment. I have heard the points made—with considerable conviction—by the noble Lord, Lord Foulkes, and others, but at the end of the day it is for the Electoral Commission to make that assessment. What it thinks about it, having done the testing on it, is far more important than what Ministers in the United Kingdom Government think.

Until relatively recently, I was the spokesperson for the Wales Office in your Lordships’ House and therefore during the referendum on the extension of powers for the Welsh Assembly. I could see at pretty close quarters the work done by the Electoral Commission in framing the question for that referendum—the noble Lord, Lord Wigley, will recall it. I was very impressed—not least because it faced the additional issue of the question being in Welsh as well as in English—by the thoroughness with which the Electoral Commission dealt with that. I was also impressed by the way in which my right honourable friend the then Secretary of State for Wales responded to the terms of the Electoral Commission’s report.

--- Later in debate ---

[Lord Foulkes of Cumnock]

Will the Minister give way on that particular point?

[Lord Wallace of Tankerness]

No—as the noble Countess said, the noble Lord will have an opportunity later, and I will certainly respond. Well, if it is very quick, yes.

[Lord Foulkes of Cumnock]

Does this include whether money can come from overseas sources, as well as total expenditure?

[Lord Wallace of Tankerness]

When I respond to the debate I will give a more detailed response to that, but I think that those arrangements are already there under PPERA.

That is what happened in previous referendums such as the 2011 referendum in Wales on further powers for the Welsh Assembly. In that referendum, the Electoral Commission recommended that the spending limit for designated campaign organisations should be set by reference to the expenditure limits that applied to elections to the relevant legislature. In its response to both Governments’ consultation documents, the Electoral Commission provided its view that the model remains appropriate for the Scottish independence referendum.

The Electoral Commission has also met the parties represented in the Scottish Parliament to seek their views on the financial arrangements. When the Scottish Government set out their final proposals for financing the referendum campaign in their Bill, they must set themselves aside from their own campaigning interests and recognise that their approach is being watched by all of Scotland, and indeed by the wider international community. This is a point which the Deputy First Minister, Nicola Sturgeon, herself recognised when she said that the poll must satisfy the highest standards. It is only right that we use the bar that she has set to determine whether what is proposed is appropriate.

Both Governments agree that the basis for the franchise will be that for the Scottish Parliament elections —that is, those UK or EU citizens who are resident in Scotland. Again, that is set out in the agreement.

In addition, the Scottish Government propose to give 16 and 17 year-olds the right to vote. I recognise and very much respect the fact that there are differing views on this issue in this Parliament and in this House. My party, the Liberal Democrats, supports the principle of 16 and 17 year-olds participating in all elections; our coalition partners do not. Indeed, there are views on both sides of the Chamber on that issue. However, in devolving the power to hold the referendum, we respect that this is a matter which should be debated and determined by the Scottish Parliament.

Indeed, where the Scottish Government and Parliament have the power to hold referendums and elections already, they have chosen to allow some 16 and 17 year-olds to vote. However, the Scottish Parliament’s decision with respect to health board elections and Crofting Commission elections in Scotland has set no precedent for any elections for which the United Kingdom Government and Parliament are responsible.

I fully expect the Scottish Government’s proposals to be debated robustly in the Scottish Parliament. It will be for the Scottish Government to make their case for this proposal and to deal with the issues that arise.

I can make it equally clear that any decision taken by the Scottish Parliament for the referendum will not affect the voting age for parliamentary and local government elections in the United Kingdom. That remains the responsibility of this Parliament alone to determine.

I turn to an issue which has attracted comment, particularly from the Scottish Government. The concluding paragraph of the Edinburgh agreement contains a commitment by both Governments to hold a referendum that is legal, fair and decisive. It is fair to say that there have been some creative interpretations of that paragraph in recent times, so I want to take the opportunity to restate its clear and very obvious meaning. Perhaps it is worth reminding the House what it actually says:

“The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum which is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”

This means that the two Governments will conduct the referendum on the same constructive terms as they work on today. It means that if the referendum follows the path set out in the order and agreement, its outcome will be decisive. It means also that, regardless of what the result is, that constructive relationship should continue as we move forward. I believe that that is good practice and common sense. Paragraph 30 is a statement of our determination to hold a referendum that is legal, fair and decisive. However, it does not and cannot be interpreted in a way that pre-empts the implications of that vote. It is important that everyone is very clear about that reality.

Scotland’s future within the United Kingdom will be the most important decision we in Scotland take in our lifetime. Facilitating a legal, fair and decisive referendum is critical. That is why we consulted on this issue. That is why both the Scottish Government and the United Kingdom Government spent many hours discussing and negotiating the process. That is why we seek the support of the House today to approve this order.

Debating this order in this House today marks an important step as we move from discussions on process to what many of us want to do—get to the substance of the debate. It is essential that the referendum decision is focused on determining whether Scotland chooses to remain an integral part of the most successful partnership of nations that this world has ever seen and to remain part of a family of nations that works in the interests of all, or whether Scotland wishes to separate and go it alone.

That is not a decision that should be taken lightly; it should be taken after examination of the facts. I strongly believe that, with the support of colleagues across the House, across Scotland and across the whole of the United Kingdom, fellow Scots will join me in autumn 2014 in choosing to stay part of this very valued United Kingdom. I believe that we are indeed better together. In the mean time, I commend this order to the House.

Amendment to the Motion

--- Later in debate ---

[Lord Wallace of Tankerness]

I certainly intend to deal with that. It is a fair question which has been echoed across the Chamber in this debate.

Donations from overseas are dealt with by paragraph 28 of the agreement, which indicates that the rules under PPERA will apply. PPERA states that donations of more than £7,500 must be recorded and declared publicly and that donations of more than £500 require individuals to be registered in the United Kingdom. It is intended that these rules will apply in this referendum and the agreement has set that out. In other words, it is the same rules as are agreed under PPERA.

[Lord Foulkes of Cumnock]

Does that mean that more than £500 can be donated to the campaign from people in England?

[Lord Wallace of Tankerness]

I understand that that would be the case, yes.

My noble friend Lord Forsyth asked why broadcasting and mailshots were included in the order whereas other issues were not. The simple answer to that is that broadcasting and the Royal Mail are outwith the competence of the Scottish Parliament. Legislation brought forward by the Scottish Parliament cannot deal with these issues unless competence has been transferred. That particular part of the order transfers competence in order for the broadcasting arrangements and mailshots to be dealt with.

My noble friend and many other noble Lords asked about the nature of the question. Numerous people have found flaws with the question of whether Scotland is a country, a state or a nation, as the noble Lord, Lord Sutherland, made clear. I do not stand here to defend the question that has been put forward. It is not my job to defend it; nor would I wish to defend it. It is important that that should be a matter for the Electoral Commission, which is why it has been asked to advise.

The United Kingdom Government recognised in their consultation paper that the Electoral Commission’s role in referendums was to consult on the intelligibility of the proposed question and to report to the UK Parliament. We would have come under considerable pressure and criticism if it had been suggested that the Scottish Parliament should be treated in a different way. I will pick up on this point, because it is quite central to a lot that has been said in this debate. I will not go into the personalities, but we know the ability of not only the leader of the Scottish National Party, but in many ways the Scottish National Party itself. One thing that they have quite excelled at—those of us who have been around Scottish politics know this only too well—is their ability to nurse a grievance and to milk a grievance. That is what the noble Lord, Lord McAvoy, said about the timing of this. We do not want to give them another sense of grievance. If we had proposed that the Scottish Parliament was in some way to be treated in a lesser way with regard to a question after it had gone to the Electoral Commission than the United Kingdom Parliament was treated, we would have given them cause for a grievance.

The noble Lord, Lord Reid, was absolutely right to point out that this is a question which will come back to haunt them if they choose to ignore the advice of the Electoral Commission. I know that my noble friend Lord Forsyth said that he did not want this to be two years of picking on points, but it would be quite legitimate, if an attempt was made to put a biased question, for that to be pointed out and for the political consequences of that to be reaped. However, I would not wish, and what we have sought to avoid—and have successfully sought to avoid—is a two-year campaign in which the United Kingdom Government and Parliament are in the dock because we somehow or another have tried to rig the referendum. That is why it is so crucially important that we do not give, and we have not given, any opportunity for the Scottish Government to cry foul and say that we are somehow rigging the situation.

In an interesting article by John Rentoul in the Independent in November of last year, in which he praised my right honourable friend the Secretary of State for Scotland, he said:

“This sudden removal of the London Government from the see-saw meant that Salmond lost his balance. When Cameron went to Edinburgh in February to announce that he would not try to stop the Scottish National Party holding a referendum, Salmond found that the great London counterweight, against which his career had been built, had been taken away”.

It is important that we do not give that opportunity, or that excuse, for a grievance to be mounted. That is one of the main reasons—a key reason—why we are dealing with this in the same way as we would deal with a question in a UK referendum that had been legislated for by the UK Parliament.

That answers the question about the referee and the player. I take the point made by the noble Lord, Lord Sutherland, who came forward with a question himself. It is up to people with an interest to make their views on this known to the Electoral Commission. Clearly it would not be appropriate from the Dispatch Box to determine the agenda of the Scottish Parliament, but I rather hope that Members of the Scottish Parliament will note what has been said about them having an opportunity to debate this issue.

I will make one further point on this, which was made by the noble Lord, Lord McConnell, and was echoed by the noble Lord, Lord Empey. Lots of harsh words could, and almost certainly will be, exchanged in the next two years, and there is potential, as the noble Lord, Lord McConnell, said, for a nasty taste to be left in the mouth. That is why there is a responsibility on the Scottish Government and the Scottish Parliament to ensure that the question that is asked is not a source of that sour taste in the mouth. Just as we have sought, as a United Kingdom Government and a United Kingdom Parliament, to produce a scheme and process that will not allow anyone at the end of the day to cry foul—“It wasnae fair”—it is also incumbent on the Scottish Government and, above all, on the Scottish Parliament to ensure that when they devise the rules, procedures and indeed the questions for this referendum, they do not give anyone the opportunity at the end of the day to say “It wasnae fair”. It is important that the outcome of this referendum is decisive and properly recognised as having been fair and properly arrived at by the people of Scotland when they cast their votes in 2014.

Constitutional Settlement

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Thursday 11th October 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, there is a theme. I hate the word “subsidiarity”, but the overall theme is about where decision-making can best be achieved and delivered consistent with good governance. I think the issues and headings that we identified in the Calman commission, which were taken forward in legislation, did subscribe to that theme. Also, as I have said, a very important theme was the accountability that came to the Scottish Parliament with the devolution of financial powers. It must now answer to the people of Scotland as to how it raises money and not solely as to how it spends money.

There is more than just what we have achieved in the Scotland Act 2012, which of course is still ongoing in terms of its delivery. We have established the McKay commission to explore how the House of Commons might deal with legislation that affects only part of the United Kingdom following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The Silk commission, set up in October last year to review the present financial and constitutional arrangements for Wales, is due to publish its first report on financial accountability within the next few weeks. These are significant processes, and we must allow them to reach fruition and not impede their development. They have a common aim, which is to deliver improvement in the lives of the people in Scotland, Wales and Northern Ireland. Each evolved in different historic ways, and we believe that recognising the different features and factors that make up the constituent parts of the United Kingdom has been an important part of the process.

My noble friend suggested that we should be looking at alternative constitutional settlements. The noble Lord, Lord Soley, suggested there should be a royal commission, while my noble friend Lord Maclennan said this is something that might go on for years and not something that was going to be done in just months. My noble friend—as he was, and still is personally—Lord McConnell talked about the Scottish Constitutional Convention, one of whose features was that it had a very clear end in sight. It is important that we remember that.

I was interested by the number of noble Lords, including the noble Lords, Lord Soley—whose article I have had the privilege to read—Lord Foulkes and, I think, Lord Judd, who mentioned federalism. I can assure the noble Lord, Lord Foulkes, that it remains the policy of the Liberal Democrats and I am sure that when he reads the report of the Campbell committee, which was set up by the Scottish Liberal Democrats, in the next weeks, he will be pleasantly reassured, not necessarily surprised, by what he reads in that.

Numerous ideas have been put forward by your Lordships in debate. My noble friend Lord Steel of Aikwood referred to the 1979 manifesto when he talked about the second Chamber having a role to play in the representation of the nations and regions of the United Kingdom. If I am not mistaken, I rather suspect that was in the evidence that he wrote for the Scottish Liberal Party to the Kilbrandon commission in about 1967. We can check back, but it has been a consistent theme for some time. Clearly there are issues there that merit further examination and discussion.

[Lord Foulkes of Cumnock]

The Minister has kindly acknowledged that almost everyone who has participated in this debate has called either for a UK constitutional commission or a royal commission. I am not expecting him to announce one today or even to say that he agrees with that. However, surely the very least he can do is to say that he recognises this groundswell, on all sides of the House, and that he will take it away and discuss it with his coalition and his own colleagues. Can he do that?

[Lord Wallace of Tankerness]

The noble Lord certainly makes a tempting proposition.

The noble Lord is right to say that there has been a groundswell among people here, but, as my noble friend Lord Maclennan said, experience in many other countries seems to suggest that constitutional conventions work best when they come from the citizenry and work up rather than from Houses as grand and noble as this and feed down. They are often driven by the public rather than politicians. That was certainly the case with citizens’ assemblies in Canada and the Netherlands, which considered issues such as electoral reform before putting their findings to a referendum, and Iceland, where a constitutional council drafted a new constitution for consideration as a Bill by the Parliament. It is also fair to say that the Scottish Constitutional Convention did not come from the Executive, the Government. Indeed, it came in the face of the Government’s opposition to it. It came from civic Scotland and two of the opposition parties and was very successful because it engaged civic Scotland.

Scotland: Referendum

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 10th October 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, my noble friend and I have a party manifesto commitment to votes for 16 and 17 year-olds but that is not the policy of the Government. Obviously, if there was a referendum on the European Union it would be for Parliament to determine the franchise for that. I can rather hear, if that does not happen, an amendment coming on from my noble friend.

[Lord Foulkes of Cumnock]

My Lords, this has not really been thought through. If there is going to be a separate register for the referendum, who is going to draw up that register, who is going to go round the houses finding out the 16 and 17 year-olds, who is going to publish the register, and who is going to bear the cost of it, the Scottish Government or the United Kingdom Government?

[Lord Wallace of Tankerness]

My Lords, giving the example of the AV referendum last year, it was not a case of someone having to go round and draw up a separate register for that referendum. There was a register there and we indicated what the franchise was by specifically adding Peers. As I have indicated, if that agreement is reached, it would not be this Parliament passing the legislation, as already happens with elections on devolved matters; for example, the Scottish Parliament has already passed an extension of the franchise to 16 and 17 year-olds for elections to health boards, so there is already a precedent for it having happened in Scotland.

Justice and Security Bill [HL]

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 9th October 2012 Lords Chamber

[Lord Wallace of Tankerness]

That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1, Schedule 1, Clauses 2 to 15, Schedules 2 and 3, Clause 16.

[Lord Foulkes of Cumnock]

My Lords, how is it possible to get clarification of what the noble Earl, Lord Attlee, said in reply to a question? I was not clear whether he said that a Private Notice Question, if we tabled one, would be answered by him this week. It is unsatisfactory that we have not had an apology or any explanation for one of the worst débâcles we have seen for years.

Wales: National Assembly Elections

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 18th June 2012 Grand Committee

[Lord Foulkes of Cumnock]

Is it not possible that this Parliament could be dissolved in some other way before that date? That could happen if, for example, the coalition was to split and the Prime Minister no longer felt that he had the confidence of the House of Commons. The general election might then take place on a date other than that which the noble and learned Lord has specified.

[Lord Wallace of Tankerness]

That is a theoretical possibility, and the provisions for triggering an election are set out in the Fixed-term Parliaments Act 2011. Indeed, I can recall the noble Lord and other noble Lords present today debating those provisions at some considerable length. So it is possible, but the primary position under the Act is that the next election will take place on 7 May 2015.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

Perhaps I may make a little further progress before I take the intervention.

As I have said, that date would coincide with elections to the National Assembly for Wales. The Welsh Government raised concerns that a parliamentary poll on the same day could overshadow an Assembly election and, following a vote in the Assembly, the Fixed-term Parliaments Act itself deferred the date of the next Assembly elections by one year, to 2016.

[Lord Foulkes of Cumnock]

The Minister is obviously right if that is what happens, but is it wise to move ahead with other legislation on the basis of something that may not actually happen? It may be the most likely event, but it is not necessarily an absolute certainty. Is it wise to change legislation on the basis of something that may not be final?

[Lord Wallace of Tankerness]

The essence of a consultation is for considerations of that kind to be imported into the consultation, but the position is that if the law remains unchanged, and if it is the case that the next general election is held on 7 May 2015, under the five-year fixed-term provisions, five years hence from that date would be the first Thursday in May 2020. If the law with regard to the National Assembly for Wales has not changed, then by reverting back to a four-year term, the Welsh Assembly will also take place on the same day in May 2020. That is why we are examining the question of whether the Assembly should move on a more permanent basis to a five-year term. However, that is to accept that at any time either in this Parliament, the next Parliament or the one after that, there could be a situation where the Parliament does not run for its full five-year term. No doubt future Parliaments would have to address the consequences of that. It is also worth pointing out that if we had not had an Act for fixed-term Parliaments and this Parliament, as previous Parliaments have done, ran to its full term, the dates for the two elections in May 2015 would coincide without any prior provision having been made for that.

Scotland: Constitutional Future

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 26th March 2012 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government when they expect to publish their response to the consultation on Scotland’s constitutional future.

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

My Lords, on 20 March the Secretary of State wrote to party spokespeople setting out an initial summary of the findings of the consultation. This letter was deposited in the Library and I set out the initial findings during the Committee stage of the Scotland Bill on 21 March. Officials are currently reviewing and analysing the consultation responses and a full summary will be published before the Third Reading of the Scotland Bill.

[Lord Foulkes of Cumnock]

My Lords, will the Minister confess that the Government have broken their promise to publish the response in advance of the Report stage of the Scotland Bill, which we are taking this afternoon? In order to make amends, will he discuss with his colleagues a way of getting every department of government, particularly the Treasury, the Department for Work and Pensions and the Ministry of Defence, to commission independent reports in advance of the referendum on the real costs of breaking up Britain?

[Lord Wallace of Tankerness]

My Lords, I hope the noble Lord will agree that we had a good debate about the referendum in Committee last Wednesday. I was able to give clear indications to the effect that, for example, the majority who responded to the consultation believed that powers should be devolved to the Scottish Parliament and that a great majority of those also supported the use of a Section 30 order. Our initial analysis shows clear support for a single question on independence, for the referendum to be held sooner rather than later, and for the involvement of the Electoral Commission. With regard to the second part of the noble Lord’s question, I hope that all departments will be very much engaged in setting out a positive case for the union.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 26th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, your Lordships will remember that last Wednesday I indicated that agreement had been reached between the United Kingdom Government and the Scottish Government on a number of changes to the Scotland Bill and supporting non-legislative measures. Following this agreement the Scottish Government tabled a legislative consent Motion recommending the Scottish Parliament support the Bill. The amendments in this group are part of the changes to the Scotland Bill as a consequence of the agreement that has been reached between the Government and the Scottish Government to ensure that the Bill continues to retain the support of the Scottish Parliament, previously affirmed in an overwhelming vote of support in March 2011.

These amendments will remove Clause 7, Clause 12 and the associated Schedule 2, Clause 13 and Clause 26 of the Bill. With regard to Clause 7, the Government’s intention in pursuing the limited reference procedure contained in that clause was to prevent unnecessary delays to Bills in the Scottish Parliament, where the majority of provisions are considered to be within the legislative competence of that Parliament. The Scottish Government had raised concerns that this clause could have potential for introducing unintended consequences and delay in enacting legislation in the Scottish Parliament.

Likewise, during Committee consideration, the noble and learned Lord, Lord Boyd of Duncansby, raised concerns about whether the provision was necessary, as he believed that the existing arrangements appeared to be adequate. As a result of our discussions with the Scottish Government, we have agreed that this clause should be removed. The Scottish Government accept that in future, as at present, only a full Act of the Scottish Parliament can be referred to the Supreme Court, even if only a single provision raises competence issues.

Amendment 14 removes Clause 26 from the Bill. This would have allowed UK Ministers to implement international obligations on a UK basis, where it would be more convenient to take action on such a basis. The Scottish Government believe that this clause could undermine the clarity about which Parliament and which Ministers have responsibility for a particular matter. Both Governments acknowledge the importance of ensuring that all of the United Kingdom's international obligations are fully implemented across the UK on a timely basis.

The UK Government are willing to remove this clause, on the understanding of course that Scottish Ministers will ensure that any international obligations that fall within their responsibility are implemented on time. In turn, we have made clear to Scottish Ministers that the Government would be prepared to use their existing powers of direction under Section 58(2) of the Scotland Act 1998, should we have concerns about the implementation of international obligations within the remit of Scottish Ministers.

