Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016
Lord McAvoy Excerpts(8 years, 8 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I beg to move that the draft order laid before the House on 22 February 2016 now be considered. The statutory instrument before us is made under Section 104 of the Scotland Act 1998 and in consequence of the Disabled Persons’ Parking Badges (Scotland) Act 2014, which I shall refer to as the 2014 Act and which makes provision about badges for display on motor vehicles used by disabled persons. These are commonly referred to as blue badges.
One of the main aims of the 2014 Act is to help tackle blue badge misuse by providing additional powers to local authorities and the police to enforce the blue badge scheme in Scotland. The 2014 Act strengthens enforcement powers, including the ability to cancel or confiscate a badge in certain circumstances, and provides for security features of the blue badge format to be approved administratively by the Scottish Ministers. While eligibility for badges, scheme administration and enforcement measures vary between Scotland, England and Wales, there is overall agreement between each of the Administrations and their respective local authorities to work together on the common parts of the blue badge scheme. This has seen the creation of a shared database, used by local authorities for the production of badges, which allows local authorities to enforce the scheme across Great Britain.
The Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016, which I shall refer to as the draft Section 104 order, will ensure consistency throughout Great Britain with regard to the validity of blue badges issued in Scotland and give full effect to the 2014 Act. This will produce certain practical results so that, for example, a badge issued by a local authority in Scotland will, for the purposes of the law in England and Wales, be in valid form if it meets the new requirements being provided for in Section 1 of the Act. This will also ensure that enforcement officers are able to confiscate badges which are being misused and have been cancelled by a local authority in another area of Great Britain.
I will now seek to set out for the Committee what the order seeks to achieve and why it is felt to be an appropriate and sensible use of the powers under the Scotland Act 1998. Section 104 of the 1998 Act provides for subordinate legislation to be made by the UK Government which contains provisions that are necessary or expedient in consequence of any provision made by, or under, an Act of the Scottish Parliament. In this case, provision is required in consequence of provision made by the 2014 Act, which received Royal Assent on 24 September 2014.
The order extends to the law of England and Wales the effect of certain amendments made in Scots law by the 2014 Act. The amendments in question are amendments to Section 21 of the Chronically Sick and Disabled Persons Act 1970, which provides for disabled people and their carers to be issued with badges entitling them to certain parking concessions. Section 1 of the 2014 Act changes the rules about the form that a badge issued in Scotland must take if it is to be recognised as a valid badge. Badges issued in Scotland are recognised in England and Wales. Article 3 of the order therefore reproduces in the law of England and Wales the effect of Section 1 of the 2014 Act, so that on both sides of the Scottish-English border the same rules will apply for the purpose of determining whether a badge issued in Scotland is in valid form. I should add that the same applies in respect of Wales.
By virtue of Section 2 of the 2014 Act, Scottish local authorities are able to cancel badges which they have issued in certain circumstances. A badge which has been cancelled by the Scottish local authority that issued it should not be recognised as a valid badge in England and Wales. Accordingly, Article 3(3) of the order extends the effect of Section 2 of the 2014 Act so that the cancellation of a badge by a Scottish local authority is effective in the law of England and Wales.
Article 4 of the order fixes a cross-reference in subsection (8C) of Section 21 of the 1970 Act. That subsection glosses references to local authorities elsewhere in Section 21 so that they fall to be read as including the Secretary of State. The gloss is stated not to apply in relation to specified subsections. One of the subsections specified is subsection (4BB) which, in the law of England and Wales, was inserted by Section 94 of the Traffic Management Act 2004 and defines the expression “enforcement officer”. This is the subsection (4BB) to which subsection (8C) is intended to refer. As a matter of Scots law, however, a different subsection (4BB) was inserted by Section 73 of the Transport (Scotland) Act 2001. It does not define the expression “enforcement officer” for the purposes of Scots law. Instead, the Scottish definition of “enforcement officer” is to be found in the version of subsection (8A) inserted by Section 5(4) of the 2014 Act. Article 4 of the order amends subsection (8A) so that it does not gloss the reference to a local authority which appears in the definition of “enforcement officer” in both the law of Scotland and of England and Wales.
The need for and content of the draft Section 104 order has been agreed between the United Kingdom and Scottish Governments. The Department for Transport, which has responsibility for the legislation which this order affects, has been consulted throughout the drafting of the order. All provisions contained in this order have the approval of the Department for Transport and of the Scottish Government.
The statutory instrument before the Committee demonstrates this Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope that your Lordships agree that the order is an appropriate and sensible use of the powers in the Scotland Act 1998, and in particular of Section 104. I commend the order to the Committee.
Lord McAvoy (Lab)
My Lords, I thank the noble and learned Lord, Lord Keen of Elie. He showed off his legal skills in presenting the order. I think that I got left behind at the fifth subsection of the seventh Act that he mentioned, but I think that I managed to catch up. If I were a suspicious person, I would think that he was trying to lead me up the highways and byways, but I have studied this order carefully and I do not think that even he is up to mischief with it.
As the Minister has explained, the Scottish Parliament passed a Disabled Persons’ Parking Badges (Scotland) Act and the order will ensure that there is consistency across Great Britain for the badges issued in Scotland. It will mean that the badges issued by Scottish local authorities are recognised in England and Wales. We supported the objectives of the Act when it went through the Holyrood Parliament and we support this measure today. We are committed to making towns and cities more accessible for the disabled in Scotland and more widely, as was shown recently by our amendment in relation to parking on pavements made to the current Scotland Bill. We know that this issue causes real problems for those with disabilities. We again record our gratitude to the Government for accepting our argument and bringing forward the changes necessary to ensure that the Scottish Parliament can act on this issue.
This order tries to establish consistency throughout the three countries. The noble and learned Lord mentioned that, on the common parts of the legislation, the three countries were working together. Are there any differing parts of the legislation left? To get consistency would need careful wording to make sure that there are no discrepancies or loopholes left.
Paragraph 8.6 of the Explanatory Memorandum points to the Scottish Government’s engagement with multiagency groups,
“to bring forward new and focussed ways to educate badge holders”.
