Scotland: Referendum

Lord McAvoy Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, the Government have made it clear that they wish the referendum debate to be well informed. That is why we have embarked on the Scotland analysis programme. The first paper on the legal implications and the legal basis of independence was published last month. There will be future papers, including one on currency and financial regulation, which we hope will be published in the near future. It is important that we have a well informed debate, and certainly the United Kingdom Government, through these papers, are determined that we should have just that.

[Lord McAvoy]

My Lords, the SNP Government have claimed that there will be an increase in oil tax revenues post-independence. However, today we hear from the Centre for Public Policy for Regions that, contrary to what the Scottish SNP Government claim,

“to suggest some sort of new oil-tax revenue boom is about to emerge is not readily supported by the evidence”.

Does the Minister agree that the Scottish SNP Government need to be straight with the people of Scotland about the facts of the decision that they have been asked to make in 2014, so that we can get on with making the case for why Scotland is “better together”?

[Lord Wallace of Tankerness]

My Lords, I entirely endorse what the noble Lord has said about the importance of getting clear facts. He is right. I have seen the report published today by the Centre for Public Policy for Regions, which makes the point about the uncertainty of the oil revenue. That uncertainty was underlined by the Office for Budget Responsibility in its report last week. We hear representatives of the Scottish Government telling us that we are on the cusp of another oil boom, but in the Cabinet paper that the Finance Secretary presented to the Scottish Government last year, he said that there is a,

“high degree of uncertainty around future North Sea revenues, reflecting considerable volatility in production and oil prices”.

It would be useful if they said in public what they say in private.

Dr David Livingstone

Lord McAvoy Excerpts

Wednesday 27th February 2013 Lords Chamber

[Lord McAvoy]

My Lords, Dr David Livingstone was born in the town of Blantyre, which I had the honour and privilege to represent in the House of Commons. I join in the congratulations and thanks for all the celebrations planned. However, just a few years ago, the David Livingstone Centre in Blantyre, to which the noble Lord, Lord Steel, referred, was in danger of closing, and it was South Lanarkshire Council which took the lead by involving the National Trust and other agencies so that the centre is now thriving again. Will the Minister join me in recognising the role of South Lanarkshire Council in this, particularly that of the leader, Councillor Edward McAvoy?

[Lord Wallace of Tankerness]

My Lords, in this particular case, I believe that tributes to South Lanarkshire Council are deserved. I am aware that it took those steps. I think that I am right in saying that South Lanarkshire Council also plays an important role in the Scotland-Malawi Partnership. The University of Edinburgh calculated that up to £30 million in terms of expertise, time and money is contributed by those who are partners in the Scotland-Malawi Partnership.

Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013

Lord McAvoy Excerpts

Tuesday 26th February 2013 Grand Committee

[The Earl of Mar and Kellie]

My Lords, I am perfectly happy with what the Scottish Parliament has legislated for and I am happy with the order. I should like to record my surprise at the strategy of going for a national police force in Scotland. It certainly has been the tradition in Scotland and across the whole of Britain as an island that policing should be organised locally. At home, I have maps which point out where the Alloa borough police force was: it had a chief constable, a sergeant and 10 constables. The tradition in Britain has been one of local policing.

I also acknowledge that in another part of English-speaking Europe, in Ireland, that it always has had national policing. After 1922, the Royal Irish Constabulary was replaced by two national forces—the RUC and the Garda Siochana. I want to record the fact that I am surprised by the strategy which apparently we want to have in Scotland, while I am very happy about us having a strategy in Scotland.

[Lord McAvoy]

My Lords, the Opposition support the measure, which as yet is another example of continuing devolution. I will not pay tribute to the Minister’s staff today because the last time I praised one of them, she mysteriously vanished and we have never seen her again. I do not know quite what he has done to her but I hope that she survives and makes a further appearance. The noble Earl, Lord Mar and Kellie, has mentioned the Scottish tradition of policing but we all have to recognise devolution and its implications. There was a consultation process that was very supportive and there did not seem to be any dissenting voices to the proposal. As the Minister rightly says, this is necessary after the 2012 Act. I cannot quite remember the context in which he mentioned torture, but I do not think that that has relevance on this.