Clause 12 and associated Schedule 2 relate to insolvency. It would have returned legislative competence back to the United Kingdom Parliament in relation to all aspects of the winding up of business associations. The United Kingdom Government continue to believe that, where appropriate, Scottish procedures for insolvency should be in step with the rest of the United Kingdom. Our discussions with the Scottish Government have provided us with assurances that these concerns can be addressed without amending the devolution settlement in this respect. We therefore seek to remove this clause on the understanding that the Scottish Government will consider the modernisation measures for the devolved areas of winding up in Scotland introduced into the reserved insolvency procedures in 2009 and 2010; and have provided assurances that future changes made by the UK Parliament or Ministers in this area will be considered timeously by the Scottish Government in their area of competence.

Finally, Amendment 7 seeks to remove Clause 13, dealing with the regulation of health professionals, from the Bill. While the Scottish Parliament has had power to introduce for Scotland separate legislation in respect of regulating a number of health profession—that is, those not listed by reference to specific statutes in Schedule 5 of the Scotland Act—it has chosen not to do so. Rather, it has approved the use of the existing, reserved machinery, in the form of orders made under Section 60 of the Health Act 1999, to regulate new groups of healthcare professionals.

During our discussions with the Scottish Government they raised some concerns about this clause. The Scottish Government have provided us with clear assurances that they will work closely with the Government to ensure that consistent regulatory regimes apply to all health professions. Given these assurances, the Government are content to continue to develop policy in relation to regulating the health professions with the Scottish Government. The United Kingdom Government, through the Department of Health in England, will continue to engage closely with officials, not just in Scotland but also in the Administrations in Northern Ireland and Wales, to develop future policy proposals concerning the regulation of healthcare professionals.

The Government have received assurances on all these matters that the same effect that was sought by provisions in the Bill can be secured by non-legislative means. On that basis we have agreed to seek to take out the provisions from the Bill. I beg to move the amendments.

[Lord Foulkes of Cumnock]

My Lords, I wonder if this would be a good opportunity for the Minister in his reply to inform the House what will now happen in relation to the legislative consent Motion. It would be helpful if he could briefly give us a timetable about when it will be considered by the Scottish Parliament and the procedures thereafter. If there are any problems, how will this House be informed? Does he envisage that the legislative consent Motion will be passed through the Scottish Parliament without any difficulty; and are there any further procedures that may be necessary within this Parliament following the passage of the legislative consent Motion?

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 21st March 2012 Lords Chamber

[Lord Wallace of Tankerness]

I ask my noble friend to forgive me if I have misunderstood or misinterpreted what he said. A Section 30 order can take into account issues such as the use of the Electoral Commission. It can also take timing into account, as it can on the matter of whether there is one question or more. These are the things that we will seek to negotiate in a Section 30 order.

[Lord Foulkes of Cumnock]

If we go down that route and there is an agreement between the Scottish Executive and the UK Government about a Section 30 order and it is brought forward, can the Minister confirm that it could be debated in both the Houses of this Parliament?

[Lord Wallace of Tankerness]

Indeed, not only would it be debated but it would be voted on in both the Houses of this Parliament. If we move into Committee, we can probably have a much wider debate on these matters.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am in a position similar to that of the noble Lord, Lord Browne, in having to deal with matters that hitherto were dealt with by my noble friend in the Treasury. I fully accept that my noble friend’s amendment is a hook. I share the view expressed by the noble Lord, Lord Browne—

[Lord Foulkes of Cumnock]

Perhaps I may take the opportunity of sending good wishes to the noble Lord, Lord Sassoon, for a speedy recovery.

[Lord Wallace of Tankerness]

I hope that I did not imply that he was ill. I am not aware that he is.

[Lord Foulkes of Cumnock]

I assumed that he had retired hurt.

[Lord Wallace of Tankerness]

I am sure that, after all the good will that has been expressed, he will relish coming back to the fray next week. I do not for a moment think that he is ill; perhaps I may quash that rumour.

As the noble Lord, Lord Browne, indicated—and perhaps my noble friend Lord Forsyth would accept—to include only the people of England and to exclude the people of Wales, Northern Ireland and Scotland would not be appropriate. We should bear in mind that the proposals in the Bill were in the manifestos of the Conservative, Labour and Liberal Democrat parties, which applied throughout Great Britain at the last election. My noble friend indicated that he wished to return to the issue of the no-detriment principle, which he pursued on Thursday of last week. It prompted my noble friend Lord Sassoon to write a letter. My noble friend asked if it could be put in the Library. I will make sure that that is done, because it has the benefit of a flow chart that I could not begin to describe from the Dispatch Box.

I will try to explain—I accept that I will not necessarily succeed—what the no-detriment principle is about and why we believe that it is fair and does not detract from accountability. I agree with the noble Lord, Lord Kerr of Kinlochard, and with my noble friend Lord Caithness that more accountability is crucial and that the Scottish Parliament should be accountable not simply for spending money but for raising it. My starting point is that it is wrong to suggest that the no-detriment principle is about allowing the Scottish Government to have their cake and eat it.

The first flaw in the argument is to suggest that if there is a tax benefit—for example, through the measure in today’s Budget to raise the personal allowance, which I very much welcome—it will accrue to the Scottish Government. It will accrue to Scottish taxpayers, along with those of England, Wales and Northern Ireland. As I will seek to explain, it has an effect on the revenue that would then be generated for the Scottish Government.

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[Lord Foulkes of Cumnock]

I had not appreciated the qualification of being accepted by both Parliaments. If they are accepted by both Parliaments, that will fulfil my requirements and belief.

I have an amendment which suggests a further referendum on devolution—whether we should have the status quo, devo-plus, devo-max or a multi-option referendum. I am not in favour of that now and I shall not press that because that was going to be 35 days after independence. I confess that this amendment has not received universal support; in fact, it has not received any support at all, which is probably why I am not going to press it.

A stronger reason is that we heard a very powerful argument from both Front Benches that the 1997 referendum’s second question gives power to Parliament to decide further devolution. If both Parliaments, as my noble friend Lord Reid has agreed, decide on further devolution, I do not think a referendum is necessary.

Finally, there is the question of further devolution which the noble Lord, Lord Kerr, raised in his interesting intervention about porridge oats and punctuation. I agree—and now it seems the Prime Minister agrees—that further devolution needs to be carefully considered. We have got that in the Statement which the Secretary of State made today. It should be carefully considered; as a number of people have said, the devolution we have at the moment—which is the devolution of the Calman commission, the further extension—has been agreed on an all-party basis, and on the basis of consensus and consultation. That should be the basis of any further extension of devolution.

Both my own party, the Labour Party, and the Liberal Democrats, the Minister’s party, have commissions looking at this. In our debates on Thursday, we had an indication that already there is a degree of a mandate in relation to further fiscal devolution.

There are other issues in relation to the referendum, such as the role of the Electoral Commission, which I strongly support as being responsible for the conduct of the referendum. Another is the franchise, because while the Scottish Government propose to extend it to 16 and 17 year-olds, I believe there should be no unilateral reduction in the voting age just for one referendum. There are a number of other detailed matters which we will come to in the later amendments.

We now have this agreement on the legislative consent Motion. We have substantial agreement that greater tax powers are acceptable, and that borrowing consent, which we are giving to the Scottish Parliament, is welcome, and that specific areas are now being devolved. Let us not make any mistake about it: this implementation of the Calman recommendations is a very substantial increase in the devolved powers of the Scottish Parliament. We should not be hiding that under a bushel. We should be proclaiming it from the rooftops. Many of the advances have come from pressure from Labour MPs and Labour Peers. It is something I am now proud to support fully. I beg to move.

[Lord Wallace of Tankerness]

My Lords, it was thought at one stage that it might be helpful if I indicated the Government’s position on these points. I shall do that if the House thinks it would be helpful and at the end I will respond to points made in the debate as well as to more specific points made by the noble Lord, Lord Foulkes.

I also wish to thank noble Lords for helping to try to deal with these issues in two discrete groups. The first group concerns how to legislate for a referendum; for instance, whether there should there be one question or two on the ballot paper, the nature of a binding and advisory referendum, and whether it should be held across the United Kingdom. Indeed, my noble friend Lord Caithness has indicated that he wishes to discuss implications for the Scotland Bill of Rockall and, a place dear to my heart, Orkney and Shetland. Subsequently we will have a debate on one of the later groups on more practical but nevertheless very important matters relating to the referendum, including the role of the Electoral Commission, eligibility to vote in a referendum, and oversight of the referendum.

I want to endorse what the noble Lord, Lord Foulkes, said, when indicating that he supports the Government’s view of a referendum that is legal, fair and decisive. I think he said that fairness must be fairness for all, and it is a very important point. We will certainly come to debates on the franchise and the role of the Electoral Commission, but I would want to agree that the referendum must be conducted in a way that is deemed fair to all and that both sides are satisfied and can accept the outcome. There would be nothing worse than to have an outcome where one side or the other was crying foul. In all our views, this means adhering to the well-established rules for referendums, so that neither one side nor the other can claim that there has been a false referendum.

As I set out in my Oral Statement to your Lordships’ House on 10 January, the Scottish National Party won a significant victory in May 2011. In that election it campaigned for Scottish independence and its manifesto included a pledge to hold a referendum on independence. But winning an election victory is not sufficient. The SNP did not explain how, in legal terms, it proposed to deliver a referendum either in its manifesto or in the election campaign. Nor indeed did the Scottish Government set out their legal view or their plans for many months. As has been highlighted before in your Lordships’ House, this is not a matter that can be avoided. To legislate for a referendum on independence, the Scottish Parliament must have the power to do so, and it is the Government’s clear view that the Scottish Parliament does not have that power.

That is why on 10 January we published our consultation paper on how to deliver a legal, fair and decisive referendum. As I indicated earlier, officials are reviewing and analysing the responses and the Government will publish a full report on the consultation, but perhaps I may give some early indications. We received almost 3,000 responses. As I have already indicated, they came from members of the public in Scotland and beyond, and there were contributions from businesses, academics, political parties, trade unions and many others that belong to civic Scotland. I believe this will, and does, provide a sound basis for gauging Scottish opinion on the issues.

The Government’s central proposition in the consultation was, as has been said, that the referendum must be legal, fair and decisive. It is important that the responses we received are analysed thoroughly, but I can indicate some of the preliminary results on the key issues. First, on legality, we must turn to the Scotland Act 1998. The Act is clear. The Scottish Parliament cannot legislate on matters reserved to this Parliament, including,

“the Union of the Kingdoms of Scotland and England”.

Any Act of the Scottish Parliament is simply not law if it is outwith the competence of the Scottish Parliament. An Act of the Scottish Parliament is outside legislative competence if it relates to reserved matters. The question of whether a provision relates to a reserved matter is determined by reference to,

“the purpose of the provision, having regard (among other things) to its effect in all the circumstances”.

We are quite clear that the Scottish Government’s purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for this to happen. Both purpose and effect relate directly to the reserved matter of the Union. Your Lordships’ Constitution Committee, in its report published last month, said:

“An authoritative determination of the legal issues analysed in this chapter could be given only by the courts. Having considered the matter in detail, we are of the clear view that the … analysis offered by the UK Government is correct. Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to … authorise a referendum about independence”.

The committee welcomed the Government’s proposal that a Section 30 order be made to devolve power on the Scottish Parliament to legislate for a referendum on Scottish independence.

In our consultation document, we invited views on devolving powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly from Westminster. We have been clear throughout this process that it is the UK Government’s preference to work with the Scottish Government to secure agreement on the way forward. This is not a question about the mandates of Scotland’s two Governments. We believe it is about empowering the people of Scotland to participate in a referendum that is legal, and it is crucial that any referendum is beyond legal challenge. To provide for that legal referendum, we have set out our view that the power to legislate for a referendum should be devolved by the use of a Section 30 order agreed by both Governments and subsequently put to, and agreed by, both Parliaments.

Initial analysis of the responses received demonstrates that a significant majority agreed with that approach. That position was not simply supported by the volume of respondents, but by key academic experts and commentators including Professor Matt Qvortrup from Cranfield University, Professor Adam Tomkins of the University of Glasgow, Alan Trench of the University of Edinburgh, and representatives of organisations such as the Law Society of Scotland, the Electoral Reform Society of Scotland, the Royal Society of Edinburgh and the British Academy.

Noble Lords will also have noted that, soon after we published our consultation, the Scottish Government published their own document on 25 January. In that document the Scottish Government also acknowledged the legal problem and accepted that a Section 30 order was the best way to remove doubts about the competence of the Scottish Parliament. We welcome this endorsement, which the Secretary of State has discussed with the First Minister, and we look forward to continuing that dialogue over the coming weeks. Against that background, and indications that the Scottish Government want to reach agreement on these critical matters, I can confirm that we will not be tabling any government amendments on a referendum in the Scotland Bill.

In addition to ensuring that the referendum is legal, the Government have been clear that it should also be fair and decisive. That will be discussed when we debate the second group of amendments.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble Lord makes an important point, which was reflected in some of the responses to the consultation, not least from SSE. My noble friend Lord Forsyth and the noble Lord, Lord Empey, made the point that we want the debate to move on to the substance of independence, a point also made by my noble friend Lord Caithness when he raised the question of the currency. Those are questions that the Scottish Government ought to be addressing. I entirely agree. It is important that we get the process resolved, and resolved swiftly, but it is equally important that we get on to the substantive debate about the benefits to Scotland from remaining part of the United Kingdom, part of the most successful union of nations, certainly in modern times, and possibly for even longer.

As noble Lords will be aware, my right honourable friend the Secretary of State has raised six questions with the Scottish Government to which we still await answers. Many others, including Members of your Lordships’ House, have raised other questions. I am confident that when we get to the substance of the referendum debate, we can expose the weaknesses in the independence argument and do so on a positive footing by showing what is really positive about Scotland remaining part of the United Kingdom. On that basis, I invite the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, we have an excellent debate. We have had a very helpful reply from the Minister. We have another debate looming. I therefore immediately beg leave to withdraw my amendment.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Thursday 15th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

That is perfectly fair and I will come on to address that. I was simply making the observation that there is, currently, an outstanding legislative consent Motion, which was actually supported by many members of the current Scottish Government. It is certainly our intention that we should have a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and I and my ministerial colleagues have been working very hard to secure the support of the Scottish Parliament for such a Motion. I am sure the Scottish Government would acknowledge the same.

We have been working together to consider and to assess the request for amendments to the Bill. It would be wrong to speculate on the outcome of the work being undertaken with the Scottish Government, but the key point is that I can assure the House that we are working hard to ensure that the Scottish Parliament will vote in favour of a legislative consent Motion for the Bill. It would not be appropriate to get ahead of discussions between Ministers—as noble Lords have highlighted, it is for the Scottish Government to propose a legislative consent Motion and we must allow the interministerial discussions to continue and not get ahead of them. However, I know that my right honourable friend the Secretary of State had conversations yesterday with the Scottish Government. Indeed, before coming to your Lordships’ House today, I was engaged in discussions about moving forward, to get into a position where we can get an agreement.

The Sewel convention is about respecting the devolved areas for which the Scottish Parliament is accountable. It provides that the United Kingdom Parliament will not normally legislate on devolved matters without the Scottish Parliament’s consent. I believe we have gone further than with any other Bill in considering and taking on board the view of the Scottish Government and Parliament, and we will continue to work to reach agreement. The Secretary of State has made clear, in letters, phone calls and meetings with Scottish Government Ministers, that we will properly consider all their requests for changes to the Bill. I understand and readily recognise that noble Lords are keen to hear the outcome of the discussions with the Government, but I urge noble Lords to continue with their thorough scrutiny of the Bill, alongside our work to agree a legislative consent Motion. I hope that by the time we come to Report, it will have been possible to update your Lordships on the intergovernmental discussion.

[Lord Foulkes of Cumnock]

It would be helpful to be updated at that stage and to set a target, in our plan, for an update to take place on the ministerial discussions. Given the upcoming recesses and the fact that the Bill will have to have Royal Assent before the final Dissolution of Parliament ahead of the Queen’s Speech, we do not have much time. It is important to plan the sequence of events. Can the Minister indicate what his target date is for the legislative consent Motion to go to the Scottish Parliament? Is it between Report and Third Reading, which would seem to be the logical time?

[Lord Wallace of Tankerness]

I agree with much of what the noble Lord says. He is right to point out that prorogation is sooner rather than later and that it is necessary to get Royal Assent before that. As has been acknowledged, it is not for United Kingdom government Ministers to table the legislative consent Motion, but the Scottish Government are well aware of the proposed timings and of the stages when any amendments would have to be laid so that your Lordships’ House would have adequate opportunity to discuss them.

Before I gave way to the noble Lord, I was about to indicate that I hoped it would be possible to update your Lordships before Report on intergovernmental discussions. It would not be helpful—and no doubt many of your Lordships present have engaged in such negotiations—for negotiations to take place by telegraphing from one parliamentary Chamber to another. That would be counterproductive. However, I reassure your Lordships that serious efforts are being made to reach agreement. Given the point made by my noble friend Lord Forsyth about the important issues we have to debate today, I hope we can agree to move into Committee so that we can get on and debate them.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I hope that I can reassure the noble Lord, Lord Grocott, that this is not an abuse. The matter was agreed because we were meeting a legitimate concern and expectation, expressed by a number of your Lordships across the House, that we should defer some sittings of the Committee until such time as the United Kingdom Government’s consultation had concluded. That was welcomed at the time; and because of that, the timescales inevitably had to be short.

[Lord Foulkes of Cumnock]

With respect to the Minister, all that was agreed was that the discussion of the referendum should be taken in Committee. There was never any discussion about Report across the Floor of the House.

[Lord Wallace of Tankerness]

There was an expectation across the Floor of the House that we should defer Committee discussion until the end of the consultation. It was agreed between the usual channels that if we did that, it would necessitate a shortened period between Committee and Report—if only for the obvious reason of being able to get to Royal Assent, as the noble Lord pointed out.

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[Lord Foulkes of Cumnock]

I wonder whether everyone in the House is absolutely clear, because I am slightly confused about it, that we have now degrouped from my amendments the amendments tabled by the noble Lord, Lord Forsyth, on the referendum on taxation powers, so we are just dealing with Amendments 53, 55, 56 and 57.

[Lord Wallace of Tankerness]

It is certainly my understanding, and I think it is the understanding of my noble friend, that the amendments tabled by the noble Lord, Lord Foulkes, Amendments 66 to 69 and Amendments 75, 76, 84 and 86, are now grouped with the amendments to which my noble friend has just spoken. We are at the moment trying to get a fresh piece of paper that sets them out. It is my understanding that they are on much the same subject.

[Lord Foulkes of Cumnock]

We are very confused, because I got a draft that said that, but the paper from the government Whips’ Office with today’s lists for your Lordships’ House lists the Questions that were tabled, my noble friend Lord Barnett’s Motion and, as the main business, this Bill and the target for today. It then has the grouping for amendments. Everyone picked this up on the way in, and I have assumed that that is the basis on which we are debating.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, we return to the issue of the referendum. In the group of amendments to which the noble Lord, Lord Foulkes of Cumnock, has spoken, there is an amendment that would require a referendum to be held before further taxation powers can be devolved and a referendum that would be required before Part 3 of the Bill would come into force. Somewhat curiously, Amendment 75 would ensure that the finance provisions in Part 3 of the Bill—other than the consequential amendments related to the Scottish rate of income tax and the powers in Clause 37—and the clause related to Antarctica in Clause 14 would come into force only two months after a referendum in which the majority of participants had voted in favour of Parts 1, 2 and 3 of the Act. We have an opportunity for many referenda—or referendums. I am a supporter of referendums in the grammatical sense—not in the sense of holding them—but we are not going down that route at the moment.

As the noble Lord, Lord Browne indicated, the debate quickly moved on to devo-max and other variations on that. I do not intend to follow that, as I think that the amendments are about whether we should hold a series of referendums. On that issue, I remind the Committee what the Calman commission said in paragraph 3.91 of its report:

“Tax devolution can provide accountability. We concluded in our First Report that the devolution of all taxes to the Scottish Parliament would not be consistent with the maintenance of the Union, and this remains our view”.

That was a view that the noble Lord, Lord Sewel, was expressing. I am biased, because I was a member of the commission, but in much of the analysis that it did in trying to devise the balance of taxation between the United Kingdom Parliament and the Scottish Parliament the commission looked at the implications of any proposal for social and economic union. That echoes the speech of my noble friend Lord Maclennan of Rogart. I refer to a social union not only of constituent countries of the United Kingdom but of the many regions within Scotland, Wales, Northern Ireland and England.

The noble Lord, Lord Foulkes, asked about the 1997 referendum and the noble Lord, Lord Browne, has indicated his interpretation. It is difficult, 14 and a half years after the event, to be too prescriptive about what interpretation you may make of it, but it is clear in 1997 that the Scottish electorate gave a clear mandate for a Scottish Parliament with tax-varying powers. Some 63.5 per cent declared in favour in terms of tax-varying powers and 10 per cent more than that on the idea of having a Scottish Parliament. We have to recognise that the debate leading up to the referendum was around a specific proposal for tax-varying powers, plus or minus 3 pence. Equally, many argued that it was an argument on the ability of the Parliament to assume a degree of financial accountability for taxation and spending decisions. It was an important principle, and a mandate flows from the 1997 referendum that the Parliament should have a degree of financial accountability for taxation and spending decisions.

