Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Maxton Excerpts

Wednesday 10th January 2018 Lords Chamber

[Lord Forsyth of Drumlean]

Since 1826. Okay, so it is almost two centuries—certainly since there were first proper means of crossing the border at speed.

I just find it extraordinary. What can possibly be driving this? What can be the motivation? At a time when we are threatened by lone-wolf terrorists, travelling around the country, when we have seen attacks in Glasgow, Manchester and Birmingham, what on earth could be driving this? Why would someone want to break up an organisation which has a proven track record of success, which has shown great expertise, and which is specialist in its nature? How will the practical problems be resolved? Does the policeman have to get off at the station as soon as the train reaches the border and someone else come on board? What is driving this? I have come to the conclusion that the answer lies in the name—the British Transport Police. This is the sort of ideological battle that we thought we had put behind us in Scotland being translated into something that threatens the security of people in Scotland and the rest of the United Kingdom.

[Lord Maxton (Lab)]

There is no station at the border at all, whatever, in Scotland, between Scotland and England. The first station is Carlisle, which is in England.

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[Lord Hope of Craighead (CB)]

My Lords, as a fairly frequent traveller on the east coast railway line from Edinburgh to London King’s Cross, I would like to say a word or two about this issue. As the noble Lord, Lord Maxton, pointed out, there is no train station at the border, which you reach a little north of Berwick-upon-Tweed on your way to Dunbar. As I understand the situation, that means that in order to police effectively south of the border, British Transport Police officers will have to get on to the train at Waverley in Edinburgh, so they will travel the whole way down the line, as they do at present. Going north, they cannot get off at Berwick-upon-Tweed, because they still have several miles to run in England before they reach the Scottish border, and they will have to travel all the way to Waverley.

Therefore, the ridiculous situation created by this proposal by the Scottish National Party is that the British Transport Police force will remain on the train, as it does at present. It will cease to provide the kind of security north of the border that the noble Baroness, Lady Liddell, talked about, although to do its job effectively in England, it will have to travel the whole journey. Therefore, members of the Scottish police force will be travelling on the train, getting off at Berwick if they are lucky—but not every train stops there—or going all the way down to Newcastle and then having to travel all the way back again. I cannot speak for the west coast line because I am not so familiar with it, but presumably the same problem applies there, and you have to travel at least to Carlisle before you can get off the train.

[Lord Maxton]

It is even worse on the west coast, because Carlisle is even further south than Berwick-upon-Tweed.

[Lord Hope of Craighead]

My Lords, a curious feature of this measure is that if British Transport Police officers are brave enough to exercise their powers as British Transport Police officers north of the border, they are given the power to do that by paragraph 2 of Schedule 2. In fact, the paragraph is consistent with the idea that we do not go ahead with the merger at all. It is a perfectly sensible method of solving the problem which the Smith commission had to face up to, which was to say that the functions of the British Transport Police in Scotland will be a devolved matter. That is a perfectly sensible proposition. What has gone wrong is the Scottish National Party’s interpretation of it, as the noble Lord, Lord Forsyth, said.

For all the reasons that others have given, I am strongly against the merger. However, like the noble and learned Lord, Lord Wallace of Tankerness, I cannot see anything wrong with the order we are asked to consider. Therefore, if the Motion were pressed, I regret that I would have to vote with the Government because that is the state of play. However, I entirely sympathise with the plea of the noble Lord, Lord Foulkes, to the Minister. Given the practical example I have given to the Minister, I hope that he can point out to the Scottish National Party that it is a waste of public money to have two police officers travelling on the train from Newcastle all the way to Edinburgh and back again just to solve the problem of the merger which it is trying to advance.

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[Lord Maxton]

Will there also be orders relating to the different legal systems in Scotland and England? That is relevant to any discussion on British Transport Police.

[Lord Duncan of Springbank]

I thank the noble Lord for his intervention. The orders, when they arrive, will be constructed through the collaborative process between the two Governments, which I touched on a moment ago. In any order, they will bring forward proposals that comply with both Scots law and the broader law of England and Wales. We should be able to have that before us.

It is important to stress, as several noble Lords have, that the Smith commission and the legislation by which its conclusions were enacted are important elements of the continuing Scottish devolution process.

Digital Economy Bill

Lord Maxton Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, the proposals in Chapter 2 of Part 5, which are being addressed here, will ensure that citizens are able to access future—can I have a moment to sort out my own speaking notes?

[Lord Maxton (Lab)]

While the Minister is doing that, can I ask whether this amendment covers Scotland? He is replying as the noble and learned Lord, Lord Keen of Elie. Registration of births, deaths and marriages was not introduced in Scotland until 1855 rather than 1837—I think—so does this amendment cover Scotland?

[Lord Keen of Elie]

I believe it was 1836 in England not 1837.

[Lord Maxton]

It was 1855 in Scotland.