There are comparisons with other nations and regions of the United Kingdom—we all understand the Northern Ireland one—but the Scottish Government have considerable powers and I can understand why there are reservations about having a national police force against a background of the police always being regionally organised. I was on the police and fire committee of Strathclyde regional council, which has a very good operation. The Minister mentioned that there were 14 abstentions in the Scottish Parliament—I presume that that was his own party, or did the Liberal Democrats vote against? I welcome the conversion and hope that we can have further co-operation like that.

Although the report is rightly subject to scrutiny and questioning, I want to develop a wee bit further the principle of disaffection. As a trade unionist, the word “disaffection” towards anything raises questions. It has been mentioned that some of the clarification that the Minister’s staff was able to pass on was on questions asked by the committee regarding who could be charged with disaffection. The initial reply seemed to indicate that only certain police could be charged with disaffection, but further clarification suggested that it could apply to a member of the public as well. Although I totally accept the Minister’s point that the Government do not envisage anyone being charged with this wrongly, unfairly, or whatever, he will know better than I do that legal history is full of people who have been prosecuted for offences for which at the time it was indicated they would not be prosecuted. So, I would like further clarification on disaffection because the police are different. It is acknowledged that they are not allowed to join trade unions. We have to have law and order and a legal system, so it is right that in case anybody tries to suborn or undermine the police in carrying out their duties, the defence should stay in.

I press the Minister to go a bit further in giving us assurances that no “innocent bystanders” who have had a pint too much on a Saturday night and preach treason—I have certainly done that myself a few times with pints of soda water and lime, I hasten to add—will be prosecuted. I seek assurances that ordinary members of the public, letting off steam—to use one of the expressions mentioned—will not be liberally prosecuted. I will leave it at that and hope that the Minister can give us some of those answers. That will reassure me.

[Lord Wallace of Tankerness]

My Lords, I thank both my noble friend Lord Mar and Kellie and the noble Lord, Lord McAvoy, for their contributions to the debate. I note the concerns of my noble friend with regard to the establishment of a national police force. He will be aware, as I indicated in opening, that our Scottish Liberal Democrat colleagues in the Scottish Parliament voted against this. At one point the noble Lord, Lord McAvoy, suggested that the 14 were Liberal Democrats—if only we had 14 Members in the Scottish Parliament. It was five Liberal Democrats and one Green who voted against and 14 Conservatives who abstained. The point is not about whether we support this policy intent, but that the Act was properly passed by the Scottish Parliament, and by a large majority. It is very consistent and in the spirit of the devolution settlement that this Parliament, through the use of a Section 104 order, should give effect to the intentions of the Scottish Parliament in areas where, because of its competence, it was not able to do so. It is in that spirit of making the devolution settlement work that we bring forward this order.

Scotland Act 2012 (Consequential Provisions) Order 2013

Lord McAvoy Excerpts

Thursday 7th February 2013 Grand Committee

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

My Lords, the Scotland Act 2012 makes provision for a new route of appeal to the Supreme Court for compatibility issues. As noble Lords may recall from our debates on the Scotland Bill, compatibility issues are questions raised in Scottish criminal proceedings about European Convention on Human Rights issues and European Union law issues. These would previously have been devolution issues. The Scotland Act 2012 also makes provision for compatibility issues to be referred to the Supreme Court in certain circumstances.

The draft order is made under Section 42 of the 2012 Act, which allows for provision to be made that is consequential on the Scotland Act 2012. The draft order makes consequential amendments to legislation to ensure that compatibility issues are properly taken account of in the criminal justice system. The draft order is subject to the affirmative resolution procedure because it makes amendments to an Act of the UK Parliament and an Act of the Scottish Parliament, and it is usual for such amendments to be subject to the affirmative procedure.

The draft order amends the Legal Aid (Scotland) Act 1986 to enable criminal legal aid to be provided in relation to compatibility issues. Section 21 sets out the meaning of “criminal legal aid” for the purposes of the Act and this includes appeals and references to the Supreme Court of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 21 so that criminal legal aid also includes appeals and references to the Supreme Court of compatibility issues.

Section 25AB of the Legal Aid (Scotland) Act 1986 makes provision for criminal legal aid in connection with appeals and references to the Supreme Court in respect of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 25AB so that it also makes provision for criminal legal aid in connection with references and appeals to the Supreme Court in respect of compatibility issues.