[Lord Foulkes of Cumnock]

The Minister used the word mandate, but my noble friend Lord Browne of Ladyton used the phrase “partial mandate”, which is a new legal concept. I know that the noble and learned Lord and my noble friend are both distinguished lawyers, but I do not understand the concept of a partial mandate. What does the Minister mean exactly by the 1997 Act giving a mandate? Is it a mandate for any tax powers or for income tax-varying powers alone?

[Lord Wallace of Tankerness]

The noble Lord did not quite hear what I said. Many people argued that the Scottish Parliament should have a degree of accountability for taxation and spending decisions. As I said, there was a clear mandate that there should be that responsibility or accountability for taxation. That was why I qualified it, because we should not run away from the fact that it was in the context of a campaign that was very much focused on the plus or minus 3 pence. That was why I was not going to read more into it than that Scottish people clearly wanted a Parliament back in 1997 that had accountability for taxation as well as for spending. Nothing since then has suggested that that has in any way changed. Indeed, it is clear that the idea of increased financial accountability for the Scottish Parliament continues to have widespread support in Scotland. It was certainly the thrust of most of the representations made to the Calman commission that there should be increased accountability. My noble friend Lord Steel of Aikwood said in a Donald Dewar memorial lecture that it was not sustainable for a Parliament to exist on a 100 per cent grant voted from another Parliament and that there was a need for greater financial accountability. That is what we seek to deliver in this Bill and we believe that the scheme laid out in the Bill is significant. It offers new powers to the Parliament to match spending powers with responsibility and accountability and does so very much within the broad framework of the 1997 Act. I do not believe that the additional referendums that the noble Lord, Lord Foulkes, proposes are necessary for the powers contained in this.

The noble Lord asked about the mandate. I indicated in response to the amendment moved earlier by my noble friend Lord Forsyth that the manifestos of the Conservative, Labour and Liberal Democrat parties at the 2010 election contained the commitment to implement the proposals of the Calman commission. The fact that these were widely supported, not just in Scotland but in other parts of the United Kingdom, provides a mandate for the provisions within this Bill.

My final comment, echoing what my noble friend Lord Forsyth and others said, is that the main referendum we have to focus on is the one which will secure Scotland's future in the United Kingdom. That would not be assisted by having the plethora of other referendums which would perhaps be the consequence of the amendment in the name of the noble Lord, Lord Foulkes.

[Lord Foulkes of Cumnock]

My Lords, as I said at the start, the purpose of my amendment was to have a debate on it. There are a number of amendments, as the Minister rightly said, but I am not sure that the one on Antarctica has anything to do with me. I cannot remember tabling one about Antarctica, but I certainly tabled one in relation to Calman or further fiscal responsibility. I will come back to the Minister’s point on that, because there is an inconsistency in what he says. That is the main point that needs to be made.

First, I totally understand what my noble friend Lord Sewel said. He is absolutely right about redistribution, whether it be redistribution within the whole United Kingdom, within England or within Europe. I am sure that my noble friend, who is a distinguished member of the Council of Europe delegation—

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, my noble friend raises an important point which goes beyond Scotland. It is a fundamental one and I cannot give him the full response that a profound question such as that demands, but clearly he has put an issue on the table and I am sure he may wish to raise it further.

[Lord Foulkes of Cumnock]

My Lords, I am grateful to everyone who has participated in this very good debate. It underlines what a number of us have said increasingly, as time goes on: it is a pity that we are debating things of such importance so late on a Thursday night. If we had had it at some other, more appropriate time people such as former heads of the Civil Service could have participated and advised us.

Devolution: Wales

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 28th February 2012 Lords Chamber

[Lord Wallace of Tankerness]

I hear the noble Lord and he may wish to make that point in the debate later.

[Lord Foulkes of Cumnock]

As regards the anomalies in relation to Welsh devolution and some of the problems arising from Scottish devolution, which we will be discussing at length later today, as well as the West Lothian question, on which the Government have set up a commission, would those matters not all be better dealt with if we were to look at the English dimension and devolution within or to England?

[Lord Wallace of Tankerness]

My Lords, I think that there has been some history of that, not least pioneered by the Government of whom the noble Lord was a member. I do not seem to remember that there was huge enthusiasm for it in the north-east of England, but it is still a very pertinent point and one which I am sure will be raised again in debates on this issue in the future.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 28th February 2012 Lords Chamber

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

My Lords, I thank all noble Lords who have taken part in this debate. It has been an interesting and useful curtain-raiser to our debates today and important points have been made. I do not intend to go down the history-lesson route but I will deal with the point made by my noble friend Lord Forsyth. It is an opportunity to explain why different terminology and a different process of appointment have been used. Quite clearly, there is genuine need for clarification of that matter and I hope I will be able to do that.

I will first take the issue of the qualification of the person who will be appointed as the Scottish Crown Estate commissioner. I thank my noble friend Lord Selkirk for his amendment. When I was Member of Parliament for Orkney and Shetland, I had many dealings with the Crown Estate on issues of udal law, not least as to whether certain marina berths should have charges levied on them by the Crown Estate, or whether slipways passed over land that belonged to the Crown Estate or to the udal landowner. Some I won, some I did not. However, it indicates the breadth of the work the Crown Estate undertakes, including fish farming and marinas. Inshore and offshore renewable developments are, of course, becoming increasingly important within the area covered by the Crown Estate.

The position of the Crown Estate commissioner requires experience of operating at a senior board level as well as knowledge of one or more of the business sectors and activities in which the Crown Estate operates. These points were very forcibly made by my noble friend Lord Sanderson of Bowden and by the noble Lord, Lord Curry, who obviously speaks from his own experience of having been a Crown Estate commissioner.

The fact that my noble friend’s amendment relates specifically to land management and law would put an unnecessary restriction on who could be appointed. Of course, as we have already heard in this debate, there are areas of the Crown Estate’s business other than property or law with which it may well be an advantage for an appointee to have familiarity. The Bill provides for the person who should be appointed as a Scottish Crown Estate commissioner to have knowledge of Scotland and conditions there, but that person might in addition have a much broader range of experience and expertise that he or she can bring to the board. There might also already be commissioners on the board with expertise and experience in the areas specified by the amendment.

On the second leg of my noble friend’s amendment—the experience of the functions of the Crown Estate—I think it is fair to say, and I am sure the noble Lord, Lord Curry, will correct me if I am wrong, that few if any Crown Estate commissioners when appointed had direct experience of the functions of the Crown Estate under the 1961 Act. The right person for the job will need to have knowledge of Scotland and other relevant skills and experience. I hope the Committee will agree with me that it is important to achieve a balance of appropriate expertise on the Crown Estate board without placing undue restrictions or stipulations that could well rule out people who might otherwise be suitable candidates. I certainly think that the spirit of my noble friend’s amendment is in seeking to ensure that those bits of experience were brought to bear, but I hope he recognises that it will be impossible through the appointments process to have regard to other fields of experience as well if we put on restrictions.

[Lord Foulkes of Cumnock]

The Minister mentioned the appointments process, but is there a clear understanding or requirement that the process must be carried out according to the principles of public appointments throughout the United Kingdom? I know that there are growing fears in Scotland, because of the dominance of the First Minister and the way in which he seeks to impose his views on institutions and organisations, that it is vital that there is a properly constituted appointments process for all public appointments.

[Lord Wallace of Tankerness]

I certainly believe that there should be transparency in the appointments process. Of course, we will come on to the actual mode of appointment of the Scottish Crown Estate commissioner, which would involve consultation with Scottish Ministers. It is fair to explain why, in terms of nomenclature and mode of appointment, we have different arrangements for the Crown Estate commissioner as opposed to BBC Trust members, for example.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for that explanation. Indeed, the commissioners are appointed under the Office for the Commissioner for Public Appointments code. I hope that that gives the assurance sought by the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth—but maybe not.

[Lord Foulkes of Cumnock]

Can we have assurances that, after the Bill is enacted, they will continue to be appointed under the Nolan code? A lot of us fear—and this applies to the Crown Estate commissioner and even more to the BBC Trust representative—that if there is any undue political interference in that appointment, a lot of people in Scotland would have grave concern.

[Lord Wallace of Tankerness]

My Lords, there is no intention to change the manner of appointments under the Office of Public Appointments code. However, I will come on to talk about the consultation process that is due to take place, which by its very nature, as it is between the Chancellor of the Exchequer and the Scottish Ministers, will have a political dimension to it. One of the purposes of appointments under the Office of Public Appointments code is to ensure that there is indeed transparency and open competition and to achieve, as well, a balance of skills and backgrounds and avoid any potential conflicts of interest.

The amendment would change “Scottish Crown Estate Commissioner” to,

“Crown Estate Commissioner for Scotland”.

Perhaps I may explain to my noble friend that “Scottish” is not intended to qualify “Crown”, or indeed to qualify the two words “Crown Estate”, but to qualify the three words “Crown Estate Commissioner”. There are Crown Estate commissioners and therefore “Scottish” is the adjective to be applied to them. Unless we put commas in, I am not quite sure how we could make it clearer than that.

--- Later in debate ---

[Lord Wallace of Tankerness]

As I indicated, the request was for a statutory right to attend. In a hypothetical situation, even if they were to be the UK Minister, they would still have to articulate what had been agreed at a quadrilateral meeting as the United Kingdom line. It is important that we recognise that for the most part this process works and has worked well. It is sometimes not the perception that one gets, but a lot of hard work and effort is put into it.

It is also the case that, when Scottish Ministers hold meetings overseas, the United Kingdom’s diplomatic missions overseas offer them the same level of support as they would to United Kingdom Government Ministers and delegations. I certainly can vouch for that. Indeed, that was my understanding shortly after I took office as the Deputy First Minister in the Scottish Executive in 1999. The then First Minister, the late Donald Dewar, indicated to me that the then Foreign Secretary, the late Robin Cook, had made it very clear that he wished Scottish Ministers visiting foreign countries to be accorded the full facilities. Certainly, it was always my experience that the help was very considerable.

It is also important to remember that, when representing devolved issues, the devolved Administrations can play a valuable role in promoting commerce, industry and culture. When Scottish Development International, a part of the Scottish Administration, arranges visits with a ministerial involvement, it works to try to bring jobs, employment and investment to Scotland and the United Kingdom, something which would be beneficial to the United Kingdom as a whole.

The noble Lord, Lord Morgan, and the noble and learned Lord, Lord Boyd, referred to the Länder. Certainly, one of the strengths of devolution is that, whereas perhaps in the past the United Kingdom Government could not readily relate to or have engagement with Catalonia or Saxony, that is a level of engagement that Welsh Ministers, Scottish Ministers and Northern Ireland Ministers are able to have, which benefits the United Kingdom as a whole.

I fear that this amendment would introduce a statutory requirement which—I have already indicated that I share the analysis of the noble and learned Lord, Lord Boyd—would not work. As I have also indicated, there is a memorandum of understanding, or concordat, in place to ensure that any engagement with Scottish Ministers is conducted in a constructive way. I hope that that will reassure Members of your Lordships’ House. The noble Lord, Lord Foulkes, has facilitated an opportunity to discuss these issues and I hope that he will follow through on what he indicated and will withdraw his amendment in the light of these assurances. This has been a useful debate.

[Lord Foulkes of Cumnock]

My Lords, I am very grateful to the Minister for a helpful reply. As he said, it has been a good debate, notwithstanding the manifest flaw in my drafting of the amendment, for which I take full responsibility. Now that the Minister has drawn our attention, or reminded those of us who have seen it and been involved with it previously, to the concordat on international relations, it might be useful to draw it again to the attention of the Scottish Government in the gentle, kindly way in which he is used to doing.

Perhaps I may say to my noble and learned friend Lord Boyd that even people of my age—even people at the age of my noble friend Lord Maxton and upwards—can come up with ideas occasionally. He was worried about sanctions. Let me underline that I am not suggesting this but, for example, if any expenditure incurred by a devolved Administration were ultra vires—in other words, they were doing things for which they had no responsibility whatever—sanctions could be available.

I should like to say how much I appreciated the intervention of my noble friend—perhaps I may call him that—Lord Wigley. Perhaps I can put it this way: we are not used to quite such sensible nationalists in our parts. I thought that his contribution was very diplomatic, sensible and helpful to the debate.

Now we come to the noble Lord, Lord Kerr of Kinlochard, who I suspect, from what I know of him and from his contribution, is not quite used to the hurly-burly of Scottish politics. He will know—if he does not, I will tell him—that all of us here involved in the hurly-burly of Scottish politics are willing to make our arguments in any ring that is made available. The noble Lord, Lord Forsyth, suggested one the other week. The noble Lord, Lord Steel, and I have discussed it.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 28th February 2012 Lords Chamber

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

My Lords, can I perhaps be somewhat boring and brief at this time of night by focusing on the amendment? It would insert the word “Devolved” into Clause 30, Clause 37 and Schedule 4, where the reference would become to the devolved Scottish Government. Clause 15 changes the formal name to the Scottish Government from the Scottish Executive. It was felt that the Executive were increasingly widely known as the Scottish Government and that it made sense to amend the Act to reflect public perception and to avoid confusion. However, the fact that the Scotland Act refers to “Scottish Executive” prevents the use of “Scottish Government” in legislation, contracts and other legal matters. Therefore, Clause 15 is designed to prevent inconsistencies in what the Scottish Executive are called by the public and in the legal name.

The noble Lord, Lord Foulkes, wishes to insert “devolved” in front of “Scottish Government”. That is unnecessary and may even lead to further confusion. Altering the name of the Scottish Government to “the devolved Scottish Government” would in no way strengthen the position of devolution. Indeed, it is important to note that no such prefix attaches to the devolved Administrations in Wales and Northern Ireland. It would look very odd and lopsided if it happened just in Scotland.

That said, this has been a useful debate on devolution. I will not go into all the highways and byways but some important points were made. Some of us who very much support what has happened over the past 12 years sometimes miss a trick because so often, ahead of the debates in 1997 and the referendum leading up to that, we talked about devolution in terms of the Scottish Parliament dealing with matters related to the domestic agenda of the people of Scotland and the United Kingdom Parliament being responsible for macroeconomic policies, defence, foreign policy, social security and pensions. Although we will undoubtedly debate where the boundaries should be—the Bill seeks to address some of these issues—I nevertheless believe that the idea of a Scottish Parliament within a United Kingdom still commands the support of the vast majority of the people in Scotland. I hope that the noble Lord will withdraw the amendment.

[Lord Foulkes of Cumnock]

I am convinced by the eloquence and brevity of both Front Benches. I beg leave to withdraw the amendment.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Thursday 2nd February 2012 Lords Chamber

[Lord Wallace of Tankerness]

It was oversight, I suspect, but it is important that we now address it. Following completion of the consultation, the Antarctic Bill is drafted subject to minor amendments and is awaiting parliamentary time. There would have been a clause in that Bill seeking to resolve the devolution issues, but, as this Bill is now before Parliament, we thought that it was more appropriate to deal with it here.

[Lord Foulkes of Cumnock]

Will the Minister confirm that South Georgia and the South Sandwich Islands are not included in the definition of Antarctica?

[Lord Wallace of Tankerness]

I hesitate, because I recall seeing a definition of Antarctica as being all seas and islands below 60 degrees south. I was assigned to an Antarctic Bill in the House of Commons because I represented islands north of 60 degrees north, which seemed to be interesting logic. I think that, because South Georgia and the South Sandwich Islands are British Overseas Territories, they are not included in the definition—perhaps I will receive some clarification on that.

[Lord Foulkes of Cumnock]

As I understand it, the Falklands are a dependent territory of the United Kingdom and the South Sandwich Islands and South Georgia are dependencies of the Falklands. I presume that they are not included because of that. That is important given recent statements in Argentina and the importance of those two island groups as well as the Falklands.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Thursday 2nd February 2012 Lords Chamber

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, gave a fair analysis or description of what his amendment is intended to do. The noble and learned Lord, Lord Boyd, said that this might just be an oversight in the original arrangements. The noble Lord, Lord Foulkes, said that it was too small a matter for the Calman commission. I think that quite a significant change is proposed; it is not a small matter at all. The fact that I do not recall any representation on or consideration of it as part of the Calman commission may say something about whether there is widespread support for it.

The noble and learned Lord, Lord Boyd, asked why legislative competence has not gone hand-in-hand with executive competence. I think I am right to say that executive devolution was not present in the 1998 Act, but was subsequently negotiated between the then Scottish Executive—I think that Mr Henry McLeish took a role in that—and the Labour Government. The agreement reached was one of executive devolution. The Labour Government did not think it right at that stage to extend legislative devolution, and that continues to be the position of this Government. The Government are committed to maintaining a GB-wide national rail network which is publicly specified and funded in the public interest but which is provided by the private sector.

It is important to recognise the substantial executive devolved powers which Scottish Ministers have in relation to railways. They include giving general guidance to the Office of Rail Regulation, giving notice of their requirements for the outputs of the rail network in Scotland and the level of public funding available to the Office of Rail Regulation and publishing a Scottish railway strategy. They also have power to designate, let, fund, manage and enforce Scottish franchises and publish a statement of policy on franchising; to set fares; to publish a code of practice protecting the interests of disabled passengers; to appoint a member of the Passengers’ Council; to give financial assistance to any person for the purpose of developing Scottish railways; and to publish freight grants schemes for Scotland. Indeed, they have considerably more powers than that. Of course, the Scottish Executive have also taken considerable initiatives in building and constructing new railways—my noble friend Lord Mar and Kellie is probably a personal beneficiary of the railway from Stirling to Alloa—so substantial powers are already available.

However, as I said, we believe that devolved powers are best exercised within a coherent GB structure, as provided for under the Railways Acts 1993 and 2005. It is essential that the overall regime for the provision of rail passenger services and their regulation remains a reserved matter. It would not be sensible to run the railway in such a way that the Scottish Parliament through legislative devolution could overturn the framework that governs the operation of passenger services in Great Britain as a whole.

The noble and learned Lord raised the question of Wales. I will certainly confirm the position, but the fact that we wish to keep a GB structure means that there is no legislative devolution to the Welsh Assembly.

[Lord Foulkes of Cumnock]

What I am proposing would not overturn the structure of the railways in Great Britain as a whole, as the Minister just said, but is merely filling a little gap in the model, the kind of franchise that can be agreed by the Scottish Executive and the Scottish Parliament. It is a small but important addition and it would not disturb the rest of the railways in the United Kingdom. I hope that he will give it some serious consideration.

[Lord Wallace of Tankerness]

I think it would, if we take it that GB includes Scotland. If Scotland could have a different model from that operating in the rest of Great Britain, that would amount to a material change. We believe that the right balance is in place. It was a balance struck not by this Administration but by the previous one, and not just as part of the original legislation but as one for which specific consideration was given for a Section 30 order. The arrangement struck the right balance and I urge the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

On every previous occasion, I have said that I am really grateful to the Minister for listening carefully to the arguments and being sympathetic, accepting some of the arguments and going away and looking at the amendment. In this case, I am disappointed. I could have gone on at much greater length arguing the case, but I have some concern for my noble friends the eminent lawyers from Scotland and we need to get on to the issue of the Supreme Court. However, this is an important issue. The trade unions feel strongly about it. I know that the Scottish Government would welcome this change. It seemed to have some support in the House of Commons, and would be a coherent arrangement.

The noble Earl, Lord Mar and Kellie, is a very quietly spoken Member of this House and always speaks exceptionally briefly, but in this case his point was really quite a remarkable Exocet. In his brilliant intervention, he said that whereas there could be no public ownership so far as Britain was concerned, in relation to United Kingdom interests, French, German or Dutch railways—all three are publicly owned—would have no problem at all in buying into and taking over this franchise. That is a serious anomaly. It might be best to have some kind of United Kingdom or Scottish structure different from the current ScotRail structure to deal with it. I hope that the Minister will give further consideration to this between now and Report so that we can avoid a rather longer debate then. Nevertheless, I beg leave to withdraw the amendment.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Thursday 26th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, in introducing his amendment, the noble Lord, Lord Foulkes, has given us an opportunity to look at a number of the issues that have arisen with regard to the operation of the electoral system. As my noble friend Lord Steel said, when we were legislating in 1998 it was not really possible to foresee all the implications and consequences of it. Therefore, we have had a useful opportunity to highlight a number of the issues and concerns that have arisen.

As the noble Lord, Lord Foulkes, says, Amendment 1 identifies a lacuna, which, to be fair, I am not sure has been highlighted very much in the past. My noble friend Lord Steel pointed out a variation on that with regard to the role of the Presiding Officer, who gets elected on a list basis as opposed to a constituency basis. Perhaps I may add that Mr George Reid did not stand again so the issue did not arise, whereas Mr Alex Fergusson always indicated that he would seek to stand again as a Conservative. No doubt he would have had to win the nomination of the Galloway Conservatives. It may also be said that it would have been open to my noble friend Lord Steel to have sought again to put his name forward in the Liberal Democrat list for Lothian. Although I did not live in Lothian, had I done so I certainly would have voted for him.

The noble Lord, Lord Foulkes, has raised an important point. No doubt with some work he has found an interesting way to address it. As he properly says, currently a seat vacated by an individual candidate who was returned as a regional Member remains vacant until the next general election. The noble Lord proposes that a poll is held across the whole region to select a new Member. Calculations would ensue upon that—he set that out very clearly and I do not propose to repeat it—to identify who would succeed.