[Lord Keen of Elie]

It does not extend to Scotland. It is a provision pertaining to England and Wales. I am obliged to the noble Lord for giving me time to find my place in my notes. It is greatly appreciated.

As I said, the proposals in Chapter 2 of Part 5 will ensure that citizens are able to access future government digital services efficiently and securely, while removing the current reliance on paper certificates. I will address the two amendments first before addressing the clause stand part aspect of this debate.

Amendment 113 would add a requirement for a civil registration official to be satisfied that the information is required by a recipient to fulfil one or more of their functions before disclosing data and also seeks to add a requirement that an individual must have given valid consent under data protection legislation prior to any disclosure of their personal data. With respect, this amendment is unnecessary because disclosure of personal data under these clauses will already be subject to the provisions of the Data Protection Act. To require explicit consent in all cases would exceed the requirements of the Data Protection Act and the purpose of this clause. Disclosure will take place without consent only if to do so would be consistent with the Data Protection Act, which governs fair disclosure. Examples of how the powers would be exercised in practice include allowing registration officials to disclose information within and across local authority boundaries in order to safeguard children. Being able to share information will ensure that children are known to the local authorities in which they reside and action can be taken to address any needs of the child or the parent. That is what lies behind this matter.

Amendment 116 seeks to amend the Births and Deaths Registration Act 1953 to introduce an electronic register for the registration of births and deaths. However, the proposed amendment to Section 25 of the 1953 Act as currently drafted does not go far enough. The legislation which provides for the registration of births and deaths is based on legislation in place in 1836—or 1837—and very little has changed to the process of registering births and deaths since then. The Act would need more amendment in order to introduce an electronic register. Moving to an electronic register would remove the requirement for hard-copy registers and the electronic register of births and deaths would be the legal record instead of the paper registers. It is certainly an area of reform that the Government are keen to take forward. However, we need more time. I reassure noble Lords that the Government will look in more detail at what changes need to be made to the Act in order to bring in this change and we will consider legislating in due course. We recognise the benefits that the noble Lord, Lord Clement-Jones, suggested could be achieved once that entire process is completed. In light of those points, I hope that the noble Lord will agree not to press that amendment.

I turn to my noble friend Lady Byford and her opposition to the clause standing part of the Bill. Unless there is a specific statutory gateway, information from the records of births, marriages, civil partnerships and deaths may not be disclosed by registration officials other than in the form of a certified copy of an entry, such as a birth or death certificate, on payment of the statutory fee. As I have indicated, the system is outdated and based on paper processes from the 19th century. This clause introduces new data-sharing powers that allow registration officials to share data from birth, death, marriage and civil partnership records with public authorities for the purposes of fulfilling their functions. However, only the minimum amount of data will be provided to enable the public authority to fulfil the function.

My noble friend asked for examples of the benefits of sharing such registration data. Being able to share data about deaths with local authorities would assist in combating housing tenancy fraud. The National Fraud Authority estimates that housing tenancy fraud costs local authorities £845 million each year. An example of this is when someone continues to live in a property following the death of the tenant even when they have no right to do so. The sharing of birth data within the local authority would assist social services, for example, if they wanted to engage with one of the parents in the interests of a child. Sharing marriage data would help to target those living together if there were a fraudulent claim to be single for the purposes of claiming benefits. Sharing death data within local authorities would help them to recover medical equipment following the death of an individual.

There are many examples where such data sharing would be of assistance. It paves the way for citizens to access government services more conveniently, efficiently and securely, for example, by removing the current reliance on paper certificates to access services. This will provide more flexibility and will modernise how government services are delivered. An example is where registration officials will be able to share data on births that have occurred in one district, but where those concerned live in a neighbouring district with no hospital. This would allow local authorities more accurately to plan the provision of health care, school planning and other local services. Being able to share death data across boundaries will also help to prevent unwanted mail being sent to the family of a deceased person.

Registration officials will be able to share registration data only with the public authorities defined in new Section 19AB of the Registration Service Act 1953. Any data sharing will of course be carried out strictly in accordance with the requirements of the Data Protection Act. The sharing of registration data will be underpinned by a statutory code of practice as required by Section 19C. One of the requirements in the code will be that the Registrar-General must personally approve any request for the sharing of large amounts of data.

Before data are shared, the code of practice requires privacy impact assessments and data-sharing agreements to be drawn up and agreed with public authorities to include such things as how data are to be used, stored and retained. Data will be able to be used only for the purpose they have been provided and retained only for as long as necessary. Data-sharing agreements will forbid the creation of a database or the linking of registration data in any way. Any breach would be reported to the Information Commissioner, who has the power to impose penalties where it is appropriate to do so. I hope that that deals with the fears expressed about the bulk use of such registration data.