My colleagues in the Scottish Parliament have raised this issue and I will ask the Minister about it today. Do the UK Government intend to carry out the same multiagency work and will they be issuing guidance to local authorities in England and Wales about this order?
There is nothing minor about legislation affecting people in the disabled community, and this order did not have any real public consultation. I wonder if the assumption there was that it had broad support; let me hasten to add that it would be a reasonable assumption. On the other hand, it is known that the Great British public, and the Scottish public, can always offer up something. Can the Minister say who was consulted by the Department for Transport and what advice they offered? Perhaps the Minister would consider committing to placing a copy of the evidence in both Libraries.
However, in the great scheme of things these are minor quibbles. We support the order, but I would be grateful if the noble and learned Lord could address some of my specific points. If there is anything new there that has not been covered, it would of course be acceptable to receive that in writing.
Lord Keen of Elie
I am obliged to the noble Lord, Lord McAvoy, for his observations with regard to the order.
As regards the commonality of the scheme, the only differences which would potentially exist would be on entitlement to badges, which is a matter for each jurisdiction to determine, and the form of the badges themselves, which may differ. What the order will ensure, by way of the 2014 Act, is the enforceability of orders made with respect to those badges. That is what I have to say on commonality.
On the matter of consultation and guidance, I am advised that the UK and Scottish Governments worked closely together with regard to the provisions in the order. It is intended that the department—well, something is intended. Perhaps the noble Lord would allow me a moment.
I am advised that steps will be taken to ensure that the Department for Communities and Local Government is properly sighted on the order so that it may then make an appropriate decision as to whether guidance should be issued. I apologise for the delay on that point.
I am also advised that, as with all Section 104 orders, relevant departments and Ministers were consulted and gave their consent to the making of the order. I do not have further detail as to what was said by or on behalf of the Department for Transport, but perhaps I can arrange to write on that point.
Unless there is any further point that I have not covered, I will leave the matter there.
Scotland Bill
Lord McAvoy Excerpts(8 years, 9 months ago)
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Lord McAvoy (Lab)
I shall speak to Amendment 57A which seeks to create a new clause to ensure that the process leading to the annual settlement between the Treasury and Scottish Ministers of the block grant to the Scottish Consolidated Fund is both transparent and accountable. It could have related to some of the earlier amendments which sought more transparency.
After eight months of negotiations behind closed doors of the Joint Exchequer Committee, the Scottish and UK Governments have now reached agreement on the revised fiscal framework. We gave the Scottish Government our full support in their efforts to get a fair deal for Scotland and we are glad that an agreement has been reached, albeit belatedly. It may not be perfect and the timing may not be perfect but it is essential that this Bill meets the requirements of the Scottish Parliament in terms of consideration, in terms of the calling of the election and in terms of leaving this House. We wanted an agreement on the fiscal framework and both the UK and Scottish Governments have done their best to achieve one.
However, we now need clarity on when the new powers will be available and what the SNP Government and the other major parties in Scotland plan to do with them. The Secretary of State for Scotland has said that the new powers over income tax will be available by April 2017. We want as many new powers as possible, including those over airport duty, 50% of VAT revenues and social security, to be available by the same date in time for the first budget of the new Scottish Parliament.
The Labour Party moved this amendment in the House of Commons and since that time it has continued to advocate that a more open and transparent means of communication should have taken place. Documents have not been disclosed because we were told that this would constitute providing a running commentary. We understand that of necessity the process had to be carried out to achieve success, but it was marred on some occasions by negotiating positions being leaked to the press.
The amendment has taken on new significance since the publication of the fiscal framework, which suggests that the calculation of the block grant adjustment will take place on a transitional basis over the next five years and that at the end of the transitional period an independent review will take place. We believe in the discipline of transparency. Making the discussions and results of meetings transparent will help the Scottish and UK Governments. There is nothing like the discipline of public opinion and it will help both Governments to come to satisfactory conclusions.
Lord Dunlop
My Lords, again a number of points have been raised and I shall try to address each in turn. If I do not address them now I will be happy to write to noble Lords.
The noble Lord, Lord Kerr, said that his amendment sought to include annual limits on the borrowing and debt that can be undertaken by the Scottish Government. As he acknowledged, the Governments have now agreed the fiscal framework and, as a result, the Government are now bringing forward amendments to the Bill which will put the new borrowing arrangements into effect. I am grateful to the noble Lord for his view that the Government’s amendment addresses the intent of his own amendment. The noble Lord also raised a number of specific questions, and if I may I will write to him about them.
The amendments spoken to by the noble Earl, Lord Kinnoull, raise a number of specific points that I shall seek to address. On the need for separate limits for capital and resource borrowing, the agreement already sets separate limits and the UK Government are therefore proposing to amend the Scotland Bill accordingly. As is clear, the Scottish Government’s aggregate borrowing limit for capital spending is being increased from £2.2 billion to £3 billion, while the aggregate borrowing limit for resource spending is being increased from £500 million to £1.75 billion, reflecting the additional risks that the Scottish Government will take on. On the definition of how these limits are calculated, I can confirm that they are based on the principal, with interest payments not included.
On the issue of currency, the amendments proposed to the Scotland Bill by the Government require the Scottish Government to borrow in sterling to fund additional capital spending. As the Scottish Government can only borrow from the National Loans Fund for current spending, this will also therefore be in sterling.
On the issue of responsibility, I reiterate that the Scottish Government are responsible for all of their borrowing. But while the UK Government do not explicitly stand behind Scottish Government borrowing, the borrowing limits have been set at a level that the Scottish Government should be able to manage. I would like to remind the House of what the Chancellor of the Exchequer said when giving evidence to the Treasury Select Committee last Session:
“the UK stands behind its citizens wherever they live. The fiscal credibility of the UK is one of our most precious assets and we have had lots of debates in this Parliament about how we preserve that credibility. Of course we would not allow Scotland to go bust, but in order for that situation not to arise we will have to agree fiscal rules, independently verified, that make sure that that does not happen, so that we never reach that situation where the sovereign backstop has to be deployed”.
Again the noble Earl raised a number of specific points on which I will write to him.
