Scotland: Independence

Lord Hope of Craighead Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I come very near the end of a long and fascinating debate, in which we have had excellent contributions from so many parts of the United Kingdom, right down that lovely banana that lies on the Celtic fringe of our islands, from the Western Isles down to and including Cornwall. And we have had a marvellous contribution from pure Englishmen as well.

In the time available to me, I should like to concentrate on the report of the Select Committee. I was one of those who was privileged to give evidence before the committee, and I was very impressed by the quality of the questions that were put to me, and by the expert and effective chairmanship of the noble Baroness, Lady Jay. We were being asked to consider an event which we all wished would not happen. However, as an intellectual exercise, it was a very stimulating experience. I pay tribute to what I think is an excellent report and to the masterly way in which it was introduced for us this afternoon by the noble Lord, Lord Lang of Monkton.

Although it contemplates the implications of a vote for independence for the rest of the United Kingdom, it has some very important things to say about what that vote would mean for Scotland, too. It seemed to me to be clear, when I was giving evidence, that Scotland could not take this step without a great deal of assistance in that direction from Westminster. I took the orthodox view; there are reserved matters. The union of the kingdoms of Scotland and England and the Parliament of the United Kingdom are reserved; so also is the power to repeal the two Acts that gave effect to the Treaty of Union—the Union with Scotland Act 1706 and the Union with England Act 1707—of the Scottish Parliament. So the recommendations that legislation would be needed in this Parliament to set the process in train, as described in paragraphs 37 to 44, seemed to me to be entirely appropriate, with legislation going through this Parliament to make the necessary changes to enable the process.

As the noble Lord, Lord Shipley, said, the recommendations were cogent and persuasive, but that is not how the matter was seen north of the border. The scales were lifted from my eyes when, on 16 June, the Scottish Government published the draft Scottish Independence Referendum Bill. I rather regret that it has not been made available for all of us in the Printed Paper Office, because it really has to be seen to be appreciated. One may ask how it could be that the Scottish Government should devote time and money to something that is outside their competence, but it seems that we are far beyond niceties of that kind. It is quite plain from this document that the SNP Government take a quite different approach. In effect, that draft independence Bill is their response to the committee’s report. Far from being, or seeing itself, as a “successor” state deriving its independence by a grant of independence from the rest of the UK—a gracious grant, as someone said this afternoon—independence is something that they wish to assert as their constitutional right on their own terms. That is what this document is all about.

Mr Salmond is not looking for a Scottish independence Bill passed in this Parliament. What he is doing in this draft Bill is making a draft declaration of independence on his own terms. As I see it, that is a warning for all of us. It changes the flavour of the debate from that which I think the Select Committee, with great respect to it, was contemplating in its discussions. I think that it will lead to a demand by Mr Salmond for a Section 30 order removing all the obstacles to his Bill, so as to allow him to put the measure before his Parliament within days of his obtaining a yes vote. He will claim to have the backing of the Edinburgh agreement, about which the noble Lord, Lord Kerr of Kinlochard, made some very persuasive comments. It may be very difficult to see how we can escape from its terms. I hope that the Minister will say whether the Edinburgh agreement will survive a change of government if in 2015 the Government change and the Opposition become the Government. As far as Mr Salmond is concerned, speed is essential. His target is to achieve independence during the lifetime of his present Government in Edinburgh while he can still control events, and the rest of the United Kingdom must face up to that.

I think it is right to say that the launch of the Bill was a propaganda exercise. “We can give you something that London cannot give you—your own constitution”, it is saying. It is, at first sight, a simple and compelling document, as the noble Lord, Lord Elis-Thomas, said. It is brilliantly drafted, readable by everyone, including primary schoolchildren, and is something that anyone who cares to read it will at once understand. All the bits that one would expect to find are there: the nature of the state; an outline of the machinery of government; citizenship; protection of rights and freedoms; equality; the environment and, of course, the repeal of the Act of Union. Anyone who dares to criticise it does so at his peril. However, there certainly are things to criticise. Like the noble Earl, Lord Caithness, I suggest that the Government need to look at the document’s terms very carefully and point out where the flaws lie. One of the most important is the matter to which the noble Lord, Lord Robertson of Port Ellen, drew attention— namely, the declaration in Section 23 about nuclear disarmament and the removal of nuclear weapons from Scotland. This, of course, is a subject of debate in Scotland, and many people disagree with what is being proposed. However, as I understand it, the provision is there to tie the hands of the successor Government. That is why it is so important to Mr Salmond to get this through while he maintains a majority. That is another reason for being cautious about the making of a Section 30 order. One would need to be very clear about the implications if this constitution, and its effect on the nuclear weapons policy, gave the independence Bill a free hand in setting out what it intends to do.

There are other things to be concerned about. The provision about the head of state is, at first sight, very reassuring. The Queen and all her heirs and successors are to be head of state. However, there are already signs of great unrest among the nationalists who want independence. The problem with putting a provision like that in a Bill of this kind is that it attracts debate and creates instability.

There is the repeal of the Act of Union. Only one Act is mentioned given the inward-looking nature of this document. However, this was a treaty: there are two Acts, but the other Act is simply not mentioned. After all, what is the constitution really trying to do? One of the things it starts off with is claiming that the people are sovereign. Many countries in the world have written constitutions. All the countries in the Soviet empire proclaimed that the people were sovereign but, of course, we know that was simply not true. It is a charade in a way, a clever piece of propaganda, but one has to recognise the dangers there and what the Government will be faced with when they are presented again with the Edinburgh agreement and a demand for a Section 30 order. That is the challenge for the Minister, to which I invite him to reply.

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[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.

[Lord Hope of Craighead]

To be clear, is the Minister saying that what is contemplated, at least by the Government, is that there would have to be legislation through both Houses of Parliament in order to facilitate the independence Bill that is now on the table?

[Lord Wallace of Tankerness]

I think I said in my evidence to the committee that there was a possibility of a Section 30 order but that there are difficulties with that. I indicated that there might have to be very limited legislation, if only to allow the Scottish Government to put together a negotiating team and enter into negotiations. As the noble and learned Lord probably knows better than anyone in the House, along with the noble and learned Lord, Lord Cullen, the propensity for some people to litigate in areas like this could be very great. If that were the situation that we were in, although we sincerely hope that it will not be, it would be important to put the negotiations on a proper legal footing so that they could not be subject to some further challenge.

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[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.

[Lord Hope of Craighead]

I simply adopted the language of the Scottish Government. They produced this draft Bill to carry the matter forward as from independence day on an interim basis until the new constitution forecast at the end of the Bill was passed. It is incredibly important to know what we are to make of the interim Bill. Among other things, it proclaims that every Scots person is to be a citizen of the European Union as from independence day, although we all know that Scotland will not be a member of the European Union. It is full of flaws of that kind and we simply cannot give them carte blanche to pass it through without discussion.

[Lord Wallace of Tankerness]

My Lords, what an independent Scotland does after independence day would be a matter for an independent Scotland. I think that is common ground. If it wants to legislate nonsense then it can. That would be the decision of an independent Scotland.