The draft order also amends the Criminal Justice and Licensing (Scotland) Act 2010. Sections 132 to 140 of this Act make provision for the disclosure of information by the prosecutor where a person convicted of an offence seeks to appeal against any aspect of that conviction. The draft order amends Section 132 so that the definition of appellate proceedings includes an appeal to the Supreme Court against the determination of a compatibility issue. This ensures that appeals in respect of compatibility issues will be treated in the same way as appeals of devolution issues in criminal proceedings for the purpose of disclosure of information by the prosecutor. The draft order, if approved by each House of Parliament, will come into force on 22 April 2013—the same day as the other orders relating to compatibility issues.

For completeness, it is perhaps worth mentioning that other consequential amendments are needed in relation to compatibility issues, but as these amend secondary legislation they are subject to the negative resolution procedure and are included in the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013. This order has been considered by the Joint Committee on Statutory Instruments, which made no comment on it.

Transitional provision—that is, provisions that are not included in the draft order that we are debating—has been made in respect of compatibility issues to ensure that the provisions of the 2012 Act take effect as quickly as possible. This will prevent two different criminal appeals systems operating in Scotland for a lengthy period and allow the benefits of the new system to take effect as quickly as possible. The transitional order achieves its aim by converting devolution issues relating to ECHR or EU matters in criminal proceedings that have been raised before 22 April 2103 into compatibility issues. The proceedings will then continue under the new compatibility issue procedure.

The Scotland Act 2012 also makes amendments that impose a time limit of 28 days on applying for permission to appeal a compatibility issue or a devolution issue in criminal proceedings to the Supreme Court. An application for permission must be made within 28 days of the date of the High Court’s determination. If that permission is refused, an application to the Supreme Court for permission must be made within 28 days of the High Court’s refusal. Both limits may be extended by the respective courts, where this is equitable given all the circumstances.

Again, transitional provisions—not included in this order—have been made in respect of existing devolution cases in criminal cases where there is a right of appeal. The time limit of 28 days will apply from 22 April this year, as opposed to the date on which the devolution issue was determined or when permission to appeal was refused.

This will also apply to devolutions that are converted into compatibility issues. The Government have been working closely with the Scottish Government in making arrangements for the commencement of these provisions in the 2012 Act. The Scottish Government have also discussed the arrangements with various bodies including the Supreme Court, the Crown Office, the Law Society of Scotland, the Faculty of Advocates, the Society of Solicitor Advocates and the Scottish Legal Aid Board. Both Governments are working together to publicise the transitional arrangements being made regarding compatibility issues and the changes made to the devolution issues by the Scotland Act 2012 so that practitioners are aware of these. I commend the order to the Committee and I beg to move.

[Lord McAvoy]

First, I thank the noble and learned Lord, Lord Wallace of Tankerness, for his very full explanation. I also thank the noble and learned Lord’s staff for their courtesy and co-operation. They are so polite that they even supplied me with questions to ask him. He has, however, dealt with these issues in his speech.

We support this continuing step on the path of devolution: it is a fine example of how the two Parliaments can work to make sure that devolution is furthered in a moderate, non-contentious way. I hope that continues and that comparatively small issues such as this order and the way it has been implemented will play a part in indicating to the people of Scotland that, when it comes to a referendum, they should vote very firmly to stay within the United Kingdom. I have nothing further to add, unless the noble and learned Lord’s staff have supplied him with questions to ask me. I thank all concerned for their courtesy.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord and endorse his sentiments about the importance of showing how the two Parliaments and two Governments can work together in the interests of the people of Scotland.

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord McAvoy Excerpts

Wednesday 16th January 2013 Lords Chamber

I also hope my noble and learned friend will put Lord Steel’s mind at rest. He raised the question of the currency, and said that Scotland would have to look to the Bank of England in the event of independence. I hope the Government will make it absolutely clear that should Scotland wish to separate from the rest of the United Kingdom, it will not be allowed to use the same currency as the rest of the United Kingdom. If it did, it would be bad for Scotland and it would be bad for the rest of the United Kingdom. So let us lance that boil now. I hope my noble friend will make it absolutely clear that Scotland will not have the same currency in the event of a yes vote.

[Lord McAvoy]

My Lords, this has been quite a lengthy debate. Nevertheless, the contributions have been very weighty; there is much knowledge and wisdom in this House. I would like to draw your Lordships’ House back to why we are here. We are here because the Scottish National Party won an electoral mandate at the previous Scottish parliamentary election. I do not like it but I accept the result. It has the right to support and advocate a referendum. We in the Labour Party support this order and hope to get into the debate as soon as possible, rather than be distracted by the many issues that have been raised today.