The noble and learned Lord, Lord McCluskey, did not move his amendment but a number of points were raised. My noble friend Lord Sanderson asked about independent forecasts. I can confirm that as part of the fiscal framework agreement, amendments will be made to the Scottish Fiscal Commission Bill that is currently going through the Scottish Parliament, and there is no reason to think that the Scottish Government will not act with anything other than good faith in that regard. The noble and learned Lord, Lord McCluskey, also raised a specific point about the OBR’s right of access and asked whether there is any uncertainty in that. I think that there is a good understanding between the Governments about the information exchange that is required and I do not anticipate this being an area of great dispute between the two Governments. The provisions in this Bill will be underpinned by a memorandum of understanding as to how in operational terms this will work in practice.
I turn now to the amendments tabled by my noble friend Lord Higgins. Smith set out that extensive new tax powers should be devolved to the Scottish Parliament and Part 2 of this Bill does exactly that. Amendment 56B deals with whether we need two consequential powers in the Bill with regard to the income tax clauses. As has been referred to, this was covered in the Government’s response to the Delegated Powers Committee report which is now available online.
Perhaps I may explain the Government’s approach in this regard. The powers are separate and different, and both are required. Clause 15(8) allows the Treasury to make consequential amendments that arise in connection with changes made to the Scotland Act 1998 and the Income Tax Act 2007 by Clauses 13 and 14. The power in Clause 13, amending Section 80G of the Scotland Act 2012, allows the Treasury to make consequential amendments that are needed in consequence of or in connection with the exercise of the new income tax powers by the Scottish Parliament through a Scottish rate resolution. Income tax powers within this Bill are more extensive than those in the 2012 Act, so it is entirely natural that the changes made by Clauses 13 and 14 to the structure and terminology of the Income Tax Act 2007 that facilitate this devolution may give rise to the need for consequential amendments elsewhere in the taxes Acts.
I now turn to Amendments 56D, 56E, 56H and 56J, which deal with whether all SIs should be via the affirmative procedure. This is not an issue unique to the Scotland Bill; the approach is common across legislation. The Government agree that substantial changes to primary legislation should be made using the affirmative procedure. However, non-textual and minor technical changes should be possible under the negative resolution procedure. This minimises the burden on the House and also on government resources.
On Amendments 56C and 56G, which would deny the Treasury the power to amend by order the Scotland Bill, or Act itself, there will be a length of time between the Bill receiving Royal Assent and the Scottish Parliament exercising the new powers conferred by this Bill for the first time. The gap will be longer in some cases than in others. Income tax will be the shortest. We expect this to come into effect in 2017, then APD in 2018 and finally the aggregates levy. In the case of the aggregates levy, the length of time is uncertain as it will depend on resolution of the levy’s legal challenges.
There may be circumstances where changes are made to the UK structure of those taxes in the intervening period which would require amendment to the Bill in the period between Royal Assent and the commencement of devolved powers. For example, given the outstanding litigation on the aggregates levy, we must have flexibility to respond to future judgments to ensure the levy and the powers that we are devolving remain fully lawful. Similarly, there may be future enactments relating to the taxes which would need amendment. Any amendments to an enactment will be subject to the affirmative resolution procedure. On that basis, the Government cannot accept the amendments tabled by my noble friend.
Turning to the amendment moved by the noble Lord, Lord McAvoy, the Government have listened very carefully to concerns, such as those raised in the context of Amendment 57A, on the transparency of how we operate the Barnett formula. In our response to the Lords Economic Affairs Committee’s valuable report on this Bill, the Government committed to look into what more we could do. We are currently doing that and I hope to be able to report progress to the House in due course. This is not an issue just for Scotland; it impacts across the UK, so we have not tied this work to the Scotland Bill alone.
In the mean time, I reassure noble Lords that the Government have already set out changes to the devolved Administrations’ Barnett-calculated block grant allocations at every spending review, as well as twice a year—at Budgets and Autumn Statements, as required. In November, at the spending review and Autumn Statement, tables were included setting out the overall impact on the block grant of that important event. Alongside this, the Treasury has also recently published an updated version of its Statement of Funding Policy, copies of which have been placed in the House Library. This document outlines the principles underlying the calculation of the block grant. On that basis, I ask noble Lords not to press their amendments.
Lord McAvoy
“ScheduleThe Joint Committee on Welfare DevolutionMembership1 The Joint Committee on Welfare Devolution shall comprise the Secretary of State, who is to be the chair of the Committee, and the following other members—
(a) the Scottish Minister who is responsible to the Scottish Parliament for welfare policy and payments, who is to be the deputy chair of the Committee;(b) the Member of the House of Commons who is for the time being the Chair of the Work and Pensions Select Committee of the House of Commons;(c) the Member of the Scottish Parliament who is for the time being the Chair of the Welfare Reform Committee of the Scottish Parliament;(d) two Members of Parliament who are not Ministers of the Crown;(e) two Members of the Scottish Parliament who are not Scottish Ministers; and(f) two persons representing local government in Scotland.2 The members of the Joint Committee on Welfare Devolution mentioned in paragraph 1(d) are to be appointed by the Speaker of the House of Commons and the Lord Speaker of the House of Lords.
3 The members of the Joint Committee on Welfare Devolution mentioned in paragraph 1(e) are to be appointed by the Presiding Officer of the Scottish Parliament.
4 The members of the Joint Committee on Welfare Devolution mentioned in paragraph 1(f) are to be appointed by Scottish Ministers after consultation with the Convention of Scottish Local Authorities.
5 In this Schedule, references to the Work and Pensions Select Committee of the House of Commons are—
(a) if the name of that Committee is changed, to be taken (subject to paragraph (b)) to be references to the Committee by its new name;(b) if the functions of that Committee with respect to welfare policy and payments (or functions substantially corresponding thereto) become functions of a different committee of the House of Commons, to be taken to be references to the committee by whom the functions are for the time being exercisable.6 In this Schedule, references to the Welfare Reform Committee of the Scottish Parliament are—
(a) if the name of that Committee is changed, to be taken (subject to paragraph (b)) to be references to the Committee by its new name;(b) if the functions of that Committee at the passing of this Act with respect to welfare policy and payments (or functions substantially corresponding thereto) become functions of a different committee of the Scottish Parliament, to be taken to be references to the committee by whom the functions are for the time being exercisable.Term of office of Committee members7 A member may resign from the Committee at any time by giving notice to the Secretary of State.