The noble Lord is right to point out that a regional seat vacancy has not yet been caused by an independent Member vacating one. I share his view. I bear no ill will towards Mrs Margo MacDonald for being the only independent Member. Not only do I bear her no ill will but I think that everyone who knows her would take the opportunity to wish her well. My experience is that she has always made a very robust and independent contribution to the deliberations of the Scottish Parliament, and long may that continue, although we do not always agree with her.

We should remember that voters continue to be represented by their constituency MSP and several regional MSPs. It is an important issue, which, given that it is novel, I would wish to look at. If we did anything, it would be important that it commanded consensus among all the parties because it is an important part of our electoral system. To commit from the Dispatch Box without having taken proper soundings among all the parties would be inappropriate, but I hope that we can get an opportunity to take soundings to see whether this gap can be plugged, and plugged suitably to take account of the position of a Presiding Officer as well.

The other amendment moved by the noble Lord, Lord Foulkes, would allow candidates to stand for both constituency and regional polls, and both he and my noble friend Lord Steel indicated some discontent from their own experiences with the current system. The noble Lords, Lord Foulkes and Lord Browne, quoted from the Arbuthnott commission, which stated that it was,

“not convinced that there is any evidence to support the claims made regarding these perceived problems. There is no survey evidence to suggest that dual candidacy is an issue for voters, or a disincentive to their participation in the political process. Few of our consultation responses raised dual candidacy as an issue, nor was it raised spontaneously in our focus groups”.

I am certainly aware from my time in the Scottish Parliament that colleagues representing Orkney would find that not many regional list candidates would bother to get that far, although occasionally it was quite useful to have regional-list MSPs in order to pass on some of the more difficult cases. If a constituent was clearly not satisfied with what you had done on their behalf, and you would be surprised if anyone would be able to satisfy them, it was always useful to have another seven MSPs with whom you could share the burden.

That said, this would be a significant change to the system for electing Members of the Scottish Parliament. The question was raised with regard to Wales—my noble friend Lady Randerson and the noble Lord, Lord Wigley, are in their places. My understanding is that objections were raised by three of the four main political parties in Wales when this was brought forward. The noble Lord, Lord Foulkes, asked me to explain why this position arises. In our debate before we went into Committee I was asked at one stage to explain the policy of the Scottish National Party, and now I am being asked to defend the position that was brought about by the previous Labour Administration, of which the noble Lord, Lord Browne, was a most distinguished member. It actually arose from a proposal in the White Paper, Better Governance for Wales, published in June 2005. It is fair to say that there is no reason why the position in Scotland should be the same as that in Wales. There is an automatic assumption that the systems are always going to be the same, but I think it is reasonable to say that there can be variations tailored to suit particular requirements in different parts of the United Kingdom. I do not think it follows that because Wales has not gone down the route, Scotland should not do so either.

The noble Lord, Lord Foulkes, indicated that a later amendment of his would propose a general review of the electoral system. He will be aware that the Government have stated their intention to consider what has been said about a review of the electoral system in the reports of both the Calman commission and the Arbuthnott commission. There is obviously some support for this in some quarters, but it would be possible to take forward such a review only with the full support of the Scottish Parliament as well. The Committee will be aware that quite a number of consultations are under way. The most crucial one at the moment is on the referendum, and in a moment I will deal with the amendment spoken to by the noble Lord, Lord Browne, on the coincidence of election dates. The Government are committed to looking at the issue of fixed-term Parliaments and whether the Scottish Parliament should move to fixed terms. That will generate another consultation. Perhaps this is not the most appropriate and propitious time to start a review of the electoral system, although I repeat that the Government have indicated their intention to consider a response to both Calman and Arbuthnott on that point.

The amendment moved by the noble Lord, Lord Browne, seeks to allow the Scottish Parliament to move the date for parliamentary elections by up to 12 months either way when it falls in the same year as either an early UK general election or a European Parliament general election, so long as the new date is not within six months of either of those elections. He mentioned that when this was debated in the House of Commons, there was more of a focus on the then quite likely coincidence of a Scottish and a Westminster election in 2015. I moved an amendment during the passage of the Fixed-term Parliaments Bill through your Lordships’ House that changed the date of the next Scottish election so that such a clash would not occur. The Government are already committed to carrying out a detailed assessment of the implications of the two elections coinciding on the same day and to consult on the possibility of moving permanently to five-year terms for the Scottish Parliament. We will make a more detailed announcement of our plans in due course.

If any future consultation is in favour of moving the Scottish Parliament to five-year terms, that would solve the problem of a clash with both scheduled UK elections and European parliamentary elections, as all three will then be on five-year cycles scheduled for different years. That said, there will always be a risk that an early UK general election could reintroduce a clash of dates due to the resetting of the parliamentary timetable. However, if there are concerns about that happening, I hope the noble Lord will agree that that would be an important issue to raise in the context of a consultation on moving to a five-year fixed term for the Scottish Parliament, as we intend to do.

We are committed to considering a change to the length of the term of the Scottish Parliament. It is an appropriate concern for the noble Lord to have raised, but I hope he would agree that this Bill is perhaps not the place to deal with it. However, it is germane to the consultation that is about to take place. That would be the appropriate place in which to consider it. In these circumstances, I hope that noble Lords will not press their amendments.

[Lord Foulkes of Cumnock]

My Lords, as always, that was a really helpful reply from the Minister. We are now getting used to helpful replies from the noble and learned Lord, Lord Wallace, for which I am grateful.

I was hoping that he would answer the question which the noble Lord, Lord Evans of Temple Guiting, did not. I was sure that he would have had exactly the same brief from the excellent civil servants the noble Lord, Lord Evans, had, and that it would not be too difficult for him. As it turned out, it was not, so I am grateful to him for explaining it.

As I said in my introduction to the amendment, I am a little equivocal about it anyway. Perhaps I may return the flattery that I received from my noble friend Lord Browne of Ladyton, whom I thank for his kindness. Now one or two people will ask me why they were not invited to the party, by the way; that is the only problem that I have. My noble friend explained extremely well why we should leave it to the political parties and wait for the promised wider review of the electoral system. I understand also that my right honourable friend Mr Peter Hain is suggesting that Wales should move back to first past the post elections for the Welsh Assembly, which seems like a wonderful idea for those of us who are Neanderthal first past the post supporters—so there is even discussion there. Therefore, I shall not press Amendment 16.

I do feel strongly about Amendment 1, because this matter should be sorted out. I am grateful to the Minister for his reply. As I understood it, he said that he would take the matter away and consult other parties, and that if there was some consensus he would come forward with an amendment on Report. He is nodding, so I am not jumping to conclusions. On that basis, I am quite happy to withdraw my amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the amendment, which was tabled by the noble Lord, Lord Foulkes, would enable the Scottish Parliament’s standing orders to make provision to ensure that the Parliament would have to sit on at least 30 weeks in each calendar year; that it met on at least three days in each week that it sits; and that it does not adjourn for a period of more than 60 consecutive days. In moving the amendment the noble Lord certainly described some frustrations which I can readily identify with, although we never actually served at the same time in the Scottish Parliament. Although it does not relate to a restriction on back-bench time, I remember one Conservative opposition day when Mr Murdo Fraser was the Conservative spokesman on the economy and enterprise and I was the Enterprise Minister, and the Deputy Presiding Officer announced: “A Conservative debate on the future of Scotland's economy. Mr Murdo Fraser, you have seven minutes”. That did not really seem to give justice to the issue in hand.

That said, when dealing with the internal arrangements of the Scottish Parliament, it is important that we remember the words in the White Paper which the previous Government published when Mr Donald Dewar was Secretary of State for Scotland, in 1997. The White Paper said:

“The Government intend the minimum of legislation to establish the Scottish Parliament; and wherever possible to leave the Scottish Parliament to decide for itself what its procedures should be”.

This Government believe that that statement holds as true today as it did in 1997. The Government do not believe that it is appropriate for the United Kingdom Parliament to place restrictions on the freedom of the Scottish Parliament to administer its own affairs. It is now embedded within our UK constitutional arrangements, and our view is that the Scottish Parliament is capable of making its own changes to procedures as it sees fit.

As the noble Lord, Lord Foulkes, mentioned, on 21 December the Standards, Procedures and Public Appointments Committee of the Scottish Parliament published the phase 1 report of its inquiry into the reform of parliamentary business, which is appropriately entitled Remodelling the Parliamentary Week. I do not know whether that happened as a result of or in spite of this amendment, but as the noble Lord indicated when moving the amendment, it certainly was timely. The committee undertook its inquiry into parliamentary business last September in order to review the Parliament’s procedures and recommend areas for improvement and change. As I indicated, it is a phase 1 report. The aim of the inquiry is to give the Scottish Parliament greater scrutiny and responsiveness to emerging issues of importance to the people of Scotland.

The report makes a number of recommendations. My understanding is that they will soon be debated in the Scottish Parliament and, if agreed, implemented after the Easter Recess. Recommendation 1 states,

“that the sitting patterns of the Parliament should be changed to allow committee meetings to take place on Tuesday, Wednesday and Thursday mornings with Chamber business on those afternoons”.

This would mean that the Parliament will sit for three days a week when it is sitting, which would meet part of what the noble Lord’s amendment aims to do. The report does not make any recommendations on the other two parts of the noble Lord’s amendment—to ensure that the Parliament sits on at least 30 weeks of the calendar year, and not to adjourn for a period of more than 60 consecutive days. However, the report concluded that,

“given the need to protect the”—

respect—

“between the Chamber and committee business, and to protect time for engagement with civic Scotland, the amount of time allocated to each of these priorities at present is broadly correct”.

I have however noted that as the inquiry evolved, it also looked at how the likely addition of new powers and responsibilities proposed in this Bill would need to be taken into account, as further timetabling commitments will need to be made to scrutinise the use of these new powers for the Scottish Government and Parliament. As my noble friend Lord Forsyth indicated in a question, where does the responsibility lie? It is for the standing orders of the Scottish Parliament.

My recollection, though, is that there is also a considerable amount of flexibility. When I was a Member of the Scottish Parliament—more recent Members can correct me—although the normal starting time on a Wednesday, with time for reflection, was 2.30 pm, noble Lords will have realised that yesterday the Parliament managed to sit at 1.35 pm in order for the First Minister to make his statement launching his consultation document, no doubt so that he could then hot-foot it to his appointment with the world’s press at 3 pm in the Great Hall at Edinburgh Castle. I recall other occasions—for example, when it was clear that stage three of the Bill was going to take much longer—when there was flexibility to sit earlier or later.

My noble friend Lord Selkirk asked about the recommendation from the Calman commission regarding the separation of time to allow more time at stage three if new amendments come up, which would engage more stakeholders. I indicate to him that that is obviously a matter for the Scottish Parliament, but I will write to him and other Members of the Committee who are participating in our deliberations to give our understanding of the up-to-date position with regard to the Scottish Parliament’s response to that recommendation.

The Scottish Parliament, now 12 or almost 13 years old, is capable of reviewing its own processes, but we are showing our willingness to look at this issue too. I hope that in those circumstances the noble Lord will feel that the amendment is unnecessary and withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, what surprises me is how the Scottish Parliament in its procedures seems more rigid and in its lack of flexibility seems more sclerotic than even this Chamber, let alone the House of Commons. We have already heard examples from the noble Lord, Lord Stephen, about having less than four minutes to contribute to a debate, which are true. We have heard from the noble Lord, Lord Selkirk, about the recommendations regarding later stages being rushed and civic society not having an opportunity to participate fully, and I have appreciated that as well. The Minister himself said that getting everything in when you are given only seven minutes to talk about the economy is a formidable task.

Under the proposals, all that will happen is that they will meet for three days but only for half a day each, so it is still really effectively only a day and a half. That is not a huge amount extra. Of course it is up to the Scottish Parliament, and I am going to withdraw the amendment on that basis, but, speaking as a member of the public in Scotland rather than a nominated Member here, I would expect that the Scottish Parliament might sit rather more than that and spend rather more time discussing some of the major issues that it has to deal with.

Perhaps we should not be saying this because we are non-elected and they all think of us as Neanderthals. I have been around for an awfully long time; I have just had a birthday, as someone diplomatically pointed out earlier. Perhaps we should not be lecturing the Scottish Parliament, but it is just a wee bit strange that it is not lengthening the times of its plenary sessions a little. I shall leave it at that and withdraw.

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend has tabled an amendment on this issue that we will come to. I suspect that the accounting officer must have responsibility in these matters. However, as I sought to indicate, it would be very perverse if the United Kingdom Government invited a response and a consultation and then said that it was beyond the Scottish Parliament’s competence to engage in it. My noble friend raises an important point, and we will come to his amendment, which will be a proper opportunity to look at that in more detail.

As I indicated, in the case made by the noble and learned Lord, Lord Boyd, it is very difficult to draw the line. It does not cure the problem, but it is not beyond the wit to come up with the appropriate Motion to put before the Scottish Parliament. My noble friend Lord Forsyth and the noble and learned Lord, Lord Boyd, made the point that the genie is out of the bottle. Indeed, it was intended as long ago as the original White Paper that there should be an opportunity to debate these reserved matters. In these circumstances, I invite the noble Lord, Lord Foulkes, to withdraw his amendment.

[Lord Foulkes of Cumnock]

I have found this debate very helpful, although it pointed out that my amendment is less than perfect. A lot of interesting issues have been raised, not least that raised most recently by the noble Duke, the Duke of Montrose, and picked up by the noble Lord, Lord Forsyth, because according to this consultative document written submissions have to go to the Elections and Constitutional Development Division at Victoria Quay. I remember asking a number of questions and, no doubt, some MSPs are still asking questions about how many civil servants there are in these divisions dealing with breaking up the United Kingdom. They are spending taxpayers’ money to employ officials to move Alex Salmond’s dream a bit closer. The noble Lord, Lord Forsyth, asked a good question, which needs to be pursued, about how much money is being spent on that and whether it is ultra vires. That is, no doubt, something that we will be taking up on another occasion. It is a very serious matter. It is not just a question of printing the document; it is a question of the civil servants who could be better employed dealing with education, which is pretty ropey and not being dealt with in a perfect manner—let us put it that way—in Scotland at the moment, or with the health service, which is under pressure in Scotland. It would be better to use that money to employ nurses, teachers and policemen rather than these civil servants. I hope the noble Duke, the Duke of Montrose, and the noble Lord, Lord Forsyth, will pursue this important matter.

--- Later in debate ---

[Lord Wallace of Tankerness]

To take the first part of the question, about the law officers, it is part of the Ministerial Code. We have tried to be very careful with regard to the referendum matter, although we may not have managed it all the time, to say, “This is the view of the United Kingdom Government”, because the Ministerial Code says that it may not be disclosed whether or not law officers have been asked for advice, let alone what the advice may be. The Ministerial Code is written in almost, but not quite, identical terms for the Scottish Government, and I would therefore certainly not ask the Scottish Government to produce their legal advice. If they refused to produce it or even to disclose whether they had sought it, that would be totally consistent with the Ministerial Code. However, it is perfectly legitimate to challenge them, if they assert something, about the basis on which they assert it, without asking them if there has been legal advice.

[Lord Foulkes of Cumnock]

I always wonder what is meant by legal advice—legal opinion from a counsel, or whatever. Let us take an example. Let us say that the Lord Advocate went to Glasgow University and gave a learned lecture about the law on the legality of a referendum. Is that legal advice?

[Lord Wallace of Tankerness]

A public lecture is clearly not the same as advice that counsel would give to his or her client. This is probably not the place to debate the pros and cons of the Ministerial Code on legal advice, but legal advice is an opinion of the law officers given on a particular issue to a client department.

--- Later in debate ---

[Lord Foulkes of Cumnock]

Is it not reasonable to assume that if a law officer states a legal opinion in the course of a lecture at Glasgow University, that might just be the same as the legal advice that he gives a Minister in a Government?

[Lord Wallace of Tankerness]

I express the view of the United Kingdom Government; I shall leave it at that. There is good reason why the convention is there, and it has been quite rigidly adhered to by law officers of all Administrations, in Scotland and the United Kingdom generally.

The noble Lord, Lord Stephen, also asked about the legal advice given to a Presiding Officer. The Ministerial Code arrangements for that are clearly not the same. Off the top of my head, I could not say whether that legal advice would be made available or not, or what the response would be if someone wanted to FoI it. It might well be that it is advice given by a lawyer and that there are categories of exemptions for legal advice. It might be a matter that would end up in the courts—I am not going to express a view on it.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the amendment moved by the noble Lord, Lord Foulkes, has generated a considerable amount of discussion on the merits or demerits, as perceived by noble Lords, of the present electoral system for the Scottish Parliament. I declare a non-interest: I was not at the noble Lord’s party, but I can assure him that that has no bearing whatever on the response I will give to his amendment.

He wishes to set up a committee to review the electoral system used to elect Members of the Scottish Parliament. It is tempting to go through the history of how we arrived at the electoral system we have. I shall resist that temptation, other than to say, as was indicated, that it was a compromise. It was obvious at the time and is the case. My noble friend Lord Steel said that there was a commitment to review the system after two elections. I do not remember such a commitment but, nevertheless, the Arbuthnott commission was established jointly, if my memory serves me correctly, by both the Scottish Government and the United Kingdom Government to look at the electoral system. It reported, recommending some revisions to the electoral system. I try to remind myself what they were. The Arbuthnott commission recommended that the mixed-member proportional system we have for elections to the Scottish Parliament should be revised to give voters more choice. It suggested that the closed list should be replaced by an open one, that the boundaries should be based on local authority areas and that a role should be defined for the regional MSP. Self-evidently, these recommendations were not taken forward or implemented.

The commission went on to say that,

“our revised electoral system, if implemented, should be reviewed following the experience of two elections. If further reform is judged necessary, consideration should be given at that time to introducing the single transferable vote for Scottish Parliament elections”.

As I have indicated, that revised system has not been implemented. The Calman commission perhaps read more into that and interpreted it as saying that in any event there would be a further review after two more elections—ie, after 2011. My colleagues who sat with me on the Calman commission will no doubt recall that we did not make any recommendations on the voting system as such because of the very recent Arbuthnott review, but also because there might have been a future review.

As I indicated in an earlier debate, specifically on another aspect of the electoral system and the regional list Member also standing in the constituency, the Government have stated their intention to consider what has been said by a review of the electoral system by both the Calman and Arbuthnott commissions. Indeed, in the Command Paper published alongside the Scotland Bill on St Andrew’s Day 2010, Ministers said that they recognised that the Calman commission,

“considered whether the electoral system for the Scottish Parliament should be reformed or devolved to the Scottish Parliament. Previously, the Arbuthnott Commission had reported in 2006 stating that there should be a review of the electoral system after the 2011 elections to the Scottish Parliament—the Government will consider this recommendation, taking into account the views of the new Scottish Parliament, following the May 2011 elections”.

Clearly, as indicated by the debate we have had this afternoon, there is support in a number of quarters for some form of review of the electoral system. However, the Government believe that they could take forward that review only with the full support of all parties in the Scottish Parliament, along with the benefit of the detailed consideration that this Government are committed to. I take the point made by the noble Baroness, Lady Liddell, that there is perhaps some nervousness about seeking to change the rules after they delivered a result that many of us did not like. That is a fair point. The noble Lord, Lord Browne, also made the important point that there are perhaps more important constitutional issues that we should focus on at this time, not least the fundamental question of Scotland’s place in our United Kingdom. Perhaps now is not the appropriate time to start a review of the electoral system. I have indicated that if there is that consensus to take it forward at some future time, we would be willing to consider it, but this is not the appropriate time to do so.

I think that we all share two views that were expressed earlier. First, I endorse what my noble friend Lord Forsyth said on the standing and importance of a Member of Parliament in his or her community. He said that those of us who have had the privilege to serve as Members of Parliament take very seriously that we represent the entire community and not just those who voted for us. That sense of representation and the privilege that follows those of us who have done that is important. That links into what the noble Lord, Lord McFall, said on the duty of all us to consider how as politicians—elected or not—and as a political system we can re-engage with the people who our laws affect. That will not be done just through a change to an electoral system. There are a whole host of things but it is something we would do well to remember.

For clarification, on the specific point raised by the noble Lord, Lord Foulkes, on Amendment 1, I repeat that we will see what consensus there is about looking at that. In the spirit of what I have said, I hope the noble Lord will withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, we have had a very lively and well informed debate, considering that we started over seven hours ago with the procedural amendment proposed by the noble Lord, Lord Forsyth. It has been a very useful debate.

My noble friend Lady Liddell—I call her Secretary of State emeritus for good reasons—alerted me to the fact that she was going to disagree with me. I did not realise that it would be such a gentle disagreement, because it was a very sensible contribution. She pointed out the genuine argument against my proposal, and I had taken account of it. It is a very genuine argument about timing that we need to be concerned about. There is never a good time for this, and we wish we had done it. My noble friend said that we had missed the boat. I wish we had had a review when we should have had one, but it is too late now. I am glad that the Minister has said that the Government would look at it at an appropriate time. If the noble Lord, Lord Stephen, is correct in what he said in intervening on my noble friend, there is hope that we might get agreement across parties and between this and the Scottish Parliament. That would certainly signal the way forward.