Scotland Bill

Lord Maxton Excerpts

Tuesday 8th December 2015 Lords Chamber

[The Lord Bishop of Chester]

If the people of Scotland are told, “We toyed with the thought of saying that it was a permanent Parliament but we decided that it wasn’t”, it will simply give the wrong message. Of course I agree that laws can be changed, just as if you have a written constitution it can be changed by some process. However, it corresponds with the reality on the ground.

[Lord Maxton (Lab)]

The fact is that we have a written constitution; we do not have a codified constitution.

[The Lord Bishop of Chester]

I am not sure that I entirely agree with the point, but I will not argue as it would take me down the highways and byways in a way that would not be helpful. I will end on the following point—and I speak as someone who loves Scotland and who will live there in retirement and no doubt will be buried there. When we talk about Scotland, often a slightly grudging spirit comes into our discussions, which is a great mistake. At the end of the day, this provision is a valuable one.

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[Lord Mackay of Drumadoon (CB)]

My Lords, perhaps I may do my best to introduce a little reality to what has happened in this case because, to quote the well-known words, I was there. I was in your Lordships’ House on 21 July 1998 during a debate on an amendment which I had moved concerning Clause 2 of the then Scotland Bill of that year. I have before me a helpful summary of the history of that event, which may assist noble Lords in deciding the way forward in a real and understandable way.

In one sense, Clause 2 refers to what happened that night when, in the course of appearing in the case, Lord Sewel made a statement which I have had a brief opportunity to look at in Hansard. He said,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/98; col. 791.]

That means that the facts of what happened were as follows. I had moved an amendment that did not refer to the convention which would be normally effective. As we all know, the Bill proceeded and, of course, became law. I am informed by the report I have in front of me that,

“Since the establishment of the Scottish Parliament, there appear to have been no significant problems with the operation of the convention. It applies when UK legislation makes provision specifically designed for a devolved purpose”,

and also when UK legislation,

“would alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish”,

Government. While some years later we can speculate about what people in this House were thinking in July of 1998, one of the phrases that causes some irritation and annoyance, and which there is clearly a wish to get rid of, is the term, “normally legislate”. It is quite obvious that that was not discussed in any detail that night.

It may also be of interest to noble Lords to know that the convention has evolved over the years and has been agreed through memoranda of understanding and by the House of Commons Procedure Committee. However, the clause refers to only some of the circumstances in which there is in practice the need for a legislative consent Motion. There is further reference to a document entitled Devolution Guidance Note 10, which was used to address some of these issues. What this proves, I would submit, is that the terms that are causing offence were not the result of any detailed debate between the parties to the proceedings before the House, and I trust that this will be of some assistance to noble Lords.

[Lord Maxton]

My Lords, I shall be brief. I spent 17 years in opposition along the corridor, and there are present at least four or five former Ministers in the Government at the time who were always telling me, whenever I moved an amendment to a Bill, that we cannot bind a future Parliament with laws we pass in this Parliament. That is a basic rule. In fact I was even taught that in constitutional history at Oxford in the 1950s. You cannot bind one Government.

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[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

First, I thank all noble Lords and the right reverend Prelate for their informative submissions, observations and comments, with regard to both Clause 1 and the proposed amendments to it. I begin by making a number of general observations. First, no one on the Government Benches is in any doubt about the supremacy and sovereignty of the United Kingdom Parliament. In that regard, I take issue with some of the comments of the noble Lord, Lord Purvis. Ultimately, it is for this Parliament to determine the constitutional arrangements of the United Kingdom.

The noble and learned Lord, Lord Hope, alluded to some observations he made in the case of AXA General Insurance and others in 2011. I recall those well. He may in turn recall that my client came second in that case. Reference was also made to some obiter dicta of the noble and learned Lord in the case of Jackson, to which we would not necessarily subscribe. However, they are there and are a helpful insight into the thinking of the court at that time with regard to the issue of sovereignty.

The purpose of this Bill is to implement the Smith commission agreement. To suggest that there is no mandate for that is, in my respectful submission, quite inaccurate. Each of the five political parties in Scotland went into the Smith commission and negotiated the terms of an agreement. The Government have undertaken to seek to implement that agreement. That is the purpose of this Bill.

[Lord Maxton]

On that point, all the political parties went into that Smith commission and all of them signed the report. However, the Scottish National Party immediately came out of the Smith commission, John Swinney among them having signed the report, and rejected it.

[Lord Keen of Elie]

I am aware of the conduct of the Scottish National Party in that regard and do not make any comment at this stage upon that. Perhaps it will be seen by others as extremely unfortunate that it should have lent credence to the agreement and then sought to renege from it. The point that we make is that it was signed—it is an agreement. It is in that context that this Bill is brought forward.