8 A member may be re-appointed (or further re-appointed) to membership of the Committee.
Committee proceedings9 The Joint Committee on Welfare Reform may determine its own procedure.
10 The validity of any proceedings of the Joint Committee on Welfare Reform is not affected by—
(a) any vacancy among, or(b) any defect in the appointment of any of, the members of the Committee.11 The Joint Committee on Welfare Reform may appoint a member of the Committee to act at any meeting of the Committee in the absence of both the Secretary of State and the Scottish Minister who is deputy chair of the Committee.
Advisory Panel12 The Secretary of State and Scottish Ministers acting jointly may make regulations appointing a panel to advise the Joint Committee on Welfare Reform on the transfer, implementation and operation of the powers devolved to the Scottish Parliament by Part 3 of this Act, comprising academics, representatives of the third sector and voluntary organisations, and other relevant stakeholders.
13 The Joint Committee on Welfare Reform must consult any advisory panel appointed under paragraph 12.”
Lord McAvoy
This proposed new schedule on the joint committee on welfare devolution provides for an across-Parliament committee to oversee the transition and implementation of welfare powers transferred under this Bill. The committee would include Members from both Parliaments and would be required to report frequently in the transition phase, and therefore annually. We hope there will be some kind of progress on that, similar to the statement made by the Minister a few minutes ago about listening and implementing ideas. That is always welcome.
Lord McAvoy
Just in the interests of having all the information, is the Minister in a position to name some of the organisations?
Lord Dunlop
For example, we have worked to build a strong relationship with the Convention of Scottish Local Authorities to ensure that universal credit is implemented and delivered in a way that best reflects the views of Scottish local authorities. Citizens Advice Scotland is another organisation that we have engaged with. This has been a genuinely joint approach to improve delivery in Scotland and is just one example of many.
As I said in Committee, I am sympathetic to the noble Lord’s intention in what his amendment proposes to achieve but we believe that robust, strong and effective mechanisms are already in place. We will absolutely put the customer at the heart of any change and will work with the Scottish Government to ensure that the transition and implementation of powers is simple, clear and effective. This will protect the delivery of existing benefits and customer interests, and ensure a great future for all the people in the UK, including those in Scotland.
Turning to Amendments 58 and 59, spoken to by the noble Lord, Lord Kirkwood, Clause 29 gives the Scottish Parliament legislative competence to establish employment programmes to support disabled people and those at risk of long-term unemployment. It devolves power over support for unemployed people through employment programmes currently centrally contracted by the DWP; this is mainly but not exclusively the Work Programme and Work Choice. These two programmes represent virtually all funding across these contracted employment programmes and therefore, in our view, provide the Scottish Government with a significant policy space within which to operate.
The powers are very broad in scope and concurrent with the UK Government’s powers. Any claimant on a reserved benefit at risk of long-term unemployment can be addressed in this way, so the Scottish Government have the ability to create schemes, programmes or grants in this space as the UK Government can. It gives the Scottish Government the ability to better align with the employment support they already provide through the devolved skills system. That is a very substantial package of powers which the Scottish Government can already use. I think the estimated annual spend in this area is some £600 million.
Support for those at risk of long-term unemployment must last for at least a year. The three restrictions seek to define the space which Smith said that the Scottish Government should have in designing new programmes. This creates clear lines of accountability between what the Scottish Government are able to do and what Jobcentre Plus is required to do. It is also important for there to be a clear handover point, so that Jobcentre Plus and Scottish Government programmes do not try to deliver different support to the same claimant at the same time. Jobcentre Plus will continue to deliver smaller-scale support, with the Scottish Government delivering more significant interventions.
The amendment of the noble Lord, Lord Kirkwood, would remove the limitations that assistance should be for persons claiming reserved benefits and be for at least a year. These limitations are necessary safeguards to ensure that those who need support over and above that provided by the enhanced Jobcentre Plus offer receive assistance for an intense period. Smith was clear that Jobcentre Plus and the conditionality regime “will remain reserved”. As I have said, there needs to be a clear handover point so that Jobcentre Plus and the Scottish Government’s programmes are not overlapping in that sense.
It is vital that the Jobcentre Plus work coaches have the right tools to support claimants into work and smaller-scale employment programmes at their disposal, such as mandatory work activity or locally commissioned support via the flexible support fund. If responsibility is split, the result could be people spending longer on benefits and employment support, and if we remove these restrictions, it will in the Government’s view create a confused, muddled system of support which claimants and third sector organisations would struggle to understand or navigate. That would be a much worse system and have unintended consequences. We have sought to strike the right balance: enabling the Scottish Government to provide employment support for people who are at risk of long-term unemployment, and giving the Scottish Government the opportunity to take clear responsibility over a substantial portion of the claimant journey.
Finally, I turn to Amendment 60, which concerns “Consolidation of the Scotland Act 1998”. We addressed points in Committee about the scope of the powers in the Bill related to welfare. Once the Bill is passed, it will be available on legislation.gov.uk, alongside the Scotland Act 1998 and the Scotland Act 2012. In the Government’s view, it would not be a good use of Parliament’s time to bring forward another Bill simply to repeat what is included in previous Scotland Acts. The dynamic nature of the devolution settlement means that the two Governments work together on Section 30 orders, which adjust the terms of Schedule 5 from time to time, so any consolidated version would quickly be out of date. That is no bad thing; it is testimony to the devolution settlement working responsively.