I thank my noble friend Lord Browne for his very positive response. He was a bit hesitant about it, but it was very positive indeed. Someone said that this was not the vehicle to raise this issue, but it was the only vehicle open to me. I accept that it may not be the best way forward. Therefore, because I accept the point made by the Minister in his very helpful reply, I beg leave to withdraw my amendment.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 24th January 2012 Lords Chamber

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

My Lords, the usual channels have agreed that it would be desirable for the Committee-stage debate on the question of a referendum on independence to take place after the Government’s consultation has closed on 9 March. This Motion enables our debates on Clause 10 of the Bill to be taken last, and I suggest that any amendments relating to a referendum are best placed “before Clause 10”. I respectfully encourage noble Lords to table referendum-related amendments as “before Clause 10” rather than to other parts of the Bill. If the House agrees to this Motion, I understand that the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March.

[Lord Foulkes of Cumnock]

My Lords, the Minister will recall that on 10 January I raised this with him when he made the statement and asked that the whole Committee stage be held over until after the consultation. My intention was to ensure that there should be no discussion on the referendum and all aspects of it while the consultation was under way. I therefore thank the Minister very much indeed for finding a solution that enables that to be put into effect.

Scotland: Constitutional Future

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 10th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

I certainly know why my noble friend did not participate, having been a former Presiding Officer. I had some participation in the Scottish elections as an observer, and it is probably right to say that whether or not Mr Salmond was the best of the party leaders to be First Minister seemed to resonate in the debates more than the question of independence. Nevertheless, it has been the policy over many years for the Scottish National Party to have a referendum on independence. That clearly was in its manifesto and the United Kingdom Government have, since May last year, indicated that we recognise that. The timing was certainly not in its manifesto but, as I think my noble friends Lord Forsyth and Lord Steel said, the SNP said that it wanted a referendum on independence and we are trying to ensure that it gets one. What could be fairer than that?

[Lord Foulkes of Cumnock]

My Lords, we should all welcome this decisive action by the Government, which has helped to fill a vacuum that was there in putting the unionist case. However, in the consultative document there is one matter that causes me some doubt. Why is there any question about who should oversee the referendum? Surely, it must be the Electoral Commission that decides the wording of the question, how much money should be spent by each side and all the other aspects. Surely, that does not need consultation.

Perhaps I may ask a practical question in relation to the consideration by this House. Since the consultation finishes on 9 March and we are due to go into Committee on 26 January to consider the Scotland Bill, and since some of us have put down a number of amendments—indeed, I have put down one in relation to Section 30 that is exactly what the Government are proposing—are we really going to go ahead with the Committee stage on 26 January? It will really be a false debate that is taking place when we know that this consultation is under way. It will be going through the motions without any real substance to the debate. I hope that the Government will now consider postponing consideration in Committee as a result of that.

[Lord Wallace of Tankerness]

My Lords, with regard to the noble Lord’s first question, it is very clear on page 16 of the consultation document that the United Kingdom Government believe that the Electoral Commission should oversee any referendum on Scottish independence. Indeed, we have included provision in the draft Section 30 order which is appended to the consultation document. However, we put the question because this is an issue which the Scottish Government have called into question. It is something that should be consulted on, but the UK Government make it very clear that we believe that the body best equipped to oversee this, with a track record of overseeing impartially and fairly, is the Electoral Commission.

With regard to the timing of business, as a non-business manager it is always very difficult to embark into that territory. However, the consultation will be current because there are issues other than the question of the noble Lord’s amendments, and amendments tabled by other noble Lords, with regard to independence. There are other issues to be debated in Committee. Also, it would not necessarily do any harm to air some of the issues—perhaps in more detail, which we have in this consultation—and of course there will still be the Report stage to come back to, by which time we will have had the outcome of the consultation.

Scotland Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 6th September 2011 Lords Chamber

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

My Lords, as your Lordships’ House’s Constitution Committee said,

“The Scotland Bill is a measure of clear constitutional significance”.

Indeed, this Bill will strengthen Scotland’s position within the United Kingdom by further empowering the Scottish Parliament and making it more accountable to the Scottish people. I do not think that I have said anything controversial.

[Lord Foulkes of Cumnock]

The Minister had said something very important: this Bill is a matter of clear constitutional significance, not just to Scotland but to the whole of the United Kingdom. Does he not think that it is a disgrace that we are starting to discuss the Bill at 5.35 pm, and that we are only going to have half a day for the Bill, when in 1998 the Scotland Bill had two days at Second Reading? Is that not outrageous, and are the Government Whips not culpable in relation to that?

Fixed-term Parliaments Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 21st March 2011 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

The noble Lord was not in the Chamber for the whole debate. He knows that I normally give way. Perhaps I can just—

[Lord Foulkes of Cumnock]

The Minister is having difficulty finding his place. I am only trying to help him.

[Lord Wallace of Tankerness]

The noble Lord is always trying to help. I cannot remember who it was in the last debate—it may have been my noble friend Lord Brooke—who said that one should always beware of the help that comes from certain quarters.

One treats with caution foreign comparisons because, as the noble Lord, Lord Howarth, said, there are different circumstances. However, noble Lords mentioned the fact that there are fixed terms of four years in the United States. I happened to note, reading a copy of the Economist from earlier this month, some comment that for the Republican Party people have not yet been clearly identified as taking part in the primaries. That is just two years and two months since the inauguration of President Obama. It is in order for a Government who receive a mandate to be able to fulfil their programme over a planned period and I believe that five years is more likely to assist that than four years.

[Lord Foulkes of Cumnock]

That was not very convincing.

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, will get an opportunity in future to intervene. I am sure that he will make a speech on another set of amendments, to which I shall be more than happy to reply.

At the moment, we have a system that allows up to a maximum of five years. In fact, three of the past five Parliaments have gone for five years. To remove that possibility requires a more compelling argument than we have heard. To move for four years would leave the effective working life of a Parliament and a Government sufficiently curtailed that they would not be able to implement their manifesto provisions. Therefore, I ask the House to support the idea of a five-year fixed term and ask the noble and learned Lord in those circumstances to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I will of course withdraw my amendment at the end of the debate because the purpose of debate at this stage was in order to probe and examine the arguments. The noble and learned Lord’s speech was well delivered but disappointing because it ultimately did not address the central argument being put against him: that the effect is to change our constitution, where there is a five-year maximum but the norm is around four years, to one where the norm becomes five years save in exceptional circumstances.

What everyone around the House was asking him was: why are you making this change if we have to make the judgment on what is in the best interests of good governance in this country? The Minister never answered that question at all but it is at the heart of the debate. This is not a party-political point. The reason that the noble and learned Lord cannot answer the question is that good old Mr Laws, in order to make it clear that the record should not be perverted in any way, has explained why it is five years. I do not know why the noble and learned Lord, who is an honourable man, is weaving and dodging on this. Just say, “They wouldn’t do a deal with us unless we agreed five years”. Do not try and make it something that it is not.

One of the other things that emerged so strongly from this very powerful debate was the sense that the more one talked about it, the more this House felt uneasy about being locked into this straitjacket that the Bill brings. I am in favour of fixed-term Parliaments, in the sense that I can see it to be appropriate that Parliament should in some way endorse what the Prime Minister has decided about an election. However, the Government are saying, “You have to choose between five years and four years”. I detected a real sense of unease around the House on this, but the Government are putting it that we have got to make this choice. Therefore, looking at the arguments, let us see which the best choice is. The noble and learned Lord himself said what the reason is that the Government are doing this.

Now, I cannot find my note. That would give my noble friend Lord Foulkes an opportunity to ask me a question, but I do not think that he wants to ask me any questions. I am sorry about that.

Fixed-term Parliaments Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 1st March 2011 Lords Chamber

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

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Fixed-term Parliaments Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of this Bill. I beg to move that the Bill be now read a second time.

The Fixed-term Parliaments Bill delivers a key strand of the ambitious political and constitutional reform agenda which this Government have pledged to deliver. The importance of these issues of political reform was reflected in the prominence given to them in the campaigning of all the major political parties at last year’s general election. There is now a consensus across the country—dare I say brought to a head by the expenses scandal but which had been forming for some time—that the political system in this country needs to be reinvigorated.

It has been my experience over many years in active politics that the overwhelming majority of people who come into politics—of all parties, and indeed in this House of the Cross Benches—do so out of motivation for public service. Nevertheless, sadly, politics has increasingly come to be perceived to have become more about protecting vested interests than about political representation of the electorate.

Let us not forget the backdrop to many previous general elections under the current arrangements when it was often widely anticipated that the election would be held at some stage during the third or fourth year of Parliament and the country was left on tenterhooks. On those occasions, the question was when the most advantageous date to call an election would be. From our own memories, I am sure we can think of Conservative or Labour Prime Ministers who made that calculation. Regrettably for my part, no Liberal Prime Minister in living memory has been in a position to make that calculation. However, the question is: advantageous to whom?

The question that the Prime Minister of the day considers then is not necessarily whether that date would be most advantageous to the country or the electorate; it is, more often than not, whether that date would be most advantageous to the incumbent party of government seeking re-election. This is an example of what people have grown tired of: a political system geared in favour of the Executive and used for partisan advantage. Fixed-term Parliaments will provide stability as it will be known from the beginning of the Parliament how long it can be expected to last. We already have fixed-terms for the devolved institutions, local government and the European Parliament.

We are not saying in the Bill that all Parliaments must last for five years no matter what happens, but there must be a significant and pressing reason for early Dissolution, and it is right that the other place, whose support is essential for the continuation of any Government, should be able decide when that should occur. This should not be a decision for the Government to take for themselves. That is why the Bill provides that Parliament should ordinarily last five years. It transfers from the Prime Minister to the House of Commons the power to bring about an early general election.

I am grateful to the noble Baroness, Lady Jay, and members of the Constitution Committee of this House for the careful scrutiny that they have given the Bill. As a former member of that committee, I know the important role that it plays and I believe that its report will aid our debates during the Bill’s passage through your Lordships’ House.

I acknowledge that most of those on the committee decided that the case had not been conclusively established for fixed-terms. However, let us not forget that this debate has been going on for some considerable time. As I noted, fixed-terms already exist for our devolved institutions, local authorities and the European Parliament. Moreover, there were commitments in the 2010 manifestos of the Labour Party and my own party, the Liberal Democrats, to establish fixed-terms for the UK.

I was pleased to note the committee’s endorsement of significant elements of the Government’s proposals, particularly the two mechanisms in Clause 2 that provide for an early general election to be held. It seems to me that the committee has said that, if the principle of fixed-terms were accepted—I have acknowledged that that is not what it said—this Bill sets out very much the way in which one would seek to achieve that principle. The Government have responded to the committee’s report in a Command Paper, copies of which are available in the Printed Paper Office.

The Bill is modest in size. It has only five clauses and one schedule, but we can be in no doubt that its effect would be significant. Clause 1 relates to polling days for parliamentary general elections. It sets out that the polling day for the next parliamentary general election will be 7 May 2015. Each subsequent parliamentary general election will be expected to occur on the first Thursday in May every five years.

As I said earlier, we of course recognise that there may be exceptional circumstances in which it would not be appropriate for Parliament to continue to run for its full fixed-term—I will come to the arrangements for those shortly. When such an early election is called, however, Clause 1(4) clarifies that Parliament will run for five years from the preceding first Thursday in May. This provision has been endorsed by the Constitution Committee and will provide that a Government elected at an early general election will have a full term, allowing them to deliver a full legislative programme.

[Lord Foulkes of Cumnock]

Is the Minister now able to answer a question that he was not able to answer at the informal meeting yesterday? Why was the month of May chosen when more general elections have taken place in October in the past? Local elections are normally in May and general elections in October.

[Lord Wallace of Tankerness]

I think the last October general election was in 1974, which was some 36 years ago. I have no doubt that the noble Lord remembers it well. However, it is difficult to say that they have generally been held in October when the last one held in October was over a third of a century ago. In more recent times, elections have been held in May. In 2001, it would have been held in May but for the outbreak of foot and mouth disease. It was held in June. This present Parliament was elected in May, and the natural course would be to go through to May 2015 if it was to have its full five years. That is why May was proposed in this Bill.

Clause 1 includes a power for the Prime Minister, by affirmative order, to vary the date of the polling day by up to two months either before or after the scheduled polling day. This power is intended to accommodate short-term crises or other conditions that might make it inappropriate to hold the election on the scheduled date: for example, a repeat of the foot and mouth crisis, which led to the postponement of the local elections in 2001. Although the general election was within the five years and nothing was needed to change the date, that is the kind of circumstance that is anticipated.

This is where your Lordships’ House will have an important role to play in the procedures set out in the Bill. Any instrument made under the Bill to vary the date of a scheduled election by up to two months will require the agreement of your Lordships’ House, thus affirming this House’s role as guardian of that particular principle of the constitution. It reflects an existing provision of the Parliament Acts: that your Lordships’ consent is required for any Bill that extends the maximum life of a Parliament beyond five years.

I am grateful to the noble Baroness, Lady Thomas, and the members of the Delegated Powers and Regulatory Reform Committee for its report on this Bill. I was glad to see that the committee felt that the delegated power taken in Clause 1 of the Bill was justified. I can assure the noble Baroness, her committee and indeed the House that we will give careful consideration to the report and its recommendations and I will respond very shortly.

There has been much debate over whether the length of Parliaments should be four years or five. It is not an exact science; it is a question of judgment. However, all arguments considered, the Government remain of the strong view that five years—the current maximum set out by the Parliament Act 1911 and more recently the norm—is the right length for a Parliament. Three of the last five Parliaments have lasted almost five years, and 44 countries out of 77 in the Inter-Parliamentary Union have five-year terms for their lower house, with only 26 having four-year terms. Indeed, there are five-year fixed parliamentary terms in Italy, South Africa, France and Luxembourg, and there is a five-year non-fixed term in Ireland and India.

My right honourable friend the Deputy Prime Minister has spoken about the need for Governments to work for the long-term advantage of the country rather than simply to pursue policies for the short term. Not only will the five-year fixed-term help facilitate better planning within government, but it can help facilitate better scrutiny of the Government by Parliament. With a fixed term, Parliament will be able to plan better their scrutiny of the Government’s legislative programme, and Select Committees will have more certainty when planning their inquiries. Indeed, this point was recognised by the Political and Constitutional Reform Committee in the other place.

Noble Lords might well argue that the recent experience of five-year Parliaments is that the Government are unpopular and have had limited ability to make use of the extra fifth year. However, I contend that that occurs in the current political framework and would not be a foretaste of what would happen under this Bill. The five-year Parliaments of recent years have been a somewhat self-selecting sample; they existed only because the Government in question did not believe they could win an election at the end of four years and were possibly waiting for something to turn up. Of course, in these circumstances, the Government tend to be tired and lacking in ideas. However, under this Bill, it will be possible for a Government to plan properly for a full five-year term.

There will be more certainty with fixed terms, and, with our proposed change to begin the Sessions of Parliament in May, the last Session would be a full one. As long as the Government retained the confidence of the other place, they would be able to deliver a full programme in their fifth Session. We would not have a situation in which the fifth Session began perhaps in the last week in November and by the last week in March we were engaged in a wash-up process. The Government can plan for the longer term, knowing that they will have time not only to introduce measures but to see them to fruition and begin to produce results.

I anticipate, too, that it might be argued that this Bill is part of some plot to reduce Parliament’s power over the Executive by extending the period between elections. However, we are not extending the potential period between elections. That remains, as it is now, five years. However, the certainty of five years means that not only the Government but Parliament can plan properly. It can plan its scrutiny programme and Select Committees can plan their inquiries. It will lead to more and better scrutiny, not less.

I turn to the interaction of the proposals in the Bill and the timetable for elections to the devolved institutions: an issue that has led to some considerable discussion and debate, not to say controversy. Under the proposals in this Bill and the respective devolution Acts, elections to the House of Commons and the devolved institutions will coincide every 20 years. Concern has been expressed about that. I ask your Lordships to recognise that this Bill has not brought about the possibility that the elections to the House of Commons and the devolved institutions coincide. It was inevitable at some point under the existing variable arrangements for Parliament that that could happen. The Bill has merely given us prior notification and an opportunity to consider the issue.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 8th February 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords and noble and learned Lords who have participated in this important debate. It has been a good and helpful debate, with views forcefully expressed but set out in a measured way. There is some agreement that we want to find the best way to achieve effective consultation on Boundary Commission proposals. However, it has also become clear—I made this point when I opened the debate and it was reflected on by my noble friend Lord Faulks—that the issue very much represents a choice of culture. Will we have what is essentially the old system of the local public inquiry—albeit with some timetable improvements; and I acknowledge the efforts made there—or a change of culture towards the public hearings proposed in the Government’s amendment? My noble friend Lord Faulks indicated that our proposal goes with the grain of making arrangements for similar matters to be dealt with.

The process we have set out combines written representations with a new public hearing stage aimed at providing for real public engagement, and involves a counter-representation stage to allow for scrutiny. We believe that that adds up to a comprehensive and rigorous process which learns the lessons of previous reviews and allows us to achieve the key principles of the Bill, whereby constituencies will become more equal and fair and their representation in the other place will be reflected by the time of the 2015 election.

It was suggested by the noble and learned Lords, Lord Falconer of Thoroton and Lord Woolf, that the representations made at an oral hearing would disappear into the ether. However, it is it is important to recall that not only after the end of the period will there still be an opportunity for follow-up representations, but, in response to amendments in Committee from the noble Lord, Lord Lipsey, there will be an opportunity for counter-representations to be made. It is a requirement set out in the amendment that the Boundary Commission shall give consideration not only to the written representations and counter-representations, but to the record of those who engage in the oral hearings.

The process that we propose is a considerable departure from the original proposals in the Bill. That was acknowledged by the noble and learned Lord, Lord Woolf. The Government have listened to the reasonable concerns on the importance of public engagement, not least at the first review under the new rules. We have listened to the argument that our process could be strengthened if there was an opportunity for the scrutiny of arguments put forward by others. We have shown that we are willing to move in the interests of a better outcome, but not at the cost of the key principles of the Bill. That cost would include delays that could undermine those principles.

The opposition proposals—whether those of the noble and learned Lord, Lord Falconer of Thoroton, or the suggested changes to the Government’s amendments—would, in effect, restore the existing inquiry process. They require a legally qualified chair and a report back to the commissions by the legally qualified person—we have had exchanges on whether there are to be two decisions or two determinations. The opposition proposals would remove the time limit on the number of days an inquiry will last. Those old-style inquiries would take place after the submission of written evidence, as they do now—albeit for a slightly longer period—in order that the parties can send their lawyers and that their legally qualified person in the chair can cross-examine them.

Even the noble and learned Lords among us can imagine that that process is unlikely to engage the general public at large. The work of academics who have researched these issues in depth means that we do not have to imagine what that would mean, because the evidence is in their reports. An in-depth study by Ron Johnston, David Rossiter and Charles Pattie in 2008 stated:

“It would be a major error to assume that the consultation process largely involves the general public having its say on the recommendations. The entire procedure is dominated—in influence and outcome if not in terms of the numbers of representations and petitions (many stimulated by the main actors)—by the political parties”.

There has been a flavour of the political parties’ heavy engagement.

It has also been said that somehow or other the public inquiry system assuages pent-up local demand. Before I came to the Chamber this afternoon, I looked at the last Boundary Commission review of the constituencies for the Scottish Parliament. In the case of East Lothian, Midlothian and the Scottish Borders, the inquiry process, which led to a recommendation from the reporter, who I think was Sheriff Edward Bowen QC, was completely and utterly dismissed by the Boundary Commission. I am not sure what that would do to promote public confidence in the system proposed by the Opposition.

[Lord Foulkes of Cumnock]

Will the Minister confirm that there was no application for a judicial hearing in relation to that? Everyone accepted it.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 7th February 2011 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, has an amendment later that will give us an opportunity to discuss the linkage of polls. I repeat what I said in Committee last week: it is certainly intended that the votes for the Scottish parliamentary election will take precedence over the counting of the votes in the referendum. Inevitably, there will have to be verification, because Scottish election votes may be found in ballot boxes intended for the referendum. It must be for returning officers and counting officers to determine their own arrangements, because issues of tiredness have come up in the past. It is certainly anticipated that we will not have to wait until Saturday for a result.

My noble friend Lord Forsyth expressed concern about the forming of an Administration. I have been involved twice in forming an Administration after a Scottish election. If the result had been known on the Saturday or even the Sunday, it would not have made much difference. However, that is by the way, because the intention is that the counting of votes for the Scottish election will take priority over the referendum.

--- Later in debate ---

[Lord Wallace of Tankerness]

I will add that they should also be delivered accurately. Therefore, this is a matter for the returning officers and counting officers, who are best placed to judge whether counting should start immediately or the following morning.

[Lord Foulkes of Cumnock]

For once, I agree 100 per cent with the noble Lord, Lord Forsyth—the noble Lord, Lord Baker, looks very worried. I draw the attention of the noble Lord, Lord Forsyth, to Amendment 5F on page 3 of the revised Marshalled List. If the Government were willing to accept the amendment—or even better, if the Committee were to accept it—that would deal with what the noble Lord, Lord Forsyth, wants, for exactly the reasons that he put forward, which are sound and sensible.