As I say, no one on the government Benches seeks to take issue with the proposition that this Parliament is sovereign and supreme. What we have here is a provision in the Smith commission agreement that we should recognise the permanence of the Scottish Parliament. It has been observed that it is, in a sense, already permanent—so be it—but let us remember that Clause 1 is concerned with a political statement, as much as any legal statement. That is its purpose, and it is not wholly exceptional in that regard. The noble Lord, Lord Norton, made reference to the Cabinet Office provisions on legislation at Chapter 10.9 of the Guide to Making Legislation. But when looked at, it expresses a generality—and, where there are generalities, there may of course be exceptions. This is one of those exceptions. I note that my noble friend Lord Forsyth agrees with me on that point.

My noble friend in turn suggested that there was little if any precedent for this form of legislation. I remind him that the Act of Union with Scotland of 1706, under the Gregorian calendar, referred to a Parliament of Great Britain for all time. In saying that, it made a political statement as much as a legislative provision—and that, again, is what we are doing here. We are recognising the political reality reflected in the Smith commission agreement.

Amendments 1 and 3 seek to modify Clause 1 by removing reference to permanence of the Scottish Parliament and the UK Government’s commitment to the permanence of that Parliament. We would not consider that appropriate. It appears to us that, in light of the Smith commission agreement, the Government should be prepared to make that political declaration of permanence. It does not take away from the supremacy or sovereignty of this United Kingdom Parliament. That remains.

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[Lord Forsyth of Drumlean]

My Lords, I will speak briefly to support my noble friend Lord Norton’s remarks and the amendment of my noble friend Lord Lang. I will not go through all the arguments about sovereignty again because we have done them to death. I will also speak to Amendment 17, which for some reason was put in an earlier group. I tabled it as a probing amendment but having listened to the debate I really think my noble friend needs to go back to the drawing board on this. It surely makes sense to put into statute the Sewel convention and then abandon it as a convention, as we discussed earlier. Of course, when we discussed English votes for English laws, I predicted that by giving the Westminster Parliament an English veto on legislation it would be only a matter of time before people argued that there ought to be a Scottish veto, as the noble Lord, Lord Stephen, did in the context of the Sewel convention.

What my noble friend Lord Norton said was very wise. We need to work out what this convention means and we need to put that in the Bill in a way that is apparent. To reassure the noble Lord, Lord McAvoy, who worries about how this will be seen by nationalists north of the border and that some people are trying to refight the battles of 1997, I see no reason why we should not just cut this Gordian knot and leave the Scottish Parliament to legislate on all devolved matters. What happens is that it piggy-backs on legislation that is carried down here and then finds it very convenient to blame Westminster for passing the legislation to which of course it was a party.

This Bill hands a huge new set of powers to the Scottish Parliament, with huge new responsibilities. The whole purpose of the Bill is apparently about making the Parliament accountable to the Scottish people. Well, why not let them get on with passing the legislation necessary to meet their responsibilities? I think that the Sewel convention should be toughened up. It should be made stronger and should basically provide that the Parliament of the United Kingdom will not legislate with regard to devolved matters. It is up to the Scottish Parliament. Why would we wish to do so?

[Lord Maxton]

I am trying to follow the noble Lord’s arguments carefully but it seems that, even with the new powers that we should be or are giving under this legislation, there will still be matters for instance in transport where we might pass legislation that will affect Scotland. I travel on a train from Euston up to Glasgow every week and back down every Monday. That is partly covered by transport legislation from this House. Is the noble Lord saying that once it crosses the border it should then be covered by legislation for Scotland?

[Lord Forsyth of Drumlean]

Well, devolution was not my idea but that seems to be what it means. You cannot have it both ways. Presumably, if we were bringing in legislation that would affect the noble Lord’s travel across the border there would be the normal consultation process. My argument is: what is wrong with letting the Scottish Parliament get on with passing the necessary legislation? If it is a devolved matter, it is a matter for the Scottish Parliament. Then we do not have a problem with the Sewel convention. Provided we retain the sovereignty of this Parliament, there is nothing whatever to stop us passing legislation in times of emergency, war or whatever else that could apply. In the Bill as presently constituted, this word “normally” is fine for a convention but ridiculous for a statute.

Having argued that this should be set down properly in the Bill, explaining how it will work as a matter of statute and not as a convention, if we were to retain the convention and were looking at what the convention would be that we sought to enshrine in statute, I would say that it is recognised that the Parliament of the United Kingdom will not legislate with regard to devolved matters. It is entirely up to the Scottish Parliament, if it wishes us to legislate, to argue for the contrary.

Of course, the great irony in this—as the noble Lord, Lord Gordon of Strathblane, indicated—is that we are legislating on a monumental scale now in this Bill without the consent of the Scottish Parliament. There is the distinct possibility, as we still do not have the fiscal framework, that the consent of the Scottish Parliament might not be forthcoming and that we might have to do it all over again. So there is a thought.