However, the points made by the noble Lord, Lord Kirkwood, raise an interesting question about knowledge of the devolution settlement more generally. I think that the noble Lord, Lord Smith, referred to it in his personal recommendations. The Government very much support the objective and have taken steps to improve the knowledge in UK government departments and beyond. For example, in March 2015 the UK Government published a leaflet explaining the changes to devolution in Scotland. The Secretary of State has also undertaken visits to local authorities and is keen to ensure that they know what powers are coming to the Scottish Parliament. The Scotland Office communications directorate’s work will also seek to make clear the Scottish Government’s existing powers—powers coming into force from the Scotland Act 2012 and those being delivered by the Scotland Bill. Its work raises awareness not just of the debate on what powers may or may not be devolved in future but on where the existing powers are today. With that, I ask the noble Lord to withdraw his amendment.
Lord Dunlop
It means that if you look across the total Scottish budget, it would deliver the outcome that we discussed earlier. It is up to the Scottish Government to decide how to use the resources within that: it is not ring-fenced within that total figure.
Lord McAvoy
We welcome the further response about involving the principles that we have included in previous Bills around transparency, involving people and all the rest of it. We are reasonably happy with that and I beg leave to withdraw the amendment.
Scotland Bill
Lord McAvoy Excerpts(8 years, 9 months ago)
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Lord McAvoy (Lab)
My Lords, I can understand where my noble friend Lord Faulkner is coming from. Along with the details that have been announced there is the extra factor of security, and I would have thought that that would justify a sympathetic approach from the Government. However, I cannot get away from the reality that devolution is devolution, and for us to try to lay down the conduct of the Scottish Government in relation to the British Transport Police, much as we would like to go up against this proposal of devolution, is wrong. I know where he is coming from and I sympathise with him. He has put a terrific case but, fortunately or unfortunately, it falters on the issue of devolution.
Amendment 43 is in the name of myself and the noble and learned Lord, Lord Davidson. What we are trying to do is influence not only the UK Government but the Scottish Government. The amendment would provide for the establishment of a joint board that would examine the transfer, implementation and operation of the devolution of the British Transport Police. I understand that the full integration of the BTP into Scotland would take around three years. During those three years there are bound to be issues that arise, possibly security in particular. In this amendment, the joint board, or whatever it would be called, would report back to the Scottish and UK Governments. It would not interfere or try to influence what the Scottish Government were doing except in the way of good advice, so the principle of devolution would be protected. I do not like to use the expression “holding feet to the fire”; it smacks of violence and I am dead set against violence.
The amendment would establish a joint board to oversee this specific aspect of the devolution settlement, with the requirement to report back to the UK and Scottish Parliaments about the transfer, implementation and operation of proceedings, with particular reference to security issues. It is a response to the wide-ranging debate that we had in Committee, which attracted considerable attention and participation from across the House, about the devolution of the BTP.
I make it very clear, as we have done all through these proceedings, that the amendment is not intended to delay, postpone or in any way alter the timetable of the devolution of the BTP. In keeping with the nature of devolution, once these powers have been devolved, it is up to the Scottish Parliament to determine the future of the BTP. I am honestly making it plain that we have no intention of forcing a vote on that. We are not into gesture politics.
Lord McAvoy
However, let me deal with those who are. Earlier, the noble and learned Lord, Lord Wallace of Tankerness, shared with the House a conversation that he alleges he had with the Labour Whips’ Office. I do not know whether it is true, but in my 23 years in the House of Commons conversations with the usual channels and with Whips were sacrosanct. But seeing as how the noble and learned Lord has seen fit to venture into this territory, I shall share, in further defence of our strategy of trying to influence not only the UK Government but the Scottish Government, a statement from the noble and learned Lord to myself at the Bar, which I would not normally share, in which he indicated that the Liberals were going to use the vote on the Crown Estate for election leaflets in the islands. So here we are—the Scotland Bill is reduced to a political gambit for cheap political point-scoring. [Laughter.] The noble Lords may laugh and scoff, but they are the only ones who are doing so. Therefore we are taking the honourable position of trying to influence, not just engaging in gesture politics and staging votes for cheap political points, and we hope that we have influenced the Government—we will see what their response is—and the Scottish Government as well.
Lord Forsyth of Drumlean
My Lords, I will briefly speak to Amendments 41 and 42. I thank the noble Lord, Lord Faulkner of Worcester, for having tabled these amendments and for putting the case so eloquently. We had quite a wide-ranging discussion in Committee and I am very disappointed indeed that the Government have not come forward with proposals—a number of constructive options were suggested.
I have been trying to think of two words to explain the conduct of the Official Opposition over the Bill, and “kowtow” would sum it up. They are utterly terrified to say anything that could be interpreted in any way as not being in line with the Smith proposals or as doing anything that might upset the Scottish Government, which is very disappointing, particularly in the context of this issue.
As the noble Lord, Lord Faulkner, pointed out, the British Transport Police has for nearly two centuries served our country extremely well. It is a while since I was Secretary of State but I remember the important role it had in ensuring that we were able to cope not just with terrorism but with drug traffickers and other criminals who use the transport network. It is a highly specialised area and it is an act of utter vandalism to break up the British Transport Police in the way that is being proposed.
It is a particularly stupid of the Government to go along with the idea that the British Transport Police should be fragmented and the Scottish element of it included in Police Scotland which, I am sad to say, is in Scotland regarded as something of a joke and a disaster. Prior to the Scottish Government making the changes we had independent police forces operating extremely effectively throughout Scotland. The advocates of devolution decided to take power away from those police forces and centralise them into Police Scotland, and the results have been disastrous as regards communications and operational failures. I place responsibility for this not on the individual members of the police force but on the Scottish Government, who have created this chaos. Both the notion that we should break up the British Transport Police and hand it over to an organisation which has just sacked its chief constable and appointed a new one to sort out its problems, and the amendments which have been put forward by the Labour Party tonight which suggest that we set up a quango to help deal with the problems of implementation and administration, are just breathtaking in the scale of their irresponsibility.
We have no reason to interfere with the operations of the British Transport Police, so what offends the Scottish Government about it? The noble Lord, Lord Faulkner, put his finger on it: it could be the B word —the fact that it is called “British”—which offends. However, this is not a Scottish issue but a United Kingdom issue. It is about the security of the United Kingdom as a whole. I very much hope that the Minister will think again about the options which have been put forward in the amendments tabled by the noble Lord, Lord Faulkner, about how we can maintain a British force.