The noble Duke, the Duke of Montrose, mentioned an ad hoc organisation that advocated devolution. The Labour Party, the Liberal Democrat Party, and almost the whole of civic Scotland joined that ad hoc organisation. The difference between what happened then and what is happening now is that there was a broad consensus throughout Scotland about the need for a Scottish Parliament. The Labour Party supported that and, with the help of the Liberals and others, we brought about devolution and the installation of a Scottish Parliament. As soon as you devolve power to the Scottish Parliament, that power is there and it would be foolish to argue and quibble about this and that when it clearly has a mandate and the democratic right to do what they are doing, within generally accepted conventions.

A number of your Lordships have mentioned, quite rightly, the flaws within the deal that came about between the Prime Minister and the First Minister. We feel that one or two things could have been negotiated a bit more firmly. Having said that, the deal has been made, that is what we have, and we should move on from that. Nevertheless, we should note some points. For instance, the Scottish Affairs Committee quite rightly said in its report last week that decisions in the Scottish Parliament should be achieved by consensus and not simply through the use of the SNP’s majority. I keep hearing the phrase “gold standard”. The consensus that we achieved in the 1980s over the issue of the governance of Scotland should surely be the gold standard. I do not want to denigrate anyone’s personality on this, because that is a distraction that will only damage the cause of those of us who support the union.

There are a lot of issues, such as that of granting votes to 16 and 17 year-olds. The Scottish Parliament has the power to do that. There should be a debate about it, but it should not be an issue that prevents or distracts us from scrutinising this order.

On campaign finance and the wording of the question, the key phrase should be that the Scottish Government cannot be the referee and a player. Surely the Electoral Commission will act as an independent overseer of that process?

The point so ably made by my noble friend Lord Reid of Cardowan is that the Scottish people are not exactly backward at coming forward. I do not think we will be easily fooled; we will spot any chicanery or jiggery-pokery that may come from any party during this process. Sometimes, we in the political world can underestimate the acumen of the public, who keep an eye on politicians.

The wording of the question should be clear, unambiguous and thoroughly tested by the Electoral Commission. Like others, I should like to see the Scottish National Party commit itself to accepting the decision of the Electoral Commission vis-à-vis the wording. The noble Lord, Lord Empey, and other noble Lords who mentioned this were right: if we have bitter disputes over this, the bitterness will continue and the result will not be regarded as legitimate. It is absolutely essential that we get legitimacy for that result, whatever it is, and that it should be accepted by all.

A number of your Lordships have rightly mentioned the quality of the contribution and amendments of the noble Lord, Lord Forsyth. A number of my colleagues have stated they agree with much of his position. As I am a bit of a bureaucrat, one of the things I am concerned about is the practicality of the timeline. It is clear that, although October 2014 seems a long time away, the processes that need to be gone through before then are nevertheless considerable and time-consuming. If any of these timeline targets are not met, the process will be delayed, which would be dangerous. It will seem that obstruction by Westminster has caused the delay, which would be fatal to the cause of those of us who support the union.

Devolution means devolution. I am afraid that is sometimes hard to accept and something that we do not like. The Scottish people decided that they wanted devolution. I accept it, and it should be accepted.

My noble friend Lady Liddell made the point—far better than I am making it so far—by warning that we should not allow ourselves to be distracted by all the niggly points that have annoyed us. We have picked fault here and picked fault there. I do not say that the niggles, doubts and criticisms are not justified, but let us solve them; let us deal with them, get them out of the way and get on with campaigning. The people of Scotland are looking for a campaign where the issues are discussed, not individual personalities. We can then go to the real core of what would happen to Scotland if it separated from the rest of the United Kingdom. I do not mean that as a negative point or to frighten the people of Scotland by saying that Scotland cannot or would not exist without the rest of the United Kingdom. Of course we could: we could be economically viable and we could be a separate state. But we should say to people that we do not want to be separate—to separate from England, Wales and Northern Ireland, a union that has served us all well, especially in two world wars.

Again, I echo my noble friend Baroness Liddell. Let us get these issues dealt with. Yes, let us deal with them and debate them, but the sooner we get on to this campaign the better.

[Lord Wallace of Tankerness]

My Lords, I thank all those who have taken part in this debate. I thank also my noble friend Lord Forsyth for moving his amendment which has stimulated so much debate, although I suspect that, even without it, we would have had a considerable debate on the issue. I understand from my noble friend Lady Garden that there have been some 20 contributions, including an Englishman, a Welshman, a Northern Irishman and, regrettably, only one woman.