My noble and learned friend needs to look at these amendments and think about them and come back with a clause in statute that actually defines what the Government believe that the Scottish Parliament and the Westminster Parliament should do with—in the words of the noble and learned Lord, Lord McCluskey—absolute crystal clarity, so that we do not have this business of blaming Westminster any longer for legislation that was covertly supported by the Scottish Parliament. If it has that responsibility, it may very well find, as the Westminster Parliament does, that it has to be discriminatory about what it wants to put on the statute book—and it may very well find that it is no longer able to get away with sitting for a mere one and a half days a week.

Scotland Bill

Lord Maxton Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Lyell (Con)]

I am fascinated by the marvellous remarks of the noble Lord, Lord Foulkes. I was interested that he mentioned one of my great passions, which has occupied a good bit of the Scottish Parliament and is about sectarianism at the football. Indeed, a leading sheriff in Dundee pointed out that he regarded the legislation as “mince”—I hope that is not an abusive term. It came down to the fact of lip-reading whether a supporter was singing the correct words of “The sash my father wore” or other terms which might be abusive. Leaving that aside, I commend the noble Lord, Lord Foulkes, for trying to get a revising chamber for the Scottish Parliament.

The noble Lord, Lord Foulkes, was kind enough to refer to the superb Second Reading speech of the noble and learned Lord, Lord McCluskey. The noble Lord was quite tactful not to mention that the noble and learned Lord referred to sheep—that was one of the more moderate aspects. I appreciated what the noble and learned Lord had to say. One of the points he made in that the proposal is relevant to the amendment before us. It was about the standard of pre-legislative scrutiny by the committees of existing Members of the Scottish Parliament. If the noble Lord, Lord Foulkes, believes that there is a field of 92 people in Scotland who can provide a higher standard of scrutiny—quite apart from the cost and the time involved—I salute him for his optimism, but I wonder whether, with all the guidance that many of these so-called amateurs might need, he will be able to find them.

On the other hand, I look around your Lordships’ House this evening and find my noble friend Lord Dundee. When it comes to cost, I am tempted to think of the chant “Up with the wallets of bonnie Dundee”. He might be paying, or some of us might be thought to be rich enough to pay ourselves, but I am not too sure. If your Lordships would care to glance at the Second Reading speech and comments of the noble and learned Lord, Lord McCluskey, if I were a Member of the Scottish Parliament, I would repeat the wise words of the Vietnamese gentleman Do Duck Low and stay well out of the criticisms that have been quite justifiably directed in that area. I commend the noble Lord, Lord Foulkes, for his imagination and thought, but on the other hand I dread to think what the cost might be.

[Lord Maxton (Lab)]

My Lords, I remember that “Monty Python” always finished with the words, “And now for something completely different”. It used to throw my late father-in-law into a paroxysm because he could not stand “Money Python”, but we all insisted on watching it. He would think it was the end and give a great big sigh of relief, and then they would go, “And now for something completely different”, and end with exactly the same thing that they had been doing for the rest of the programme.

I have three points on this amendment. First, I support it. I did not support a second Chamber in the first place when we set up the Scottish Parliament because I felt that the powers we were giving it did not warrant a second one. Now that we are giving it extra powers, that warrants having a second Chamber as a balance to the first Chamber. Secondly, I do not believe, as my noble friend said, that the elections ought to be on the same day because there is a grave danger of the political make-up of the senate being exactly the same as the Scottish Parliament and that raises problems about what it will do and how it will be a counterbalance to the main Chamber if it is of the same political complexion. It would perhaps be more expensive to have the elections in between, but they could be on a day when other elections were taking place and, of course, if it were done my way electronically with an ID card, the cost would eventually be considerably less than at present.

Thirdly, if you elect people to a position, they will insist on having more power than my noble friend is prepared to give this senate. That is what happened in the United States. Believe it or not, the original Senate in the States was appointed and had little power; it had the same sort of powers that we have here. Once it moved to an elected system, though, it became increasingly powerful, and in the end was more powerful than the House of Representatives. That, I fear, is the danger with the senate that my noble friend is proposing: eventually you will have elections and they will insist on taking more power than the major body, which is elected by a different system.

I am a first past the post man first and foremost so obviously I would like the senate to be elected that way, along with the Scottish Parliament itself; we would not be in the fix that we are now if we had had first past the post in 2007.

[Baroness Adams of Craigielea (Lab)]

On the point about the Scottish Parliament: if there were to be a senate, does my noble friend envisage that we would still have to retain the same numbers in the Scottish Parliament?

[Lord Maxton]

That is a very good point. I look forward to my noble friend Lady Adams tabling an amendment to my noble friend’s amendment on Report. It is an interesting question: why should you have the same numbers in the Scottish Parliament if you have a senate as well?

I support what my noble friend is proposing but we have to look very carefully at it. I hope to be able to move amendments on Report.