Scotland Bill
Lord McAvoy Excerpts(8 years, 9 months ago)
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Lord Lang of Monkton (Con)
My Lords, I certainly agree with the noble Lord, Lord Empey, that there is a lot of imperviosity in the air today. He talks of feeding the flames. That is a phrase I and a number of colleagues have used many times over the last few years, certainly every time legislation affecting Scotland has come before the House. However, I make no apology for speaking very briefly in support of Amendment 1. Indeed, I support all the amendments in this group, with the possible exception of Amendment 3, proposed by my noble friend Lord Cormack. I sympathise with his sentiments but it is so palpably obvious that what he would like to achieve is outwith the terms of the Smith commission report, which is our sacred text, that it is highly unlikely it would make any progress.
In constitutional terms we should not forget that this is a shameful piece of legislation and has a shameful origin. The Constitution Committee was deeply critical of that fact. It was born out of panic and its contents decided by an arbitrary political cabal. Parliament’s role was blindly and blandly simply to pass it through into law. Clearly, my noble friends on the Front Bench have been given instructions not to yield an inch on any matter—not even a willingness to take things away and consider. “Get it through on all counts, unamended; don’t give anything away”. That is the sort of thing the Treasury says to other people, although in the last 24 hours we have noticed that it is sometimes a little bit inclined to breach its own rules—not always in the right way. Therefore, I think it is right to revisit this issue, however briefly, particularly because when we debated it very fully in Committee, I was pleasantly surprised to find that the noble and learned Lords, Lord Mackay of Clashfern, Lord Hope of Craighead, and Lord McCluskey, and other distinguished lawyers and constitutional experts, including my noble friend Lord Norton of Louth, all came in behind the proposition that it was dangerous to legislate in a meaningless and declaratory way; indeed, that goes against the Government’s own guidelines on drafting legislation.
The point is that Clauses 1 and 2, which we are debating amendments to, change nothing in law. They are essentially meaningless. They are declaratory. But they could sow a seed and some Scottish judge at some time in the future could build a case over these now justiciable matters. The implications for Scotland, and indeed for parliamentary sovereignty, would be very considerable indeed.
My noble friend Lord Dunlop and my noble and learned friend Lord Keen of Elie are curiously reluctant even to consider what was said then. At one level, the clauses change nothing because they are declaratory. In a sense they are meaningless, but their very meaninglessness carries a meaning of sorts and carries implications and uncertainties. Indeed, I wonder why the Scottish Government were so keen to have the changes made to which our Government gave way so readily in another place. It is still not too late to think again, and I remain ever hopeful that the Front Bench will relent.
Lord McAvoy (Lab)
My Lords, for the removal of any doubt, I do not support any amendments in this group. But I am pleased to be given the chance to try again to pronounce the name of the noble Lord, Lord Louth of Norton—I have done it again—the noble Lord, Lord Norton of Louth, because he is a profound constitutional expert and he has my total admiration and respect, and I apologise for the mix-up.
The original draft of Clause 1 conveyed the permanency of the Scottish Parliament and the Scottish Government as institutions but our amendments put their permanency beyond any doubt and put the decision of whether they should be permanent in the hands of the Scottish people. We do not want any change to this aspect of the Bill. It is with some trepidation that I enter this debate, with so many constitutional experts, lawyers and esteemed legal people, but there we are; I might bring the perspective of an ordinary Scottish person without having all those grand titles—which are all deserved, I hasten to add.
I do not think we should spend too long on this aspect of the Bill. We support the Scottish people having the final say on any of these matters. Without going too much into the history of things, in 1707 Scotland entered the United Kingdom as a full country. It did not sacrifice totally its right to have its own say. We entered as an equal partner. I think we have played our part, pro rata, on an equal basis. I believe strongly that that should be the case. The sovereignty of the Scottish people should be recognised. It is not a coincidence that one of our monarchs in Scotland, Mary, Queen of Scots, was not known as the Queen of Scotland. Of course, her final legacy was that every monarch of Scotland and the United Kingdom since her death has been her direct descendant. That is totally in tune with the Scottish people. The Scottish people should have the say. I am sorry to say it but particularly the amendment tabled by the noble Lord, Lord Cormack, to take everything away from the Scottish people is just not acceptable or realistic. Realpolitik has been mentioned and that is absolutely right.
I do not want to feed the flames but I say to the noble Lord, Lord Empey, that he could have been a bit more careful with his words, bearing in mind the history of Northern Ireland. My party and I—and, I believe, the Government—are not feeding any flames. I believe in the merits of what we have here, not just as expediency or something passed down from on high. I believe firmly in it and if any of these amendments are pressed, we will be voting against them.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, perhaps I may begin with a material concession. When the noble Lord, Lord Empey, referred to a capable Minister on the Front Bench he was clearly referring to my noble friend Lord Dunlop.
I thank noble Lords for their careful and detailed consideration of Clause 1, which expresses in law the understood position that the Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements. I will endeavour to respond to each of the points made and, in doing so, I thought that it would be helpful to reflect on the adjustments made to this clause during the Bill’s passage through Parliament.
The Smith commission said that the United Kingdom’s legislation,
“will state that the Scottish Parliament and Scottish Government are permanent institutions”.
In the draft legislation which the Government published in January 2015, the Scottish Parliament and the Scottish Government were recognised as permanent parts of the United Kingdom’s constitutional arrangements. At that stage, the clause did not contain a provision on a referendum. This drafting was retained when the Bill was introduced to Parliament in May 2015. Detailed feedback was then received on the clause during the Bill’s passage through the other place and from others such as the Scottish Parliament’s Devolution (Further Powers) Committee. The Government reflected carefully on this feedback and on 18 September, the Prime Minister announced the Government’s intention to include a referendum provision in the clause to strengthen the provision and underline our commitment to the Scottish Parliament and the Scottish Government. Following refinement of the drafting, the clause as it now appears was inserted into the Bill on Report in the other place.