[Lord Wallace of Tankerness]

My Lords, we will return to this issue when we debate Amendment 5F. I look forward to the contributions of the noble Lord, Lord Foulkes, when he moves it, and of my noble friend, Lord Forsyth. We will debate this more fully at a more appropriate time.

--- Later in debate ---

[Lord Foulkes of Cumnock]

Or just one, which my noble friend Lord Grocott and I would prefer. Yet again last week, in spite of the fact that this House has said it on a number of occasions and other people have said it, the Liberal Democrats—and I absolve the Tories of this—were saying, and the Guardian was repeating, that everyone elected under the system being proposed will have the support of 50 per cent of their constituents. That is manifestly untrue, and it is about time that the Liberal Democrats stopped spreading these lies.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Campbell-Savours, has moved an amendment which would change the referendum question to ask voters whether the supplementary vote system should be used instead of first past the post rather than the alternative vote system. It will come as no surprise, because it is the content of the Bill, that the Government are committed to providing for a referendum to be held on whether the alternative vote system should be introduced for elections for the other place. We had these debates on a number of occasions in Committee.

I know the noble Lord, Lord Campbell-Savours, has a degree of authorship of the supplementary system that is used in the London mayoral election. We have heard on a number of occasions his concern about the alternative vote provisions in the Bill. It is always very invidious to say how people might hypothetically have voted when that was not the system that was used. The comments made by the noble Lord and the noble Lord, Lord Foulkes, were quite legitimate points to be made in the referendum campaign, when the parties and the different participants will take their own view about the merits and demerits of the alternative vote system. I can confirm that under the provisions in the Bill, which the noble Lord, Lord Foulkes, accurately described, voters may express a preference for as few or as many candidates as they wish or, indeed, for one. As the noble Lord rightly said, that could mathematically mean that not all Members elected to the other place had secured 50 per cent. As we debated last week when we were considering the material now on the website of the Electoral Commission for discussion, which will be sent out to stimulate interest and to explain the proposition before the voters on referendum day, that point is made in the material that it will be putting out.

Clearly the noble Lord’s amendment to adopt the supplement vote system will limit voters’ choice in expressing preferences for candidates standing at the election as they would be able to express a preference for one or two candidates only. The Government are not persuaded that the AV provisions in the Bill should limit the number of preferences that any voter may express at an election. We consider that not limiting the number of preferences that a voter may express under the alternative vote will enable MPs to be elected with a broader level of support, although I make the qualification that as you can cut off and do not need to vote for everyone, it will not necessarily mean that an MP will achieve 50 per cent.

As my noble friend Lord Strathclyde explained in Committee, the Government believe that the optional preferential form of the alternative vote is the right form of AV to be put before the people. For elections to the House of Commons, voters will be able to express preferences and should be able to express as many or as few preferences as they choose. They should not have their ability to express preferences constrained in the way proposed in the noble Lord’s amendment. The optional preference form of AV avoids voters being forced to vote positively for political parties that might be distasteful to them, such as those on the extremes of politics. There is no indication in the amendment about how in detail the supplementary vote system would work. The attraction of the Bill as it stands is that for all the arguments that might take place about how AV works, the Bill sets out that process in Clause 9 and Schedule 10. Questions about how AV works can be resolved by looking at the Bill. That would not be the case with the amendment, which lacks clarity. I therefore urge the noble Lord to withdraw it.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 1st February 2011 Lords Chamber

[Lord Wallace of Tankerness]

The answer to that, as the noble Lord, Lord Rooker, pointed out, is that it takes a bit longer and more pages to describe the alternative vote than it does to describe the first-past-the-post system. Although that is an innovative and ingenious way to try to overcome the problem, I think that a practical issue is associated with it.

As my noble friend the Leader of the House said, the Electoral Commission has already published the proposed content of its information leaflets on its website. It is keen to have comments on the draft. If noble Lords wish to make representations about that information, they can of course send their comments to the Electoral Commission before the leaflets are published.

[Lord Foulkes of Cumnock]

Can the Minister help me on one issue? He knows as well as I do that before elections, party election broadcasts replace party political broadcasts. Will there be referendum broadcasts for the yes and no campaigns? Will that be part of the arrangements for the referendum?

[Lord Wallace of Tankerness]

Off the top of my head—I think I know the answer but I cannot be certain—I think that the answer is yes. I know that parties cannot use their election broadcasts for the referendum campaign. I think that that was decided in a case prior to the Scottish referendum in 1979. I think that there will be broadcasts, but perhaps I can confirm that in the course of my remarks.

I am mindful that all public bodies need to be held properly accountable for what they do, but we need to strike a sensible balance. It seems to me that there are dangers in introducing a role for a parliamentary committee in approving the operational work of the commission, as is envisaged under the amendment, rather than monitoring and commenting on its performance, as is the case established under the PPERA. It must also be remembered that the Speaker's Committee, however august, comprises politicians. Irrespective of how carefully we might think that the committee would use its power—I have no reason to think that it would do other than that—perception can be important in these matters. There might be concern if the Electoral Commission—which, I think, everyone agrees, has a reputation for its impartiality—had in this crucial area to have its work vetted or approved by a body comprising politicians.

Furthermore, building in an extra procedural hurdle before the commission could issue the clarifying information to help voters could be difficult if confusion about the systems was allowed to take root and hares were allowed to run which could not be corrected promptly because of the need to refer. We must also bear in mind that the commission already issues a lot of useful guidance to voters, parties, candidates and electoral administrators about the working of our system. That has worked well. I am not aware of any significant concerns about it.

I confirm that my instinctive answer was right: there will be referendum broadcasts for the designated campaigns.

It is the commission's responsibility to decide how, and whether, to provide that information. As I said, I think it is widely accepted across the Committee that the commission is well established as a neutral, independent body. I am confident that it does not need the extra provision which the amendment would impose. There is a further opportunity for noble Lords to comment on the draft. I therefore ask the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am grateful to the noble Lord, Lord Foulkes, for bringing this amendment forward. He and I well know that the matter has been raised by the Law Society of Scotland. Indeed, I tabled a similar amendment in the previous Parliament.

The amendment would amend the provisions so that a challenge brought through judicial review in Scotland can be launched if its purposes are on the same basis as proceedings elsewhere. In Scotland, there are two separate tests for bringing judicial review, in that a petitioner has to demonstrate both title and interest, whereas in England, Wales and Northern Ireland there is a single test of interest alone.

The noble Lord, Lord Foulkes, also mentioned the recommendation made by Lord Gill, the Lord Justice Clerk, in his Report of the Scottish Civil Courts Review. However, I am concerned that because of the way in which this amendment is drafted, it will not have the desired effect. By stating that,

“the petitioner’s interest alone shall be sufficient to enable a petition to be lodged”,

it has almost gone too far and would effectively disapply the need to establish all other matters when considering a case for judicial review—including, indeed, whether there is sufficient legal grounds for a challenge.

The other, perhaps more practical, point is that it is difficult to see what the practical effect would be, as we think it is likely that the Scottish courts would entertain a judicial review from any elector entitled to vote at the referendum or at parliamentary elections and any permitted participant. By their very nature, they have an interest—they were taking part in the election.

We should be mindful of the fact that this issue goes wider than the referendum alone. It raises important issues about the nature of judicial review in Scotland, not least those flowing from Lord Gill’s report, and the circumstances in which they should be permitted to raise petitions for judicial review. That is an important issue. It is one that undoubtedly is receiving detailed consideration, not least by the Scottish Government and the Scottish Parliament. It would not be helpful if this Bill somehow tried to pre-empt it on an ad hoc basis, particularly, as I have indicated, we believe that an elector in Scotland would be able to raise a petition.

[Lord Foulkes of Cumnock]

On the key point, is the Minister saying that because of the recommendation of Lord Gill, he believes that a petitioner in Scotland could raise it on interest alone, without any title, so it would in effect be the same as in England? I am not quite clear.

[Lord Wallace of Tankerness]

My Lords, if the noble Lord will bear with me, the Lord Justice Clerk, Lord Gill, recommends in his report that the separate test of title and interest be replaced by a single test, that test being where the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings. That is not specific to this referendum. We have a quite important change in the law of judicial review in Scotland anyway and it goes along with numerous other recommendations on civil procedure in the Scottish courts. These matters are, I am aware, under consideration, but it would not be appropriate in this Bill to do it on a one-off basis, particularly in circumstances where we believe that being a participant in the referendum, one would qualify to challenge, if indeed that situation should ever arise.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am certainly more than happy to write to the noble Lord on that point. I do not think that I need to elaborate on what I said to him before. I want to indicate briefly that Schedule 1 makes provision about the key aspects of the conduct of the referendum and the regulation of the referendum campaign. The approach of the Government in doing this has really been to replicate the provisions that are made for parliamentary elections, where they are appropriate. However, there are some areas where we need to make specific provision to tailor-make the provisions for this referendum. On the campaign spending and funding framework already in place for referendums, what there is under the PPERA will generally apply. I commend this schedule to the Committee inasmuch as it tries to replicate, wherever appropriate, the rules which are now well tried and tested.

[Lord Foulkes of Cumnock]

I am grateful to the Minister and, particularly, to my noble and learned friend Lord Falconer for their exchange, which helped to clarify the situation. I was surprised because this amendment was in fact drafted by our mutual friend Michael Clancy, who has done a lot of these before and understands parliamentary drafting very well. However, I was particularly grateful for the intervention from the noble Lord, Lord Neill, on the Cross Benches, and for the Minister’s response: that he will look at this again to see whether there is a way to achieve it so that Scots and English people will have the same rights guaranteed on both sides of the border, without any court having to make a decision and without creating a precedent which might cause any difficulties for other aspects of judicial review. On the basis that the Minister has been very helpful in giving me that assurance, I beg leave to withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 31st January 2011 Lords Chamber

[Lord Foulkes of Cumnock]

I support what my noble friend Lord Howarth has said. Following on from what the Minister said on the briefing about the Boundary Commissions working together, as he knows only too well I am strongly in favour of devolution—as he is—and, where appropriate, different solutions north and south of the border. I am also not too keen on Governments giving directives—particularly this Government, but that is another story.

However, given that we are talking about elections in the United Kingdom, some degree of consistency and guidance is important. Earlier today I read the words of Bruce Millan, one of the greatest Secretaries of State for Scotland, who many noble Lords will recall with great affection. When he was shadow Secretary of State in a debate in the other place—this may seem a long time ago but it is still relevant today—he said:

“On Tuesday I drew attention to the fact that there were differences in approach between the English, Scottish and Welsh Boundary Commissions—for example, with regard to overall numbers. The Scottish commission uniquely among the three started with a pre-determined total and worked from that. Subsequently that total had to be adjusted. I thought that it was wrong in principle that the commission should start with a predetermined total. That approach is not compatible with what happened in England and Wales. It is worrying that there are different approaches to the interpretation of the same rules in the three countries. This is another argument for looking again at the rules.

There were differences in approach by the three commissions to rule 6—the geographical consideration rule. There were also differences in approach in practical terms as to what the commissions did about movements of population after the enumeration date. It is not clear that any commission is entitled to take into account any change in population beyond the enumeration date. The English commission believes that it is not empowered to take any movement of population into account. That has given rise to considerable dissatisfaction south of the border, because England’s enumeration date was 1976. There have been tremendous movements in population since then. The Scottish commission took a more relaxed view. Whether it was entitled to do so is a matter of considerable argument. That should be looked at”.—[Official Report, Commons, 3/3/83; col. 428.]

That points to some of the problems that can arise if there is not close co-operation between the four Boundary Commissions under what I think is the general benevolent guidance of the Government. I know that the Minister cannot give an instant answer, but I hope that he will take this away and look at it to see whether some more guidance should be given, particularly if the rigid figure of 600 is going to be adhered to. I imagine that that is going to make it very difficult for the Scottish, English, Welsh and Northern Irish Boundary Commissions to work in similar ways. They are working necessarily to different totals within different geographical areas, and some guidance from the Minister might be appropriate. I am not expecting an instant answer, but it is worth while having a look at it.

[Lord Wallace of Tankerness]

My Lords, perhaps I may first respond to the noble Lord, Lord Howarth of Newport. I hope he would not expect the Government to give directions to the Boundary Commissions, and I indicate that the Bill provides that the Boundary Commissions,

“shall take such steps as they see fit to inform people in the constituency—

(a) of the effect of the proposed recommendations and”—

to ensure that—

“a copy of the recommendations is open to inspection at a specified place within the constituency”—

that is unless, of course, no change is recommended for the constituency—

“(b) that representations with respect to the proposed recommendations may be made to the Commission during a specified period of 12 weeks”.

The provisions of this Bill are a bit different from those of the past. The 1986 legislation made a stipulation with regard to newspaper advertisements, and that is not in this Bill. We are leaving that to the discretion of the Boundary Commission. When I was replying to an amendment moved on Wednesday by the noble Lord, Lord Kennedy of Southwark, who was talking about online advertising, I indicated that again it was a matter for the Boundary Commissions. However, as there had been use of online advertising for the purposes of the Boundary Commissions’ work during the last general review, I have every confidence that it will be done again. I am sure there is no way in which the Boundary Commission is going to have a perfunctory regard in ensuring that the proposals are widely publicised. All parts of the House—it should be a matter not just for Government but for Parliament—should be confident that the commissions will continue to adhere to the highest standards that they have shown in the past, irrespective of seeking representations that will strengthen their recommendations. There is a high level of expectation there, and I do not think there has ever been any suggestion that the Boundary Commissions have not lived up to that.

With regard to the noble Lord, Lord Foulkes—

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 24th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

I listened to the noble Lord’s speech, and he gave the very clear impression that that was challenging in the extreme. As my noble friend said, there were three local authorities in the constituency that he represented. The constituency that I represented contained two local authorities. On the basis of the figures that I gave in a previous debate, by my calculation 187 Members of Parliament represent constituencies that have more than one metropolitan or non-metropolitan district boundary. I believe that it is more than possible to do an adequate job of representing one's constituents where there is more than one local authority in a constituency.

We do not believe that we should be tying the hands of the Boundary Commission in a way that prevents it from recommending the best solutions for electors simply for the convenience of Members of the other place. I take the point made by the noble Lord, Lord Foulkes, and the noble Baronesses, Lady Hughes and Lady Farrington, about the importance of local constituency parties. They of course have an important role in oiling the wheels of our democracy, but I do not think that their interests should be elevated above those of individual constituents.

I do not want to follow down the path of anecdotage, but the noble Lord, Lord Foulkes, mentioned the number of party fundraising events at this time in Scotland that are focused on Burns suppers. I had the great pleasure of attending a Liberal Democrat Burns supper in South Edinburgh, which has already reorganised itself to take account of the changes in the boundaries and the disjunction between Scottish parliamentary boundaries and Westminster boundaries. I do not really want to hear more of the Burns supper adventures of the noble Lord, Lord Foulkes.

[Lord Foulkes of Cumnock]

I just wondered whether it was in the Edinburgh South UK parliamentary constituency or the Edinburgh Southern Scottish parliamentary constituency.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Thursday 20th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I come now to address the series of amendments that have been spoken to or moved. I agree with the noble and learned Lord, Lord Falconer of Thoroton, about which amendments we are dealing with, except to say that the initial amendment, which was moved by my noble friend Lord Brooke of Sutton Mandeville, was Amendment 66C. Linked with that was the amendment that relates to the exceptions or the preserved constituencies, to which the noble and learned Lord devoted most of his remarks. However, we are on common ground as to which amendments we are discussing.

On numerous occasions during the Committee stage of this Bill, I have spoken about the principles behind the Government’s approach and our belief in equal votes—one vote, one value. As my noble friend Lord Tyler indicated, that is the principle and it is important that the exceptions to it are limited. I shall therefore deal with the exceptions first. They are the constituencies of Orkney and Shetland and what used to be referred to as the Western Isles—I am not a Gaelic speaker and I do not want to disgrace the Gaelic language by even attempting the Gaelic name.

The noble Lord, Lord Grocott, echoed by the noble and learned Lord, Lord Falconer, again raised the question of hybridity. Noble Lords who were present at the outset of these debates, before Second Reading, will recall that that matter was thoroughly debated in this House. The Clerks gave the advice that the Bill was not hybrid and the House had its say on the matter, rejecting the argument, however eloquently and persuasively put by the noble and learned Lord, Lord Falconer, that the Bill was hybrid.

The noble and learned Lord asked why the Bill makes the exceptions of the two preserved constituencies. For anyone who has looked at a map, the reason is probably blindingly obvious. The constituencies are at the most extreme parts of our United Kingdom. If anyone has any doubt, let me say that Orkney and Shetland are at the very top and go far north; they are not in a box somewhere in the Moray Firth—my former constituents used to be very irritated when it looked as though the distance between Shetland and Aberdeen was very small. Indeed, the fact that they are so far away is a factor. We are talking not just about geography but about extreme geography, where the dispersed island groups cannot readily be combined with the mainland. It takes 12 hours by ferry from Lerwick in Shetland to Aberdeen on the Scottish mainland. By any stretch of the imagination, that situation is extreme.

We could contrast that with other islands that are already combined with mainland constituencies. Argyll and Bute is one example; it comprises a substantial mainland area together with islands. The constituency of St Ives, which is represented by my honourable friend Mr Andrew George, includes the Scilly Isles. The constituency of, I think, Cunninghame North, which includes Arran and, I suspect, the Cumbraes, is represented by—I am sorry, I cannot remember.

[Lord Foulkes of Cumnock]

It is represented by Miss Katy Clark.

[Lord Wallace of Tankerness]

I have no reason to doubt that. These are examples of island communities which are linked to and can readily be combined with the mainland.

We took extreme geographical circumstances into account. If the preserved constituencies were linked and combined with part of the mainland, their surface area would almost inevitably be larger than that of the largest current constituency. In the course of our debates in Committee, concerns have been expressed by many noble Lords about the distances which people have to travel. I recall in one debate—I cannot remember which of the many—someone talking about the possibility of having to drive for two-and-a-half hours to get to a place. In Orkney and Shetland, it can require two-and-a-half hours even to get to one part of Orkney, let alone travel from Orkney to Shetland—you can travel from Orkney to Shetland by plane, but you then have to go very much further again.

--- Later in debate ---

[Lord Wallace of Tankerness]

I was not in the front line, but I have no recollection of these specific seats ever being mentioned in the coalition talks during the famous five days in May. If they were mentioned, they were not mentioned in my hearing in any of those negotiations. I have no reason to believe that they were mentioned. They are self-evidently at the extreme end of geographical considerations.

[Lord Foulkes of Cumnock]

Then to whom can we give the credit for making these suggestions? Who originally came up with these suggestions for preserved constituencies and when?

[Lord Wallace of Tankerness]

Obviously discussions took place in the preparation of this Bill. I honestly cannot think of who took the final decision, no more than anyone else here. Who was involved in which part of which Bill—

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 19th January 2011 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, the Minister’s early intervention was very helpful because a lot of the things that he said answered questions that I had. I can therefore be relatively brief. I hear the sighs of relief. I wish to make two points. First, we have been discussing two issues. One is underregistration. Every party represented in this House and in the other House thinks that that is a bad thing. Every party wants to increase representation and encourage local authorities to get as many people on to the register as possible. That is in all our interests and is something we should all be doing. We should accept the good faith of other parties in wishing to do that. However—this is my second point—what we are talking about today, as my noble friend Lord Campbell-Savours said, is not that issue at all. What we are talking about today is the best way for the Boundary Commission to make a judgment about the boundaries and the most accurate figures that it can use.

I have made my next point on a couple of previous occasions, much to the Minister’s annoyance. I have put down Amendment 67C, which says that we should use the number of people eligible to vote rather than those on the register. Questions have been asked about the accuracy of various figures. I and other Members have argued for a figure based on population. The Minister criticised that on the basis that it was an estimate. I have been talking to wiser colleagues than me about estimates. We pay taxes based on estimates. The Barnett formula gives money to Scotland and Wales based on estimates. As my noble friend Lord Desai said to me, the retail prices index, on which our pensions and other benefits are calculated, is based on an estimate. So there is nothing inherently wrong with estimates. As my noble friend Lord Desai also said to me, many things which cannot be measured scientifically are based on estimates. Despite the criticism that we have heard of the population estimate, it is relatively accurate. As has been said, it is fortuitous that the census is taking place in 2011. Therefore, we will get a very accurate measure—not an estimate—of the population, and those over 18, in 2011.

The Minister said that the register of electors is absolutely accurate but that is not the case. As I regularly used to find out when I went round canvassing, a lot of people on the register are dead. I understand that some of them used to vote in Northern Ireland, and not just in Northern Ireland. Of course, people move from one constituency to another and some of us are registered in more than one constituency for different reasons, so there are variations there. However, I argue that the biggest variation occurs—we know this as we have discussed percentages in previous debates—in the percentage of those eligible to vote who are actually registered in each constituency around the country. In some it is only 60 per cent, in others it is nearer 90 per cent, even towards 100 per cent. That is where the major imbalance occurs and that is why using the number of those eligible to vote is far fairer—“fairer” is the relevant word—when working out the boundaries than using the number of those who are actually registered to vote.