Scotland Act 1998 (Modification of Schedule 5) (No. 2) Order 2013

Lord McAvoy Excerpts

Thursday 13th December 2012 Grand Committee

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

My Lords, I will provide the Grand Committee with a brief summary of what this order seeks to achieve. The order is made under Section 30(2) and (4) of the Scotland Act 1998; in other words, it is a Section 30 order, like that which seems to have dominated much of the political discourse in Scotland over the past 12 months, but not the same one. Section 30(2) provides a mechanism whereby Schedule 4 or Schedule 5 of the Scotland Act can be modified by an Order in Council, subject to the agreement of both the UK and Scottish Parliaments, while Section 30(4) enables the modification of other enactments where that is considered necessary or expedient in connection with other provision made by the order.

This order will amend Section F1 in Part 2 of Schedule 5 to the Scotland Act 1998, which I shall refer to as the social security reservation. It will also give certain pre-existing devolved enactments—those conferring functions on Scottish Ministers or local authorities—effect as if this new version of the social security reservation had been in place when those enactments were passed or made, rather than the version of the social security reservation that actually existed at that time.

The Welfare Reform Act 2012, which I will refer to as the 2012 Act, contains provision to abolish the discretionary Social Fund. It is the intention of the Department for Work and Pensions to commence Section 70 of the 2012 Act from 1 April 2013, subject to certain savings and transitional provisions. Thus, community care grants and crisis loans for living expenses will be abolished from that date.

Although no provision for any assistance to replace community care grants or crisis loans for living expenses is provided within the 2012 Act, it is the UK Government’s policy that the new assistance will be delivered in England using existing powers in the Local Government Act 2000 and that it will be for the Scottish and Welsh Governments to decide on what new assistance will be provided in Scotland and Wales respectively.

However, the social security reservation means that the Social Fund and all its elements are reserved to the UK Parliament. Therefore, new arrangements cannot be legislated for, or indeed provided for, by the Scottish Parliament or Scottish Government within their existing competence.

This Section 30 order will provide a new exception to the social security reservation to widen the legislative competence of the Scottish Parliament so that it can provide newly created assistance to those members of the community in Scotland who might previously have applied for a community care grant or crisis loan for living expenses. Payments made out of the Social Fund will remain reserved, as will other existing social security benefits.

Although in the future the Scottish Government may decide to legislate to provide new assistance to those members of the community through primary legislation, it is the current intention of the Scottish Government that local authorities should provide newly created assistance for an interim period of two years. To provide this assistance, those authorities will use their power under Section 20 of the Local Government in Scotland Act 2003, which is known as their power to advance well-being. However, Section 20 of that Act, as it was enacted by the Scottish Parliament, does not presently give local authorities a power in an area for which the Scottish Parliament could not legislate when the 2003 Act was passed. There may also be other Scottish ministerial or local authority functions that are relevant to the exercise of the new area of devolved competence that similarly need to be expanded. We therefore believe it expedient to modify any relevant devolved enactments made prior to this order to enable the Scottish Ministers and local authorities to use such functions to provide this new assistance. My Lords, this order makes that modification.

I assure noble Lords that funding is being transferred from the Department for Work and Pensions to the Scottish Government to allow that this new assistance be provided. Based on figures provided by the Scottish Government, set-up funding of just over £2 million has been agreed between the two Governments. Agreement in principle has been reached and we expect the transfer of these set-up funds to be completed shortly.

Within the current spending review, the Department for Work and Pensions has been allocated £178.2 million for the discretionary Social Fund. This allocation will form the programme funding for the new provisions in England, Scotland and Wales, with £178.2 million per annum being apportioned nationally. In 2013-14, programme funding of just under £24 million and administrative funding of just over £5 million—which includes funding for processes that may be put in place locally to review individual awards of funding— will be transferred to the Scottish Government. In 2014-15, programme funding of the same amount and administrative funding of just over £4.5 million will be transferred. A settlement letter outlining the indicative allocation was issued to the Scottish Government on 6 August 2012.