I pause to observe in response to the observations of the noble and learned Lord, Lord McCluskey, that I am not aware of any understanding between the United Kingdom Government and the Scottish Government to the effect that no amendment will be allowed to the provisions of Clause 1 or to any other part of the Bill. The clause was also subject to substantial debate during our Committee in December.
I turn to Amendment 2, tabled by the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Norton of Louth. This amendment considers the specific wording of subsection (3) of the new section in Clause 1. Following our deliberations in Committee we have reflected carefully on this amendment, which I believe seeks to clarify details of the operation of such a referendum. None the less, our view remains that the current wording of the clause delivers the outcome needed effectively, as it reflects that in 2014 the people of Scotland voted to remain in the United Kingdom and that that would mean a commitment to two Parliaments. New subsection (3) ensures that if the Scottish Parliament and Scottish Government were ever to be abolished, which of course is a scenario that no one is envisaging, the people of Scotland would need to vote in a referendum to that effect.
The noble Lord, Lord Cormack, spoke to Amendment 3, which would replace the requirement for a decision of the people of Scotland in a referendum with a requirement for a two-thirds majority in a vote of the House of Commons, in which 75% of Scottish Members of Parliament voted in favour. I am grateful to the noble Lord for the points he has made and recognise his desire to underline the centrality of this Parliament in determining the constitutional arrangements of the United Kingdom. However, it remains our view that it is right to include provision for a referendum of the people of Scotland in the clause to strengthen the political statement, and to underline the commitment of this Parliament and this Government to the Scottish Parliament and the Scottish Government.
The referendum provision rightly reflects the importance of the people of Scotland in determining Scotland’s constitutional future. In the referendum in 1997, the people of Scotland overwhelmingly supported the creation of a Scottish Parliament. In the independence referendum in 2014, they reaffirmed that they wanted to have two Parliaments by voting to remain within the United Kingdom.
Lord Lang of Monkton
My Lords, I repeat briefly the support that I gave these proposals in Committee. The noble Earls, Lord Dundee and Lord Kinnoull, are to be congratulated on persevering on this issue. Like my noble friend Lord Norton of Louth, I, too, served on the Constitution Committee when, 14 years ago, we drew attention to the inadequacy of intergovernmental relations. They have got worse, not better, since then. We produced a report a year ago in the committee drawing attention to intergovernmental relations across the board, and we are still awaiting a response on it from the Government. I know that they are thinking about it, but they are thinking very slowly or, perhaps, very thoroughly.
I hope that this amendment will trigger further thought from them. I do not know whether the proposed new clause covers the whole comprehensive gamut, but it certainly looks like a very good effort to me. I reassure my noble friends that, if they do not prosper with this clause in this Bill, we have another report coming out from the Constitution Committee shortly, and I dare say that it is possible that we will return to the matter then.
Lord McAvoy
My Lords, I, too, on behalf of the Labour Party, would like to record our support for the principles of the amendment moved by the noble Earl. This is a good, positive amendment and way ahead and a more positive discussion than some that we have had previously. We have to develop these links and prove that there is a better away ahead than just conflict, narking away at each other and coming to a conclusion. I am reasonably sure that the Government will resist the amendment, but I hope that its wording and, more importantly, the spirit behind it, form a template for further discussions and proposals coming from the UK and Scottish Governments.
Scotland’s Fiscal Framework
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Lord McAvoy (Lab)
My Lords, I thank the Minister for repeating the Statement on the fiscal framework and for the pivotal role that he has played in bringing about yesterday’s arrangement. First, we welcome unequivocally the news that an agreement has been reached on the fiscal framework. Thanks should rightly be extended to both Governments, the Deputy First Minister, the Chief Secretary to the Treasury and the Secretary of State for Scotland, as well as for a late intervention by the Chancellor. We congratulate and thank them all on working so hard to secure an arrangement, along with the officials of both Governments.
Yesterday’s agreement marks the removal of the final obstacle to the transfer of significant and substantial new powers to Scotland. As the Minister has already indicated, the noble Lord, Lord Smith, has said that the agreement,
“sees the recommendations of the Smith Commission delivered in full”.
In his Statement, the Secretary of State committed himself to publishing details of the agreement by the end of the week. Given that your Lordships’ House will be debating the fiscal and welfare elements of the Scotland Bill on Monday, we very much welcome this commitment. On that point, can the Minister briefly say whether he has an update on whether Committee rules will be applied for the final day on Report, as was suggested in Committee on Monday?
My honourable friend the shadow Secretary of State has, from the outset, called for greater transparency on the way these deals are negotiated. What this process highlights is that future intergovernmental relationships must be improved to make these powers work for Scotland. We all know that the major stumbling block was the indexation method used for the block grant adjustment. Under the compromise reached, there will be a five-year transitional period, which will cover the full term of a Scottish Parliament. Towards the end of this period, an independent review and recommendation will be published that will form the basis of a more permanent solution. We all hope and demand that agreement is reached. We would also welcome any further clarity that the Minister can provide on the transitional period. The Secretary of State has said that the new income tax powers will be available by April 2017, but the Deputy First Minister seems to have cast some doubt on that.
In the remainder of my reply, I will focus on the review. I welcome the fact that it will be fully independent, but can the Minister answer some very specific questions at this stage? How will the review body be chosen? Can he confirm that it will be done in a spirit of consensus with the full agreement of both Governments? What criteria will be used to determine its independence? This independent review is a guarantor for the United Kingdom and Scotland of the fairness of the final agreement and should assuage any doubts or problems about accepting it.
I close by saying once again how welcome this agreement is, and I hope that Monday will give us an opportunity to look at the issues in more detail. The priority for us now is to facilitate the passage of the Scotland Bill. It will be a historic date, and I believe it is now up to your Lordships’ House to deliver the Scotland Bill without delay.
Lord Stephen (LD)
My Lords, I thank the Minister for his Statement. It is certainly very good news that an agreement has been reached between the UK Government and Scottish Government on the fiscal framework. This agreement should allow the Scotland Bill to reach the statute book ahead of the Scottish Parliament elections and will introduce a very powerful range of new policy-making and tax powers to Scotland, which have been long supported by the Liberal Democrats on the journey to home rule. All of this delivers on the vow made by the UK party leaders and implements in full the recommendations of the all-party Smith commission.