Having listened to this debate and having heard the arguments, will the Minister ask the Boundary Commission what its views are and whether it thinks that it would be feasible, better and constitute an advance to make its judgments based on population rather than on the electorate? I would welcome that. I know that the Minister will tell us that the Boundary Commission has given evidence, but will he put this to it de novo? Will he tell it that this submission has come from people who have been involved in elections and has arisen from a debate specifically on the issue which reflected our concentrated thinking on it? I would welcome a new response from the Boundary Commission as that would greatly help the debate and the discussion.

[Lord Wallace of Tankerness]

My Lords, the secretaries of the Boundary Commission were asked about this by the Political and Constitutional Reform Select Committee in the other place and they indicated the significant difficulties that would arise from using a population base rather than an electorate base. I have made that clear. I am sure the noble Lord is not suggesting that they were not displaying their expertise when they answered that question put by the Select Committee in the other place.

[Lord Foulkes of Cumnock]

I accept that they were asked the question. But what is the purpose of having debates like this in the House of Lords?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 17th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords—

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

My Lords, I am pleased to take the cue from the right reverend Prelate, because it is fair to say that, while not everyone has yet had the opportunity to speak—

[Lord Foulkes of Cumnock]

My Lords—

--- Later in debate ---

[Lord Wallace of Tankerness]

When I rose earlier, there seemed to be a mood that I should perhaps give way to the right reverend Prelate, which I was happy to do—

[Lord Foulkes of Cumnock]

My Lords—

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 12th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as has been indicated, this amendment is very similar in its terms to the previous amendment, although it focuses on the need to maximise the proportion of private sector tenants on the electoral register. It will therefore not come as a surprise if I indicate that the arguments are substantially the same. I will answer the noble and learned Lord, Lord Falconer. The difference is that what we are being invited to do with these amendments is put off the boundary review to some indeterminate time. No date is fixed in these amendments, although the noble and learned Lord said that it could be 1 December 2011. But we have heard the whingeing complaints that to do it in 2010 is going to make it tight for a boundary review to report by 2013. Given that, I rather suspect that using a review date for the electoral register in December 2011 is going to make it impossible for the 2015 election to be fought on new boundaries. That is the crucial difference.

The party opposite appears to wish the boundaries for the 2015 election to be fought on electoral data, so far as England is concerned, that go back to the year 2000. We have quoted on many occasions in these debates the report from the Electoral Commission published in March last year, when of course the party opposite was in power. These underregistrations have not suddenly materialised since May last year. I have indicated what we intend to do with regard to younger people in terms of data matching, so I found it rather breathtaking to hear the noble Baroness, Lady Thornton, say that we should get on with it. I think that we are probably proposing to do more in our first eight months in office than all that happened during the past 13 years. I give credit for initiatives that were taken, like rolling the register, but all that would come to naught because any benefit that came from that if we hold the 2015 election on electoral data from 2000 would be lost. Any positive steps taken by the previous Administration will not have any effect.

The noble Lord, Lord McKenzie of Luton, mentioned Glasgow, and in previous exchanges the noble Lord, Lord McAvoy, has indicated what has been done there, and it is a positive example. But of course none of that would be taken into account if we had to use electoral data from 2000. I welcome back the noble Lord, Lord Foulkes of Cumnock, because I wondered where he was earlier.

[Lord Foulkes of Cumnock]

I have been here or hereabouts for most of the evening. The noble and learned Lord, Lord Wallace, will remember as I do that Jack de Manio, when he presented the “Today” programme, had in front of him a message: “Remember, it’s different in Scotland”. Can the noble and learned Lord answer a question for me? All today and on previous days I have wondered what arrangements departments in England dealing with this are making for liaison with the Scottish Executive in implementing this and all other parts of the Bill, if it becomes an Act.

[Lord Wallace of Tankerness]

I am glad the noble Lord mentioned that because I have indicated that using the year 2000 does relate to England, but of course the previous Labour Government introduced a boundary review following devolution. The numbers were reduced and used electoral data which I am sure, if you note the kind of figures quoted by the noble Lord, Lord McKenzie of Luton, must have been as deficient in terms of underregistration in certain categories as the ones they are now complaining about; however, they did not hold back from conducting a very necessary boundary review at that time.

I indicated earlier to the noble Lord, Lord Maxton, that in terms of school records, I certainly hope that the Scottish Government will be co-operative in these matters. I fully intended to write to the noble Lord to follow up on his comment last Monday. He then made a further comment on data protection that I will respond to in a further letter which I will circulate. I also take on the point about departments and the Scottish Government.

[Lord Foulkes of Cumnock]

The Minister says that he hopes the Scottish Government will be co-operative. As he knows, the Scottish Government have been urging the UK Government not to go ahead with the referendum on 5 May, and therefore they are not necessarily in an immediately co-operative frame of mind. If this Bill becomes an Act, can I urge him to consider arrangements for joint discussions in the form of a committee or other ministerial meeting to deal with some of the tricky problems that will arise?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Wednesday 12th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

I am beginning to wonder whether the noble Baroness understands what electoral registration is about. No one is being denied the opportunity to participate in our democracy by registering. The noble Baroness has suggested that, somehow or other, the Bill will disfranchise people. If people register to vote, they will have the opportunity to vote—although whether or not they in fact vote is a matter for them. I think that there is common ground on both sides of the Committee that we ought to encourage registration.

The proposal that has been made by the noble Baroness’s party is that we should use a relevant qualifying date of 2011, which would mean that the 2015 election boundaries would be fought on data dating back to 2000. I am indicating that we can go better than that. Rather than require that the 2020 election be based on data from December 2011, the Bill will mean that we will use data from December 2015. I very much hope that, during that period, we will have made the kinds of steps forward that have been called for from all sides.

[Lord Foulkes of Cumnock]

I am getting slightly confused. No one is suggesting doing away with rolling registration. Therefore, at any time a person can get on the register and it can be as up to date as the people coming in. We are saying that there should be a big effort to get people on to the rolling register, so all these things about 2011 for 2020 are a load of nonsense.

[Lord Wallace of Tankerness]

That just confirms that the noble Lord does not actually understand what this is about. No one is disputing the importance of the rolling register and of getting people on the register to vote. The point of these amendments and of this part of the Bill is the relevant date by which the Boundary Commission has to have regard when determining what the size of constituencies will be. That does not detract in any way from trying to increase the amount of registration, so when it comes to—

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

No, I think I have been very patient. I have been remarkably patient.

--- Later in debate ---

[Lord Wallace of Tankerness]

I have not suggested that. If that was the impression that the noble Lord got, I have to correct him. I have not suggested that anyone is standing in the way of having people registered for the 2015 election. With respect, I have not yet heard anything—

[Lord Foulkes of Cumnock]

I am trying to be helpful. When I raised this on Monday, the Minister said that it was helpful. Would it not be much easier to separate registration from the decision of who we should take account of on the boundary? I suggest in Amendment 89C, which we are going to consider eventually, that we should take account of those people who are eligible to vote. We know the figures for that and if we take account of them, it separates it from the question of those who are registered to vote.

[Lord Wallace of Tankerness]

We will come to Amendment 89C but there is a relevant point that the noble Lord, Lord Boateng, made in moving this amendment. He conceded that, for the reasons that I have already given, it was not likely to be accepted but he still made a pertinent point about addressing the underregistration of people from black and minority ethnic communities. That is a pertinent point which we wish to address; I give him that wholehearted assurance.

To take on board the question of the data matching, I found that the noble and learned Lord, Lord Falconer of Thoroton, dismissed that. We have not actually heard much that is constructive coming from the Opposition Benches about what they would do after they had 13 years in government to do something. If there is a deficit at the moment, it is not the responsibility of this Administration. I suspect that those who are protesting so much have much on their conscience to protest about, because they did precious little during that period to try to make sure that the deficit has been made up. What we have done, in a short period, is to try to identify some measures—practical measures.

I do not believe, as the noble Lord, Lord Lester, said, that putting it into statute is necessarily a panacea. I believe that there is practical action on data matching. What we will be doing, if I can make it clear in answering some of the points made by the noble Lord, Lord Maxton, is comparing the electoral register with other public databases—I think that I made it clear in the past that they were public databases not, as he was suggesting in his inquiry, private databases—to find people missing from the electoral register, to see how effective that is in boosting its completeness. Based on these trials, we will decide whether to roll that out more widely.

The noble Lord asked about GP records. We are looking into that, although it will be accepted that there are sensitivities around health records. On private records, I have indicated that that is a matter for the public sector although, as other noble Lords have mentioned in this debate, we want to engage the voluntary sector in trying to boost registration. It may well be that engaging the voluntary sector in that way will give us access to other records as well. We will be using match data to identify people and invite them to register. Ultimately, however, it is up to the individuals themselves whether they register but that is what we will be aiming to do. In addition to that, a series of events is planned over the next few months, as part of the introduction of individual registration, where we will consider with stakeholders what further steps can be taken to engage with underrepresented groups.

The noble Lord, Lord Boateng, asked specifically about Operation Black Vote. I am advised that we are talking to groups representing the black and minority ethnic communities as part of the move to individual registration, including Operation Black Vote. He asked if there would be an open door, and I can confirm that the Government will be happy to consider ideas regarding who we should talk to among the black and minority ethnic communities in order to improve registration. I am not suggesting that we have a monopoly of wisdom on this. We are certainly open to the idea. The noble Baroness, Lady Thornton, and my noble friend Lord Lester indicated that there was a role to be played here by the Equality and Human Rights Commission. It is not exclusive, as has been suggested by some who are misinterpreting what my noble friend had to say.

The noble Lord, Lord Foulkes, mentioned broadcasting. At the most recent election, the Electoral Commission used broadcasting to try to get across in different languages to different minority groups. I see no reason why that should not be pursued. There is a variety of ways in which we are trying to do this.

The noble Lord, Lord Boateng, said that determination was needed to do this. I assure him that we are determined to try to address this problem. I believe that it can be done with the sort of practical measures that I have outlined and by there being a willingness and an openness to hear from others who have positive suggestions—indeed, from young people, as the noble Lord, Lord Rooker, expressed earlier. That is more practical than anything that we have heard from noble Lords opposite, with the exception of national identity cards, which this Parliament has debated and rejected.

I say that we can always do more, and this Government intend to do more. That is not to say, though, that a boundary review, which will prevent constituencies being even more out of date than they are at present and votes being more unequal than they are now, should not take place. I therefore urge the noble Lord to withdraw his amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 20th December 2010 Lords Chamber

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

My Lords, following that welcome note from the unforgettable noble Lord, Lord Rooker—and I will be returning to what he said a moment ago about the fairness of equality of votes—I first apologise to the noble Lord, Lord McAvoy, who thought in some way I was irritated. Far from it—I just did not realise that he was getting up and I got up to speak at the same time, but I deferred to him because he wanted to interest us in what he had to contribute to this part of our discussions.

I am tempted to speculate, as my noble friend Lord Deben invited me, on the mindset of noble Lords opposite. However, on this occasion I will try and resist temptation because it might take us down further highways and byways. I pause to observe that it might be difficult to do so because while on the one hand some noble Lords from the Labour Benches have indicated that the coalition agreement was to the disadvantage of the Liberal Democrats, on the other hand the noble Lord, Lord Foulkes, indicated that was a threat to the Conservative Party and its view of constitutional reform.

I also want to reassure the noble Lord, Lord Foulkes, who thought that perhaps the pace of constitutional reform was too much. He was, of course, a member of a Government—and I pay huge tribute to them—who by this equivalent stage in their first term had had a referendum on their programme for devolution for Scotland and Wales, and then introduced legislation on freedom of information and some reform to this House, and passed the Human Rights Act which put forward proportional representation for the European elections. I just regret that they ran out of steam when it came to implementing their election manifesto promise on a referendum on the electoral system, or we might have been able to avoid some of these discussions.

[Lord Foulkes of Cumnock]

Will the noble and learned Lord confirm that, in relation to the referendum and the legislation establishing the Scottish Parliament, there was not just pre-legislative debate; there was a whole constitutional convention which he and I were part of, which discussed the whole set-up, including the electoral system? It was discussed almost ad nauseam to get a consensus, not rushed and pushed through in this way.

[Lord Wallace of Tankerness]

As my noble friend, Lord Strathclyde, said earlier, people have been talking about electoral reform for years and years. Indeed, it is less than 12 months since the Government which he supported brought forward their own proposals for a referendum on the alternative vote, so it has had plenty of exposure.

It is important that we address the amendment which the noble Lord, Lord Lipsey, proposed some time ago and which was supported by the noble Lord, Lord Bach. As the noble Lord, Lord Lipsey, indicated, this was part of the coalition agreement, and it is worth recalling that back in those days in May this year, it was very clear that no party had won the election. Indeed, given the instability in world markets at the time and the potential political instability which could be fed by that, my own party, the Liberal Democrats, came to an agreement with the Conservative Party to form a coalition Government to bring, I believe, much needed stability at a very crucial time.

There were several issues in that agreement with regard to constitutional reform and the coalition’s programme for government made a clear commitment to both the issues involved in this Bill—a referendum on the alternative vote and a boundary review to ensure a reduction of the House of Commons and equality of value of votes in constituencies. It was the Government’s view that both issues should be tackled and implemented together, and we have never made any secret of that particular fact.

--- Later in debate ---

[Lord Wallace of Tankerness]

For good reasons, which the Bill addresses, there are exceptions. There are only two, and I do not want to take up the time of the House, although we will, no doubt, have plenty of opportunity at a later stage to explain why in these two limited cases, which by any stretch of anyone’s imagination are different from any other part of the United Kingdom, an exception has to be made. Two out of 600 does not really depart from the principle of fairness that I illustrated.

[Lord Foulkes of Cumnock]

I would not want the Minister to mislead the House. It is not just two constituencies. The area provision also excludes the constituency presently represented by Mr Charles Kennedy. Is that not correct?

[Lord Wallace of Tankerness]

That is not correct. The relationship between the area provision and the constituency represented by my right honourable friend Charles Kennedy is that he currently represents the largest area in the United Kingdom. The area referred to in Part 2 is just slightly larger. It is not to preserve a particular constituency. Indeed, if one thinks about it logically, if you start at the top and come down, it would eat into his present constituency anyway. It is not an automatic read-across. The noble Lord has just got it wrong on that point.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble Lord is right to identify the ones he has. The others were, I think, incorporated into an amendment that was moved in the other place and that related to some of the highlands seats and Argyll and Bute. I hear what he says. I can assure him that I have already met elected Members from Cornwall as well as elected Members from the highlands and islands of Scotland on these issues. We are certainly alive to the issues that he has raised, and I have no doubt that we will have plenty of opportunity to debate them in due course when we return in the new year.

[Lord Foulkes of Cumnock]

The Minister said that I am just plain wrong. Can he therefore explain the purpose of new paragraph 4(2) in substitute Schedule 2 to the 1986 Act:

“A constituency does not have to comply with rule 2(1)(a) if … it has an area of more than 12,000 square kilometres”.

Paragraph 2(1)(a) provides, of course, that it need be,

“no less than 95% of the United Kingdom electoral quota”.

My understanding of that is that in the highlands at least one constituency, if not the existing constituency of his right honourable friend, would be exempt from that rule, and on previous voting patterns it is likely that it would be a Liberal Democrat constituency.

[Lord Wallace of Tankerness]

I think the noble Lord specifically said that it would be the constituency of my right honourable friend, but in fact that is wrong. Obviously parts of the Highlands and Islands, and perhaps even parts of mid-Wales, raise the potential for large areas to be covered. It would be wrong for us to second guess how the Boundary Commission will apply that. I can certainly assure him that although as a party we have had a consistency good record in the Highlands and Islands, we never take that for granted, and I would certainly not presume from this Dispatch Box that any resulting seat would be a Liberal Democrat seat. However, we would work hard to win it.

[Lord Foulkes of Cumnock]

The point I was making was that the noble Lord said that he agreed with his noble friend Lord Deben that the prime consideration should be the number of electors: that that was supreme. The Bill exempts Orkney and Shetland and the Western Isles. Now there is another exemption, is there not?

[Lord Wallace of Tankerness]

Yes, but as I indicated earlier, I do not think that that detracts from the fundamental principle because it reflects common sense on the areas. I am sure that the noble Lord would be the first to complain if we had not done something similar. Let us hear from a fresh voice.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 20th December 2010 Lords Chamber

[Lord Wallace of Tankerness]

As I understand it—if I am wrong I will certainly make the correction—it is not of the population because obviously there are members of the population who are ineligible to appear on the electoral roll. I understand that it is the figure of those who are eligible to vote.

I take the important point made by the noble and learned Lord that there are groups—young people, people in the private rented sector, people from ethnic- minority communities—where the figure of non-registration is disturbingly high.

[Lord Foulkes of Cumnock]

If the Electoral Commission can produce that figure of 91 per cent registered of those eligible to vote, then it must have a figure of those eligible to vote. If it has a figure of those eligible to vote why not use that figure in each constituency rather than the registered figure?

[Lord Wallace of Tankerness]

I understand that. If I am wrong, I will readily correct it. However, the point is, as I understand it, that that is trying to compare like with like. It compares reasonably well with other countries, but I readily acknowledge that within that there are groups which are considerably under-represented. The information I have been given is that the figure is 91 per cent of those in the population of voting age.

[Lord Foulkes of Cumnock]

In order to calculate that the figure is 91 per cent of the people of voting age, you must know how many people there are of voting age in each constituency. Surely that figure could be used for the boundary reviews, rather than the number of people who have bothered to get their name on the register, and it would be much more accurate.

[Lord Wallace of Tankerness]

It is indicated that voting age may not always mean eligibility to vote, because there might be occasions when people may not be United Kingdom citizens, or be Commonwealth citizens or citizens of the Republic of Ireland, and would thereby be ineligible to vote.

The two important points are, first, that that 91 per cent figure is reasonable and compares well with other countries and, secondly, there are still within it groups where the registration rate is not, by any stretch of the imagination, satisfactory; and I believe that there is an obligation to address these issues.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble Lord is inviting the electoral registration officers to write to me and clearly, if they do, I shall make what they say available. The schedule states:

“A ballot paper on which the voter makes any mark which … is clearly intended to indicate a particular preference for a particular candidate”—

I think I would include within that putting an X or even a tick against a person’s name—

“shall be treated in the same way as if the appropriate number … had been marked”.

I hope that the wording there is clear but obviously the electoral registration officers may wish to clarify that. I suspect that it will be a while before we get to Schedule 10, although perhaps not as long as might otherwise be the case.

[Lord Foulkes of Cumnock]

The noble and learned Lord mentions an X or a tick, but would even HMFC in a maroon heart be acceptable?

[Lord Wallace of Tankerness]

I am very doubtful about that last one but I could not possibly make a decision on it.

--- Later in debate ---

[Lord Wallace of Tankerness]

We could go into the merits of the first past the post system and there are a considerable number of wasted votes for candidates who do not succeed. In some cases it can be up to 40, 50 or 60 per cent of votes for candidates who do not win. Under the present system, anyone who votes for a candidate who wins, which is more than a majority of one, is technically described as a wasted vote, too. We are getting into the debate of the first past the post system against the alternative system. That is a matter for the referendum campaign. We could go round the houses debating the relative merits of the system, as I will do during the referendum campaign, but what I am seeking to do for the purposes of this amendment is to indicate that the reallocated votes of the fractional votes imports a degree of complexity and it means that votes do not have full value in subsequent counts, which would happen under the system proposed in the Bill.

[Lord Foulkes of Cumnock]

Some Members opposite seem to adjust the rules of the House as we go along. Up till now, when someone has got up the speaker goes down. I will watch it carefully in future.

The noble and learned Lord, Lord Wallace, used again the election of the Lord Speaker as an example. Previously it was used by his colleagues who also used the election within a party of a leader. These are not party political elections, however, as between parties, as we saw when we ended up with the noble Baroness, Lady Hayman, as the Lord Speaker. Within a party, it is not party political. Surely these are not parallels that can be drawn.

[Lord Wallace of Tankerness]

To suggest that the election of a leader of a party is not political—I understand that it is not party political but maybe it will be factionally political within a particular party and therefore the comparison is apt. Also, as the noble Lord would recognise, Scottish local government by-elections are now conducted on an alternative vote basis and they are very party political.

[Lord Foulkes of Cumnock]

They are also eccentric and aberrant in some ways because, if you take a four-seat ward, as we have had recently in Edinburgh, you can get a councillor of one party which managed to scrape one seat in that four-seat ward, he retires but it is the party which got the three seats which manages to get the by-election success because it is the biggest party. So it is aberrant.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Foulkes, is again rehearsing the kind of arguments that we will no doubt exchange in some television or radio studio in the coming weeks and months. I thank him for giving me forewarning of the arguments that he proposes to adopt. With regard to the amendment proposed by the noble Lord, Lord Rooker, as I have indicated, we do not favour an approach that would involve a reallocation of votes on a fractional basis. There are practical considerations. Nor, I understand, does the Front Bench opposite. There could be complications for voters in understanding it. I take the point that all the voter has to do is go into the polling station and write 1, 2, 3, 4. Nevertheless, understanding is required. I am not aware of anywhere else that uses the system proposed by the noble Lord, Lord Rooker. Therefore, I urge him to withdraw his amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I agree with much of the analysis of the noble and learned Lord, Lord Falconer. Just because the total is a small figure, there is no reason why the second preference votes should carry any less value. It is also important to reflect, as the noble Lord, Lord Lipsey, said, that the purpose of a system is to provide a wide choice for voters. Under this system, every vote has equal value and is allocated to the candidate who is ranked highest in the preferences marked on the ballot paper and who is still in the contest. It is only fair to assume that in a second round the person marked as the first preference is the one whom the voter wishes to see come first, and it is important that that vote has full value.