This Section 30 order is necessary as a result of the 2012 Act and the UK Government’s policy that it is for the Scottish Government to decide what new assistance will be provided in Scotland following the commencement of Section 70 of the 2012 Act on 1 April 2013. This order demonstrates the Government’s continued commitment to work with the Scottish Government to make the devolution settlement work. I hope that the Committee will agree that this order is an appropriate use of the powers in the Scotland Act. This draft order was debated in the House of Commons on 11 December and was subsequently approved on 12 December. The draft order was also debated in the Scottish Parliament on 11 December, where the Welfare Reform Committee resolved to recommend the draft order to the Scottish Parliament. I commend the order to the Committee. I beg to move.

[Lord McAvoy]

My Lords, once again I thank the Minister and his staff for the admirable help and support that they have given me in looking at this legislation. My admiration for the noble Lord’s organisational abilities is somewhat dented this afternoon because he was not able to get the order higher up the Order Paper. In addition, he does not seem to have arranged heating in this Room. I will move rapidly on.

This order is a result of the Calman commission set up by the Labour Government to look at further areas where devolution could be brought in. The Minister has explained it perfectly well and I have no intention of repeating all that. However, I have a couple of questions; perhaps, as an amateur at the Dispatch Box, I will ask the wrong questions but, as ever, I will try to work it out.

The noble Lord said, if I picked it up right, that £178.2 million was a proportionate share. Is that a Barnett-formula proportionate share? What is the connection to the money that has been spent in Scotland so far? Is there any relation in the Barnett formula calculation to the calculation of how much will be paid out? If there is a difference in one, it would therefore seem to be cash-limited. Is it that every case will be looked at, or that once the money is finished the allocation is finished? Does that mean that no more cases can be looked at?

We are in a rather fluid situation in Scottish political life at the moment because of the forthcoming referendum. Maybe my mother well named me “Thomas”—I do not know—but what guarantees are there that the cash transfer to the Scottish Government will be spent on these matters? In addition, is there any way that the Scottish Government can tamper with the money that has been allocated notionally—and hopefully practically—for local authorities in Scotland and not give them their full allocation? Local authorities in Scotland have quite justified concerns about how the Scottish Government allocate money to them. We dearly need to know whether there is any way, once the money is passed over to the Scottish Government, that we in Westminster have any avenue or platform with which to raise concerns. I may be chasing a hare that is not running, but if the Scottish Government do not provide all that money straight to their local authorities for the set-up costs, is there anything that we here can do about it? Were these safeguard issues discussed for the integrity of the money being spent for the purpose that we at Westminster are allocating it? Was there any mention of these two or three questions—on the finance, the proportion and how it is to be monitored, and safeguards to ensure that local authorities get all the money that is meant for them—during these discussions?

Partnerships (Prosecution) (Scotland) Bill [HL]

Lord McAvoy Excerpts

Tuesday 4th December 2012 Grand Committee

[Lord McAvoy]

My Lords, I will reply to as many points as I can. First, I place on record again my thanks to the Minister and his staff for keeping in touch. I am sorry that I did not make the meeting; I was called away on Whips’ business. However, I learnt a lot from people who were there, which will help me today.

To be on the safe side, I had better declare an interest. I am in a business partnership. The company I am in partnership with owns a public house in Scotland. That does not make anyone a millionaire these days. The other partners are my wife and son. Knowing them so well, I have no difficulty in envisaging that any of their liabilities would be mine.

Like many other colleagues here, I feel a certain amount of diffidence at being in a room with so many who are in the legal profession. The only thing that hints at that diffidence is my astonishment that there has been this loophole in the law. It is unbelievable that politicians and the legal profession allowed the loophole to be there—although, as the noble and learned Lord, Lord Fraser, said, there are doubts about why charges were not laid. Like others, I pay tribute to the Scottish Law Commission and to the Law Society of Scotland for their briefings and for the information that they have made available. We in Scotland are lucky to have them. I agree with the comment of the noble Lord, Lord Stephen, that the situation does not reflect well on Scottish justice.

The noble Duke, the Duke of Montrose, asked about the limits on liability when a partner dies. I, too, await the response of the Minister to that question. There is nothing like having a local view of how things are regarded on the ground. The account from my friend and colleague, my noble friend Lady Liddell, about the effect on relatives and the community in Lanarkshire, brought home even after a gap of years how much devastation the tragedy brought and still brings to the relatives of those who were there.