[Lord Forsyth of Drumlean (Con)]

I have to say I am astonished that the noble Lord, Lord Foulkes, should move this amendment at this stage of the Bill. He has spent the past two years arguing against piecemeal constitutional reform and has sat uncharacteristically silent throughout these proceedings, no doubt because he believes in what the Bill is trying to do, which is to allow the Scottish Parliament to determine its own rules and provisions, including on composition and the rest. But here he is, wanting to impose an entirely new body upon it as a second Chamber, ignoring the difficulties that this House has had with the other place in resolving the issue of what you do, if you have two elected Houses, to avoid gridlock and squabbles over powers. Quite frankly, if one were going to create a second Chamber for the Scottish Parliament, which I would have thought was entirely a matter for the Scottish Parliament, it would need to be done in a way that addressed these problems. On the basis of the performance of this House, I should think that that would take at least 100 years and still not be resolved. I find it extraordinary that, with so much to do in the Bill, we should be discussing an issue of this kind.

Also, if the answer to a problem is more politicians, you have certainly asked the wrong question, particularly in the current climate. In Scotland we are overrun with politicians: we have 129 in the Scottish Parliament and 59 MPs, and our constituents have no idea who is responsible for what or who their representatives are. Add to that some people called senators, and I think that the noble Lord will complete the task, already pretty well achieved, of having the electorate treat Members of Parliament with a certain degree of contempt and as a laughing stock.

[Lord Maxton]

I have to ask the Lord whether he actually believed in being a politician, democratically elected by his constituents. At the end of the day, that is what a politician is: a democratically elected representative of the people. I would not say that more is always better, but it does not necessarily follow that more is necessarily bad.

Scotland Bill

Lord Maxton Excerpts

Tuesday 24th November 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con)]

My Lords, the United Kingdom is the most successful multinational state the world has ever known. On 18 September last year, people in Scotland voted in record numbers and by a clear and decisive majority to keep together our United Kingdom. However, last year’s referendum showed that nothing can be taken for granted; our union is precious, to be sustained and cherished day in, day out. There is no national forum more committed to protecting and strengthening the union than your Lordships’ House. Time and again the United Kingdom has shown its resilience and capacity for renewal in order to meet the needs and aspirations of successive generations. This Scotland Bill sits within that tradition. The Bill balances the strong desire of people in Scotland for more decisions to be taken in Scotland, closer to those they affect, while retaining the strength and security of remaining part of the larger UK.

I have only been in this House a short time, but long enough to appreciate the wealth of constitutional knowledge and experience in all parts of the House. This wealth is evident in the quality of those listed to speak today. I look forward to hearing what I know will be thoughtful and well-informed contributions, in particular the maiden speeches of the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Campbell of Pittenweem.

Your Lordships have already made valuable contributions, including in the recently published reports of the Constitution Committee and the Economic Affairs Committees. From the outset of this debate, I want to recognise and acknowledge with respect the strong feelings already expressed, both about process and substance. I accept that the process has been unorthodox. Then again, the events of last September were unprecedented. The very future of the United Kingdom was at stake. In those circumstances, no stone was left unturned in the defence and preservation of our country. Who among us can say honestly that, faced with the same circumstances and responsibilities of national leadership, we would not have responded with the same sense of urgency and determination?

The task now is to help Scotland move on, building on our shared values and experiences, to forge anew the close bonds of kinship and friendship and sense of common purpose and endeavour that is the glue of any successful nation state. In rising to the challenge, we have a clear choice. We can continue either to pump things up, or we can try to calm things down. I confess to being a firm supporter of the second approach, not least because I am certain that those who want separation would prefer the first.

I hope that we all share a strong desire to work together to bring our nation together, and for those of us who believe passionately in the union to be united in delivering, through this Bill, the promises made to the people of Scotland.

[Lord Maxton (Lab)]

Is the Minister saying that the vow was the way in which the referendum was won? My view is that the vow was not necessary; the no vote would have won anyway.

[Lord Dunlop]

Fundamentally, I think it was the economic arguments that were decisive in the referendum. When the country is at stake, you want to do everything possible to maximise the no vote. That was what was done.

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[Baroness Liddell of Coatdyke (Lab)]

My Lords, I am delighted to follow the noble Baroness, Lady Goldie. She and I were a double act during the referendum and spread fear throughout the land. I shall take up one of her final points. She talked about faith and trust in the process and the vow, or the promise, or whatever you call it. I agree that Ms Sturgeon will be cracking open the champagne bottle, but whether we pass this Bill or not, she will be cracking open the champagne bottle because the one thing the SNP is very good at is whingeing. It has raised it to an Olympic sport.

I believe that a promise is a promise and should be kept, but there is something that overrides that, and it is the well-being of the Scottish people—and, indeed, the people of all of the United Kingdom. It should not be above our capabilities to sort this and get a move on with the fiscal framework. Contained within this, there are a number of traps that could cause huge damage to the Scottish economy and therefore to the Scottish people, but, as was pointed out in my noble friend Lord Hollick’s excellent speech and in the excellent document from the Economic Affairs Committee, there are real threats to the performance of the United Kingdom economy. I shall pluck one from the air: borrowing rights and borrowing costs. If they are not resolved, we could find ourselves in a Greek situation: we could be into the Varoufakis school of economics. I apologise to the noble Lord, Lord Lamont, who I know is a friend of Mr Varoufakis.