[Lord Foulkes of Cumnock]

Can the Minister help me? I have had a quick look through the Bill and I cannot find any provision, although it is probably carried over from existing legislation, where candidates have to pay deposits and, if they get less than a percentage of the vote, they will lose that deposit. Is that provision still there? If that is the case, I am afraid my noble and learned friend, Lord Falconer, might have to rethink because, if someone is going to lose their deposit, why should the votes be transferred? The threshold for losing the deposit was set at that level for a particular reason. I do not remember when it was set and what the reason was, but presumably it was that the candidate had failed to convince enough electors.

--- Later in debate ---

[Lord Wallace of Tankerness]

I was just going on to say that I accept that when the United Kingdom Government develop proposals in relation to UK parliamentary elections, it is important that issues affecting Scotland, Wales and Northern Ireland are considered as part of the process. The practice of the Cabinet Office, which leads on electoral policy issues, is to work closely with colleagues in the territorial departments—the Scotland Office, the Wales Office, the Northern Ireland Office—on policy proposals. They would be able to highlight any concerns or issues affecting the particular part of the United Kingdom. I have no doubt that, if the Scottish Government or the Scottish Parliament had particularly strong views on the wording of a polling card that would be taken into account but I do not believe that it is necessary given the fact that this is a wholly reserved matter. It has been accepted on all sides that it is a wholly reserved matter that requires a statutory requirement. The Electoral Commission is in a different position, because the Electoral Commission has a host of responsibilities with regard to the material that is published and goes out in association with an election. As I indicated, I am sure that if representations were received from the Welsh National Assembly, they would be considered on their merits, but on a matter which is entirely the responsibility of the United Kingdom Parliament and Government, a statutory requirement to consult is not necessary. I therefore ask the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

I am grateful to the Minister for his usual courtesy and for his careful and clear explanation. He mentioned that if the Scottish Government or the Scottish Parliament had particularly strong views, even on a matter that is wholly the responsibility of the United Kingdom, they would be taken account of. I do not know if he was in at Question Time today—no, it was when the noble Baroness, Lady Neville-Jones, repeated a Statement about the immigration bar. The Minister will know from his own experience that the Scottish Government and the Scottish Parliament are very exercised about the particular concerns of Scotland in relation to imposing an immigration bar, but, when I asked the noble Baroness whether the Scottish Government had been consulted, she did not even know.

That goes against the kind of assurance that the Minister has given. I am sure that he is genuine and that he is right, but there are people like the noble Baroness, Lady Neville-Jones—I do not know if she has ever been to Scotland; she certainly seems to know very little about it—who do not really pay much attention to what is happening in Scotland. This is a matter of importance. I hope that the Minister, since he has a wider responsibility than just this Bill, will ensure that some of the departments are taking account of Scottish issues.

My noble friend Lord McAvoy raised a number of issues, particularly in relation to what has happened tonight. I ask him to give some sympathy to the position of the noble Lord the Leader of the House. Can you imagine how difficult it must be for him when every time he goes to a Cabinet meeting or bumps into David Cameron in the Lobby he has to explain why he is not managing to get his legislation through? I understand the difficulty that he is in, and it serves him right. No, I sympathise with him. However, I hope that he will also genuinely understand—just as I genuinely understand the pressures that he is under—our concern for parliamentary democracy and scrutiny, which are of absolute importance. He has been on this side of the House often enough, and he will be again—sooner, probably, than he realises. So I hope that he will take account of that.

I welcome the new Members. I am sure that they did not know what to expect. One of them has written a novel about this place, which is how I know there is a toilet behind the Throne; but for that, I would not have known. You learn a lot of interesting things, and I hope that he has learnt some tonight. I really am tempted to push this to a vote, to give them the opportunity on their first day to go through the Lobby, get their name down and get their tick to say that they have participated in the vote. I see the noble Lord, Lord Shutt of Greenland—is it Greenland? Is it Lord Green of Shuttland? I see that the noble Lord is equally enthusiastic about having a voice, since he would be one of the Tellers; I see his happy face every time I go through the Lobby.

I am tempted to vote on this. However, because of the clear and convincing explanation that the Minister gave, and because my noble friend Lady Browning, the noble Lord, Lord Kennedy, and George Reid are on the Electoral Commission now, I have much more faith in it better representing some of our interests. I therefore beg leave to withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Monday 13th December 2010 Lords Chamber

[Lord Foulkes of Cumnock]

Yes, I can. Ireland is a good example of a country in the European Union.

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

But we always have reciprocal arrangements with Ireland.

[Lord Foulkes of Cumnock]

Indeed, but that is just one example; I was asked for only one example and I gave it to my noble friend. I knew what he was getting at but I was not going to fall into that trap. Maybe he would like to come back.

--- Later in debate ---

[Lord Wallace of Tankerness]

If the noble and learned Lord thinks it would be helpful for me to speak to Amendment 39A, I will also deal with the other points that have been made and perhaps come back to him after he has had an opportunity to speak.

This has been an interesting debate. Some of the arguments have been well rehearsed before. In a debate a week ago tonight in Committee, the noble Lord, Lord Foulkes of Cumnock, sought in a very similar amendment not to have the referendum on 5 May. My noble friend Lord Strathclyde, the Leader of the House, responded, and the House took the view quite clearly that the amendment should not pass. I am always slightly wary of this position. I can understand the noble Lords, Lord Lipsey and Lord Campbell-Savours, who I think are basically in favour of some form of electoral reform, counselling against the date, but when the noble Lord, Lord Foulkes, who I know wants a no vote, tries to tell Liberal Democrats what is in their best interests, Greeks bearing gifts tend to come to mind. It is also interesting that the two sides of the argument—the one side that wants no and the other side that wants yes—think that there are equally good reasons for not having the referendum on 5 May. In some respects, they cancel each other out.

[Lord Foulkes of Cumnock]

The noble and learned Lord will recall that when I said that, I was talking about a conversation that I had had with a Liberal Democrat Peer, whom I wanted to remain anonymous, who argued with me that the date should be separate and that he should support my amendment. I was saying that this was the advice that I was being given from one anonymous Liberal Democrat.

[Lord Wallace of Tankerness]

I know that the noble Lord is always willing to give advice to Liberal Democrats. It is for Liberal Democrats to judge when and when not to accept his advice.

We rehearsed some of these arguments with the noble Lord, Lord Browne of Ladyton, during the debate in the House last Thursday on the order relating to the Scottish elections in 2011. The point about this debate on the amendment in the name of the noble Lord, Lord Foulkes, which indeed relates to Scotland, in combination with the clause stand part debate on local elections and perhaps some mayoralty elections in England, elections to the Welsh National Assembly, and a series of elections and other local referendums in Northern Ireland on the same day, is that the effect of the noble Lord’s amendment—

--- Later in debate ---

[Lord Wallace of Tankerness]

Sorry, I do not follow the noble and learned Lord’s point. In the Bill as it originally stood prior to any amendment, the date was to coincide with the statutory dates for the other elections—hence the wording of these proposals. My noble friend’s amendment makes provision that, if the referendum was not on the same day as a poll for the Scottish Parliament, the Welsh National Assembly or Northern Ireland Assembly, the relevant schedule will not apply and, therefore, they will not be combination. That is what this clause is about and what this amendment is about. I ask the noble Lord, Lord Foulkes, to withdraw his amendment, as it could have an unfortunate effect, which I am sure is not what he intends. I ask the Committee to support the clause, which is important from a technical point of view, not least in the interests of voters.

[Lord Foulkes of Cumnock]

This has been a very interesting and revealing debate. If noble Lords were not confused before they came into the Chamber, I am sure that they are now. My amendment would remove the subsection that says:

“The polls for the referendum and the Scottish parliamentary general election in 2011 are to be taken together”.

Nothing could be clearer than that, could it? Then we have the amendment, which the noble Lord, Lord McNally, tabled in a panic, because of something that happened on Report elsewhere. It refers to a circumstance “if” they are,

“not held on the same day”.

Which takes precedence? Surely saying that they are to be taken together means that they are to be taken together. Nothing could be clearer than that. Even the noble and learned Lord, Lord Mackay of Clashfern, the former Lord Chancellor, said that if that said that they were to be taken together, they were to be taken together.

Scottish Parliament (Constituencies and Regions) Order 2010

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 26th October 2010 Lords Chamber

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

My Lords, as many noble Lords may know, the Boundary Commission for Scotland completed its first review of Scottish Parliament boundaries, as required by the Scotland Act, earlier this year. The commission submitted its Report on the First Periodic Review of Scottish Parliament Boundaries to the Secretary of State for Scotland on 26 May 2010, and a copy was laid before the Scottish Parliament and this Parliament on the same day. The Boundary Commission’s report was accompanied by two DVD-ROMs containing geographical information system data defining the constituency boundaries. This is referred to as “the deposited data” in Article 2 of the order.

This approach was necessary because a number of the recommended Scottish Parliament constituencies have boundaries that do not follow existing local government ward boundaries. Previous constituencies were made up of complete local government wards, which are defined in existing legislation and therefore could be referred to by listing the ward names. The level of detail required to define the constituency boundaries meant that they could not practically be shown on traditional maps at an appropriate scale. The local government wards and part-wards that fall within the constituencies are listed in the appendices to the Boundary Commission’s report, and the master copies of the DVD-ROMs have been deposited with the Secretary of State for Scotland for safekeeping. Reference copies are deposited with the Boundary Commission for Scotland, and copies are also available in the Library of each House.

The Scotland Act also requires the Secretary of State to lay before Parliament, as soon as is practicable after receipt of the report, the draft of an Order in Council giving effect to the recommendations in the report. Such a draft was laid on 1 July. It was debated in the other place on 15 September and approved, and now comes before your Lordships’ House. Ministers readily acknowledge that there have been some concerns about some of the commission’s recommendations. These have been raised with Ministers, but I emphasise that they have no power to direct the Boundary Commission to change any of its recommendations or to amend any boundaries through the order. The Boundary Commission is an independent and impartial body, and its statutory consultation and local public inquiry process allowed for consideration of concerns and representations about its proposals made by politicians, local authorities and others. Final decisions on recommendations were ultimately a matter for the commission. Details of the consultation, and local inquiries and their outcomes, are included in the commission’s report.

As I explained earlier, the order gives effect, without modifications, to the recommendations contained in the commission’s report. It defines the name, status and area of 71 of the 73 parliamentary constituencies, and the name and area of each Scottish Parliament region. The Orkney Islands constituency, which for eight years I had the privilege to represent in the Scottish Parliament, and the Shetland Islands constituency, were excluded from the scope of the review because Schedule 1 to the Scotland Act provides for them directly. The order is required to be approved by both Houses before being made by Her Majesty in Council. Subject to it being approved and made, it will come into force on the day after it is made. At this stage, we envisage that being some time in November. The boundary changes will not affect the Scottish Parliament, or elections to the Scottish Parliament, until the next general election to the Parliament, whether that is an ordinary or extraordinary general election. Nor will they affect any by-election held before the dissolution of the Parliament.

The Scotland Office consulted electoral administrators and the Electoral Commission over the proposed timing of the Boundary Commission’s final report, and on the proposed timing of the commencement of the order. Following the consultation, administrators agreed to start the necessary preparatory work in advance of the legislation coming into force, given the proximity of the next general election to the Scottish Parliament in May next year. The Parliamentary Under-Secretary of State also wrote to the Scottish Government’s Minister for Parliamentary Business and the Presiding Officer of the Scottish Parliament, among others, in early July informing them of the proposed timing of the legislation.

The Scotland Office also consulted electoral administrators on the impact and risk of the boundary changes being applied to any extraordinary general election called between the legislation coming into force and 5 May 2011, and on the impact of having to run any by-elections between 1 December and 5 February, which is the latest that a by-election can be held, on old boundaries. Administrators supported running an extraordinary general election after 1 December on the basis of new boundaries. As for by-elections, their view was that this was a localised risk that could be managed, should the need occur.

It will of course be our intention to keep all interested parties informed of the proposed timing of the commencement of the legislation and, subject to the order being approved and made, the Scotland Office will write to them in due course to confirm the commencement date. I commend the order to your Lordships’ House. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I had considered whether, in speaking today, I should declare an interest. Not only am I a Member of this House but for a short while longer I shall be a Member of the Scottish Parliament. However, I shall not be standing again for the Scottish Parliament, which has delighted a lot of people, and I shall concentrate my efforts, such as they are, in this Chamber, which has upset a lot of people opposite. Therefore, as these boundaries will not affect me, I do not think that declaring an interest is necessary.

It is a great pleasure to see here so many noble Lords from Scotland and I hope that they will participate in the debate today. Many of them were in the other place and served with distinction, and others were in local government. Indeed, there are some who served on the other side in the other place for a long time and I still call them my noble friends. I hope that they will participate, because some very important implications arise from what is being proposed.

As the Advocate-General said, these boundaries have been proposed by the Boundary Commission for Scotland, which has undergone a long and detailed procedure. It has been the procedure for considering boundaries north and south of the border for generations, if not centuries. It is well worn, well trued, well tested and well tried, and it involves the local communities. Proposals have been put forward, submissions have been taken by the Boundary Commission and hearings have taken place, and in many cases substantial revisions have been undertaken to take account of the representations made. Account has been taken of community cohesion and of local views on local authority boundaries. The Advocate-General said that they are not wards but he will concede that all the proposals take account of existing local authority boundaries. Throughout the time that I have been involved in these boundary reviews, community cohesion has been a very important part but unfortunately the equivalence of numbers now seems to be the only criterion that really matters. If that is the case in the future, it will be very worrying for local communities.

Let us compare that procedure, which has brought these proposals to us today, with what is now being proposed and has been considered in another place. I cannot remember the Long Title of the Bill but for simplification I call it the “gerrymandering Bill”, because that is what it is. It reduces the number of constituencies in the United Kingdom by 50—a totally arbitrary number. You might as well say that the MPs’ responsibilities have increased so greatly that the number should be increased, rather than reduced, by 50, but that would be equally arbitrary. I repeat: the proposal that is being put forward is totally arbitrary.

That is bad enough in itself but the really disgraceful part is that the whole democratic procedure, which, as I said, has existed for generations, is to be scrapped and set aside to rush these boundary changes through in time for the next general election. That is a total negation of democracy and is absolutely unbelievable. No account will be taken of community cohesion. No account will be taken of representation. No account will be taken even of local authority boundaries. The new constituencies, in some cases mega-constituencies, will not necessarily take account of local authority boundaries, unless, of course, you are one of the chosen few who—I say looking directly at the Advocate-General—come from Orkney or Shetland or the Western Isles; or happen to be Charlie Kennedy and represent a huge mega-constituency; or, in other words, who happen to be a Liberal Democrat. Maybe there is one SNP in this group just to cover it up, but basically, if you are Liberal, protection will be provided for you. That is the extent of the gerrymandering that is taking place.

I plead with the Advocate-General to go back to his colleagues in government and to ask them to think again about what we are considering here today. I have seen so many changes. I even remember that the late John Smith, the greatest Prime Minister we never had—his widow was here with us earlier, listening to our proceedings—considered that making representations to tribunals was so important that he was in Airdrie town hall the day before he died. All the extra effort might, sadly, have helped to bring on his death. That was how important he considered these democratic hearings.

It really would be outrageous if this gerrymandering Bill were to go ahead. We would then end up with the anomaly of having a democratic procedure for the Scottish Parliament—the Boundary Commission for Scotland would still have hearings, still consider representations, still consider community interest, still take account of local authority boundaries—while all that would have been swept aside for the House of Commons. So in the same United Kingdom we would have two completely different systems: one which continues to be democratic and involves the community and the other which would be a total gerrymander.

I urge the Minister to think again. The Bill will soon come to the House of Lords. I have no authority to warn the Government, but my gut feeling is that, even among Conservatives, Liberal Democrats and Cross-Benchers, there will be some for whom doing away with this democratic procedure will be so abhorrent that they will speak, and I hope vote, against it.

--- Later in debate ---

[Lord Wallace of Tankerness]

Although the order was laid on 1 July, the Boundary Commission’s report was made available on 26 May and has obviously been in the public domain. Although the legislation is not in place, the electoral administrators have been working towards its implementation on the basis of what is in the order.

The noble Lord, Lord Hunt, asked what the main issues are. One of the most important issues is the compilation of the electoral register for the new constituencies. It is my understanding that the new electoral register will be published on 1 December and will reflect the new constituencies for the Scottish Parliament. It will be compiled on that basis. Obviously, if a by-election occurs, it will have to be fought on the existing constituency. It will require some work to put the electoral register together again for the existing constituency but, in the event of that happening, the electoral administrators are confident that it will be possible. It will not have to be done for the whole of Scotland but will be confined to one constituency. I hope that that answers the noble Lord’s question.

More generally on by-elections, the noble Lord, Lord Foulkes, made an interesting point about the different arrangements that can occur. Several noble Lords who have spoken in this debate contributed to, or at least were present at, the debates when the Scotland Bill went through another place and no doubt there are other noble Lords here who were present when the Bill went through this House. A number of us were also members of the Scottish Constitutional Convention, which proposed a scheme leading to the kind of situation that the noble Lord, Lord Foulkes, mentioned. Therefore, we all share the credit for that.

[Lord Foulkes of Cumnock]

The Minister’s noble friend Lord Steel of Aikwood has said to me privately—he has also said it publicly—that, having seen it operate, he now regrets that system and would like it to be changed. Does the Advocate-General agree?

[Lord Wallace of Tankerness]

It is certainly not the Government’s policy to change the system but I think that my party’s view on which system it would prefer is well known. Let us also recall that the voting systems commission was established under Sir John Arbuthnott at around the time of the 2004 legislation and it did not recommend any substantive change to the system. However, I can think of an election system in Scottish local government which would ensure that all vacancies were contested by way of a by-election, but I think that I am probably straying too far on that point.

Also on by-elections, I say to my noble friend Lord Lyell that these boundaries will apply to elections to the Scottish Parliament and not to general elections or elections to the United Kingdom Parliament—indeed, they will apply to the elections in which my noble friend can vote. I am not sure which constituency he is in, but I can certainly confirm that they apply to elections for the Scottish Parliament.

Perhaps I may pick up on some of the other points that were raised. I wondered whether the noble Lord, Lord Foulkes, was going to declare an interest, but he has no interest to declare because these matters will take place after he ceases to be a Member of the Scottish Parliament. The Scottish Parliament’s loss is no doubt our added gain, but we will wait to see. The noble Lord raised the issue, as did a number of noble Lords, about the inquiry system, but he also asked about the power of the Presiding Officer to change the date of the election. It is my understanding that the Presiding Officer can change the date by one month either way. My right honourable friends the Secretary of State for Scotland and the Deputy Prime Minister have spoken relatively recently to the First Minister and to the Presiding Officer about the possibility of the two elections being on the same day in 2015 and whether there are other ways of dealing with that to try to avoid that happening. No firm view has been taken yet, but the matter is under active consideration.

On the issue of inquiries, it is the case that a system of inquiry led to this order, which has been so greatly welcomed, lauded and praised that I am sure it will have no difficulty in getting through. That said, I could not help but reflect that my noble friend Lord Maclennan complained about the size of the north Highland constituency that has been produced under this system of inquiry. The noble Lord, Lord McAvoy, also indicated that he had argued, under the existing system, for Rutherglen not to be in the Glasgow regional area but to be in a different area. Of course, the present system did not assist him in giving him what he wished, although my friend in the Scottish Parliament who is a list Member for Glasgow obviously managed successfully to persuade the Boundary Commission.

Elections: AV Referendum and Scottish Parliament

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

Tuesday 20th July 2010 Lords Chamber

[Lord Wallace of Tankerness]

I am certainly happy to give that confirmation. I think—I will need to check, but I think—that my noble friend is right that the referendum on the mayoral system for London was on the same day as the London local elections. I think that I was registered in London at that time, when I was a Member of the other place. I remember going to the same polling station as my noble friend Lord Ashdown and, as we entered it, the then leader of my party asked, “Which way do we vote?”.

[Lord Foulkes of Cumnock]

My Lords, it is in no way connected with the lack of intelligence or otherwise of the electorate in Scotland. However, can the Minister confirm that should the Scottish Parliament make a decision that it does not wish the referendum in Scotland to be held on the same day as the Scottish Parliament elections, the United Kingdom Government will honour its wishes? In asking that, I declare an interest as a Member of the Scottish Parliament.

[Lord Wallace of Tankerness]

I recognise the noble Lord’s interest. My right honourable friend the Deputy Prime Minister has made clear what we wish to do. There are many examples from many places around the world of elections and referendums taking place on the same day. With the first Scottish election taking place in the shadow of the Kosovo engagement and the second Scottish election coinciding with the Iraq war, I do not believe that there will be any question of the Scottish elections being overshadowed by the referendum.