Like the noble Lord, Lord Kerr of Kinlochard, I would like to join my noble friend Lady Liddell’s daft questions club. I am sure that some have been answered—probably I did not understand either the question or the answer in the language that was used—so I, too, will ask a couple of questions. I was briefed on one question, which was also asked by the noble Lord, Lord Stephen. The Minister said that the incoming partner would not be criminally liable. Does that mean that the incoming partner will be liable for the fine? What is the share of liability if a fine is incurred? What is the intention of the Bill?

The noble and learned Lord, Lord Cameron of Lochbroom, made a forensic analysis of the Bill that I found helpful because I could understand the language that he used. The noble Lord, Lord Kerr of Kinlochard, talked about the extension of criminality. These questions are there to be asked. I will also ask about the dissolution of partnerships in Clause 2, which deals with proceedings against a former partner. The Minister mentioned the Law Society, but I was not quite sure of his answer, which is why I am repeating the question. A person may not be prosecuted for an offence when a partnership has been prosecuted for and acquitted of the same offence. There is no reciprocal clause that prevents the prosecution of a partnership where an individual former partner or partners have been prosecuted for and acquitted of the same offence. I cannot get my head around that. I have already mentioned the issue of liability in Clause 4. There must be safeguards on how that is dealt with. I look forward to the Minister’s response to the various questions from me and from other noble Lords who contributed so well.

Forestry Commissioners (Climate Change Functions) (Scotland) (Consequential Modifications) Order 2012

Lord McAvoy Excerpts

Tuesday 23rd October 2012 Grand Committee

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

My Lords, I will provide the Committee with a brief summary of what this order seeks to achieve. It is made under Section 104 of the Scotland Act 1998, which allows for “necessary or expedient” changes to UK legislation in consequence of an Act of the Scottish Parliament and subordinate legislation. This order is made in consequence of the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012, made by Scottish Ministers under Section 59 of the Climate Change (Scotland) Act 2009. For convenience, I shall refer to this as the Section 59 order.

Scottish Ministers are keen to make full use of the national forest estate in Scotland for generating renewable energy. The national forest estate is land owned by the Scottish Government and put at the disposal of the Forestry Commission. While the commissioners have powers to enter into joint ventures in Scotland for the purpose of exercising their functions under the Forestry Act 1967, these functions do not expressly include the development of the renewable potential of the land put at their disposal by Scottish Ministers.

Section 59 of the Climate Change (Scotland) Act 2009 enables Scottish Ministers to modify the functions of the forestry commissioners in or as regards Scotland where this is necessary or expedient in order to comply with their duties as regards emissions reductions or otherwise in relation to climate change. The Section 59 order amends the 1967 Act to place upon the forestry commissioners a new general duty to use land placed at their disposal by Scottish Ministers in the way best calculated to contribute to the delivery of the targets set under Part 1 of the Climate Change (Scotland) Act 2009.

However, the Section 59 order does not itself enable the forestry commissioners to use the National Forest Estate to generate electricity. The Scottish Government have indicated that because the forestry commissioners will have a duty to use land to contribute to the delivery of climate change targets, it would be expedient in consequence of this new duty for the commissioners to be able to use the national forest estate for renewable energy purposes.

This Section 104 order will modify the forestry commissioners’ functions under the 1967 Act in order to confer express powers on the commissioners to use the national forest estate for the purposes of generating and supplying electricity from renewable energy projects, thus developing the renewable energy potential of the land put at their disposal by Scottish Ministers. Of course, the generating and supplying of electricity from renewable energy projects is a reserved matter, hence the need for this order.

I can assure your Lordships that this Section 104 order will not affect the requirements under the Electricity Act 1989 with regard to consents. It will not exempt the forestry commissioners from the requirements of Part 1 of that Act.

This order is necessary or expedient in consequence of the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 and demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope the Committee will agree that this order is a sensible use of the powers in the Scotland Act, and that the practical outcome is something to be welcomed.

I commend the order to the Committee. I beg to move.

[Lord McAvoy]

My Lords, I thank the noble and learned Lord the Minister, who, as usual, has made his staff available for any advice and/or assistance. I have a slight regret about the noble and learned Lord’s ever so polite attitude because, being used to another place, I sometimes like a wee bit of aggression but I am still waiting for the Minister to show that quality.

Turning to the legislative context, where in Scotland did the push for this come from? Although I do not stay near a lot of forest, nevertheless it is quite a big issue in some parts of Scotland. Why was this initiative taken, and what was the background to it? The policy background mentions wind farms. That is not an uncontroversial issue. I was wondering how that came about.