The faux outrage that we have had from the SNP in relation to the powers in the Bill was absolutely predictable, and it will wish to keep it going because what it is most interested in is process. The longer we keep on at process, the less we look at competence. I will come on to some of the competence issues later. The Scottish Government do not want this legislation on the statute book before the next election because if it is, they will have to say what they are going to do with it. They have powers from previous Acts that they have not used. So there are issues here which we need to address in Committee, but there are some which the Scottish people need to be made aware of because the constant undertone of whingeing and complaint drowns out those who are raising real concerns about the competence of the Scottish Government.

[Lord Maxton]

I entirely agree with what the noble Baroness has said. Will she make it quite clear that the SNP is interested only in an independent Scotland, not in devolution in any form whatever?

[Baroness Liddell of Coatdyke]

I agree with my noble friend and will come back to that point later. The debate on the fiscal framework is interesting, particularly the intervention by Professor Anton Muscatelli, who is no fan of those of us on the union side. The work by him and by the Economic Affairs Committee, and some of the comments from the Scottish Government, reveal that the Barnett formula, and the process we have had up until now, delivers the best possible deal for Scotland. It is interesting that there is now back-tracking, with people saying, “We are going to get less”, or, “We could get less” as a consequence of losing chunks of the Barnett formula. This makes the case that we were all making during the referendum campaign. The SNP was trying to get the Scots to walk away from that very formula.

The independent Institute for Fiscal Studies says that the real significance of the fiscal framework is the no-detriment deal. I will get this in before the noble Lord, Lord Forsyth, does. That deal is,

“unworkable and will simply create ongoing disputes”.

I would take this one stage further: you have to define what detriment is. You cannot conclude that something is detrimental until you have set out the parameters of what detriment means. The overall deal gives the Scottish Government the power to design a significant part of the welfare system and control income tax. We have to reflect here, in the short term, on issues of competency, because there are impacts for all of the UK and how we are perceived internationally—and the omens are not good.

This is one of the reasons why we have had such histrionics from the other place about this legislation. Audit Scotland has already revealed that the Scottish Government are running a deficit: an underspend of some £350 million. This is at a time when our health service and education system are underperforming and crying out for money. Speaking as somebody who has been a Finance Minister, it is an even greater sin to have an underspend than an overspend, because it means that you have not done your planning properly and it raises issues of competence or cynicism. What is more, we have never been given a proper explanation of why previous powers have not been used. We also have lots of examples of how money has been misspent. In the past week, there were two cases of IT systems that are not even going to be used because they were so badly specified.

The performance of individual departments within the Scottish Government also gives me real cause for concern. Many Scots are really concerned about what is happening with Police Scotland. We have had some terrible tragedies recently. I was quite astonished to discover that the Justice Minister had not met the Chief Constable for four months. That is a shocking statistic and I am really concerned about it. We have 2,000 fewer police staff in Scotland.

The other area I have a concern about is one that we in Scotland have always been extremely proud of: our health system. The headlines may be about people dying on trolleys, but behind that there has been a 0.7% fall in real-terms spending on NHS services and new hospitals in Scotland over the past six years. Bed blocking has increased from 200,000 in 2011 to more than 612,000 last year because of a lack of community support, 71% of vacancies in accident and emergency staff are unfilled for six months and 2,000 NHS nursing jobs were cut in Scotland when Nicola Sturgeon was Health Minister.

I am a proud bus driver’s daughter from Coatbridge. It is a coincidence that I am standing behind my noble friend Lord Reid of Cardowan as both of us went to the same school and both of us got our opportunities because we were given a good Scottish education that allowed us to go to university. The gap between Scotland’s most and least deprived children stands at 12% in reading, 21% in writing and 24% in arithmetic. There are 4,000 fewer teachers in Scotland and the figure that really sickens me is that fewer people from poor homes in Scotland are now able to go to university—down at less than 10% when it is more than 12% in the rest of the United Kingdom. That shames Scotland and it must be put right.

I suspect that many Members of your Lordships’ House would not be aware of the fact that the budget for bursaries and grants in Scotland has been cut by £40 million and that the total value of student debt in Scotland stands at almost £2.7 billion. It is the SNP Government’s biggest financial asset. That is absolutely shameful. Against that record of incompetence we have to look at agreeing the legislation in this House without knowing the detail of the fiscal framework.

Many of us in this House are a bit long in the tooth. We should be able to come up with ways to examine the fiscal framework in time to meet the promise before the legislation is enacted. If we cannot see the detail of the fiscal framework—if we cannot see the workings, as they used to say in primary school—if the Government would be prepared to release to us the minutes of the discussions between the UK and Scottish Governments, we would at least have a flavour of where it was going.