I have always tended to suspect the reporting of consultations because it is usually in the eye of the beholder, who wants a particular result. What is the current position on the consultation? Is it completely finished or are there still ramifications because people are making complaints or expressing their support? Is it still an issue? In addition, it is stated that a number of the concerns that were expressed have been addressed. Does the Minister know the specific issues that were identified and then responded to? Can he give an indication of how the consultation was handled? Was it just an exercise from on high or was there a definite consultation?

Paragraph 10 of the Explanatory Memorandum is headed “Impact” and states:

“This instrument has no impact of a regulatory nature”,

and goes on to say that the,

“impact on the public sector is insignificant”.

The one thing missing from that is public opinion. If it was insignificant, that is fine, but if there was a reaction, it would be a crucial factor. I would like to know if there were any expressions of public opinion. Is that the reason why a full impact assessment was not produced?

Although paragraph 12 states that the:

“Forestry Commission Scotland publishes an Annual Report and Accounts which is laid before the Scottish Parliament”,

is that the scope of the accountability? I know about devolution, but is there any further scope for the Westminster Government to be consulted? In short, is the whole issue of accountability now devolved to the Scottish Parliament? Obviously this is a comparatively minor arrangement, but never the less it is right to ask questions here in your Lordships’ Chamber and thus subject the order to a bit of gentle scrutiny.

[The Earl of Mar and Kellie]

My Lords, speaking as a backwoodsman, I approve of giving explicit powers to one of the largest landowners in Scotland and thereby removing all the Forestry Commission land from the renewables area. I certainly approve of the widening of the geographic scope for renewables, especially as it takes the pressure off other areas that may be more beautiful and which are worth retaining in that context. The order considerably widens the already broad remit of the Forestry Commission, which is now far wider than its remit in 1919, which was to produce timber. The commission will now get involved with leisure, recreation, health, landscape management, footpaths, cycle paths, biodiversity, wood fuel and still, indeed, the production of timber. I support all forms of renewable energy, and especially hydro. I am pleased to see that two hydro schemes have already been identified. I would encourage the commissioners to have another look at small-scale hydro projects on the hill burns. I also suspect that they are bound to put up some wind turbines, or allow a partner to put them up.

My final point is particularly related to that. Once a site has been established, it is grid-connected pretty much for all time. It is hoped that the generating technology may well improve and something other than wind farms will come to take their place. The important point is that the sites themselves are grid-connected.

Scotland: Referendum

Lord McAvoy Excerpts

Wednesday 10th October 2012 Lords Chamber

[Lord McAvoy]

My Lords, I hoped to welcome the fact that negotiations between the two Governments on the terms of the referendum would soon be complete—but it seems that they are not. Even at this late stage, it seems that the Minister is not able to give the answers that noble Lords sought. The Government should realise that they need to make sure that there is a clear process for extending the vote to 16 and 17 year-olds, given that the law will need to be changed to allow this to happen. The UK and Scottish Governments need to set out as soon as possible the detail and timetable of how the legislation will be changed to ensure that all 16 year-olds are eligible to apply to have their names included on the electoral register. The time has long passed for the process to be concluded so that we can move on to a real debate on the future of Scotland.

[Lord Wallace of Tankerness]

My Lords, I will make clear what both Governments said last night. Following further discussions between my right honourable friend the Secretary of State and the Deputy First Minister Nicola Sturgeon, further substantial progress was made towards an agreement. They are on track for full agreement but, as I indicated, there are still details to be sorted out. The position of both Governments is that nothing is agreed until everything is agreed, but we are very hopeful that full agreement will be reached. As my noble friend said in his Question, and as the Prime Minister indicated in his speech to the Conservative Party conference today, he hopes to be able to reach full agreement with the First Minister next week.

I should make clear that there is no set franchise for referendums. Each referendum passed by these Houses of Parliament has had its franchise determined by the Bill setting up the referendum itself. I welcome the noble Lord, Lord McAvoy, to the Dispatch Box for, I think, his first time leading for the Opposition on Scottish matters, and I look forward to many more such times, not least—if we ever get there, as we hope to—on the Section 30 order. I entirely endorse his final comment that the sooner we can determine the process and get on with arguing the case as to why Scotland benefits from being in the United Kingdom and why the United Kingdom benefits from having Scotland in it, and hold up to scrutiny the rather threadbare arguments for independence put forward by the Scottish National Party, the better.