The noble Baroness, Lady Goldie, referred to the jollity that there would be if this Bill was not passed. In the other place there was a lot of criticism from the SNP Benches about how bad this legislation was. Yet did they put down amendments? Did they vote on those amendments? One very important amendment that my noble friend Lord McAvoy referred to was about abortion being devolved to the Scottish Parliament. They put down an amendment on that because they support it. They did not put in tellers. What could be more cynical than that? You have the amendment, you have the debate but you run away at the final hurdle because you are frightened of the nature of the debate that it will create.

I apologise that I have taken longer than the advisory time. As noble Lords may gather, I feel very passionately about this. The noble Lord, Lord Dunlop, referred to the fact that he listened to the results on the night and heard the noble Lord, Lord Forsyth. I listened to the results outside Stirling—Stirling in South Australia. The next day, when I went into shops, as is my wont, people would come round the counter when they heard a Scottish accent and shake hands and say, “We are glad that Scotland is part of the United Kingdom and will continue to be part of it”. If we muck this up, that is not going to be the case.

I will shut up now and look forward to the noble Lord, Lord Campbell of Pittenweem—the second most beautiful place in Scotland after Coatdyke—and I very much look forward to hearing the noble Baroness, Lady McIntosh.

--- Later in debate ---

[Lord Maxton]

My Lords, it is a pleasure to follow the noble Earl, Lord Dundee. Before he became an earl, he was actually the Tory candidate in the famous Hamilton by-election in 1978. Of course, he bears a very famous name in that, in 1924 or 1925 I believe, one of his distant ancestors—standing as a prohibitionist —defeated Winston Churchill in Dundee.

I too congratulate the two maiden speakers, the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Campbell of Pittenweem—or Ming; I have known him for a very long time. He has had three distinguished careers: first, as an athlete; secondly, at the Bar, where he was a very distinguished lawyer; and thirdly, in politics—and I hope that career will continue. He also had a fourth one; I think I am the only person in this House who can claim to have played rugby against the noble Lord, Lord Campbell. He always accused me of being a dirty player, and he was not as distinguished on the rugby field as he was elsewhere—I am sorry he is not here to hear that.

Almost everything I wanted to say has been said. I will concentrate on two aspects. First, we must stop bringing together devolution and nationalism; they are not the same thing. We must emphasise and keep emphasising that point. At the end of the day, devolution is a democratic process—and I am not saying that the SNP is not a democratic party. That is why some of us campaigned for devolution. I know that some people opposite opposed it, but the fact is that we were in favour of devolution because Scotland had become out of sync. Therefore, it was right that we devolved power to a Scottish Parliament. The alternative was to get rid of Scotland, to be honest. When my late friend Donald Dewar said that devolution was a process—although I gather it has been denied that he ever said it—what he meant was that democracy should go below the level of the Scottish Parliament to local authorities and local communities, and that is what democracy means. It means people taking decisions at the point at which they want and need to take them. Devolution has to be a two-way process. Some powers should perhaps be taken back from the Scottish Parliament and given back to this Parliament, or even given to the European Parliament; I do not know. The fact is that devolution is a two-way process and it has to be.

Secondly, we have had a long argument and, quite rightly, a discussion about fiscal autonomy and the fiscal arrangements being made by the two parties, and a large part of me agrees with everything that has been said about that. But a part of me also says that it does not really matter, because whatever the fiscal arrangements this Government come to with the Scottish Government, at some point or other the Scottish Government are going to say no. What the SNP wants is a fight. It does not really care what the arrangements will be. It just wants a grievance. What it wants is an independent Scotland. We have to stop appeasing it, and to some extent this Bill is an appeasement for the SNP. That is what the vow was; it is what the Smith commission was, to some extent. It was an attempt to appease the Scottish nationalists in their demand for the nationalist case. We have to stop that. We have to start fighting them.

We might start fighting them by asking a very simple question: why do you want to separate from the rest of the United Kingdom? What is it that divides us? I speak with an English accent because I was brought up in Oxford. My mother and father both spoke with Glasgow accents, Scottish accents, because they were brought up in Scotland. My brothers and my sister live in England. My nieces, nephews, grand-nieces and grand-nephews live in England. They do not consider themselves Scottish. My brother may consider himself Scottish, but he does not really consider himself a Scot. At the end of the day, I am typical of many people. What is it that divides us from the rest of the United Kingdom? The answer is: nothing. Religion and language do not divide us. There is not even a natural frontier between England and Scotland any more. Until we start asking those basic questions of, “Why do you want to go? What is it that divides us?”, and start fighting nationalism, I fear that Scotland may very well slip uncontrollably down the route towards becoming an independent country, which I personally would regret and I will fight all my political life—what is left of it—against.