However, I am sure there will be concern from all sides of this Chamber that we have not yet seen the full, detailed fiscal framework. Some of the arguments from the negotiations—which were of course all conducted very firmly behind closed doors, underneath the veil of secrecy—are still being repeated, most notably by the Scottish First Minister and others on her side of the argument. Nicola Sturgeon claims to have been fighting to defend the Scottish Government from cuts over a five-year period—first, she said of £10 billion, then £7 billion, then £3 billion and then, finally, £2.5 billion. She now claims that this threat—we will never know how real and present a threat it ever was—no longer exists.
What is certain is that under an independent Scotland, or if there was full fiscal autonomy, the cuts that Scotland would now be facing would be £10 billion—not over a five-year period, but each and every year. There would be no safety net or protection from the UK Government under independence. That would mean a cut over five years not of £10 billion, £7 billion, £3 billion or £2.5 billion, but of £50 billion under independence or full fiscal autonomy. What is also certain is that the Scottish Government have accepted the Treasury model for calculating the grant adjustment for each of the first five years.
It is worth quoting Brian Taylor, the BBC’s political editor in Scotland. He asks “who has given ground” in the negotiations and states:
“The Scottish government has had to compromise. They have gained less than they wanted in terms of cash to assist the implementation of the new powers, including welfare powers. They have been obliged to concede that there will be independent scrutiny of Scotland’s fiscal position in the run up to the proposed review which will take place in six years time ... the Scottish government has accepted that it will be, technically, the Treasury model which is used for operating the fiscal framework … Already Liberal Democrats are saying that is an error by Scottish ministers - that it will be difficult to escape the Treasury model, even the reformed version, once it is in place. That it might, in short, prove costly in the longer term”.
So it is clear that this is not the beginning of the end, nor even the end of the beginning. Rather, it all remains to be fought once again in 2021. It is inconceivable that the SNP will not use the opportunity for further grievance and battling with the UK Government.
The political editor of the Courier wrote this morning:
“One dampener to put on this otherwise joyous occasion is the question of what happens in five years when we revisit the terms of the deal? Will we be locked in some kind of 2016 battle re-enactment? Will it be even bloodier if one side decides it doesn’t like the now-agreed system? It’s possible the battles have just begun”.
I trust that the Minister agrees that we should now grasp the opportunity to establish a federal fiscal commission to look independently and objectively at the issues of financing not only Scotland but other parts of the United Kingdom in a fair and well-informed way. We do not have to wait until 2021.
The spin of one Government against the other in these negotiations has not been helpful, and it will, I predict, be repeated in 2021. However, the Minister is right: the big issue is now delivering the new powers and for Scotland to make proper use of them.
In conclusion, and crucial to this Chamber, I hope that the Minister can give us a cast-iron assurance that the detail of the fiscal framework will be published in time for proper scrutiny ahead of Report next Monday. I suspect that he will readily give us such a reassurance, as he is acutely aware of the strength of feeling on this issue on all sides of the Chamber. He has also been very directly involved in the negotiations and has put a considerable amount of his own acumen and effort into reaching resolution. He has also put a great deal of effort into dealing with the representations and frustrations of the Members of this House, which have also been considerable. For all of that, he should be considerably thanked.
Scotland Bill: Fiscal Framework
Lord McAvoy Excerpts(8 years, 9 months ago)
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Lord Dunlop
The noble Lord will be aware of the commitments that were made by all of the UK parties at the time of the last election with regard to the Barnett formula, and I do not have anything to add to that.
Lord McAvoy (Lab)
My Lords, it is accepted that this is a difficult and complicated situation, but there is a duty on the UK Government and the Scottish Government to come to an agreement. We in the Labour Party are confident that a deal will be made in good faith by the UK Government and the Scottish Government and, in the words of Ian Murray, we urge both parties to “get on with it”.
Lord Dunlop
I say to the noble Lord that we in the UK Government are determined to go the extra mile to ensure that we get a deal.
Scotland Bill
Lord McAvoy Excerpts(8 years, 9 months ago)
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Lord McAvoy (Lab)
My Lords, I wish to make it clear from the start that the Labour Party will not support the amendment in the name of the noble Lord, Lord Forsyth of Drumlean. The facts of life are that the future of the United Kingdom is at stake, and while I certainly would not accuse the noble Lord of exaggeration, it is becoming clear that with his oratorical skills—I do not think anyone in the Chamber can match him, although some Members on my side are a match for him in maintaining a position—he seems to be succeeding in creating an atmosphere of crisis. With all due respect, he has taken a drama and made a crisis out of it. I do not say that he exaggerates, as that would be unfair and untrue, but a sense of calm, reason and responsibility has to pervade this Chamber. We are speaking about the future of Scotland and of this United Kingdom.
The Minister has made the point that there is a precedent because the last Scotland Act proceeded to implement matters with the detail being discussed later. Quite frankly, apart from the procedures of this House, the practical effect of the noble Lord’s amendment to the Motion being passed would be to kill off the negotiations and the chance of reaching a successful conclusion to these important discussions. I believe that this amendment has been devised to kill off the Scotland Bill, the fiscal framework procedure and the progress being made in Scotland.
Lord Elton (Con)
Can the noble Lord explain why accepting the amendment should kill off the negotiations? Surely it should accelerate them.
Lord McAvoy
I can understand why the noble Lord makes that point, but the nation and country of Scotland is awaiting the results of these negotiations. Whether the noble Lord likes it or not—and I certainly do not—passing the amendment would send this message to Scotland: “Westminster’s not agreeing. Westminster’s kidding you on. Westminster’s conning you. They don’t mean it and here they are obstructing Scotland yet again”.
Lord Forsyth of Drumlean
All my amendment does is say that we should not proceed with the Committee stage until we have the fiscal framework. It does not say that we should not proceed with the Bill or should not pass it. If the noble Lord’s argument is right, why would it not have been interpreted in the same way when we decided to delay consideration of Parts 2 and 3 until today?
Lord McAvoy
The noble Lord will have to accept that I do not agree with him on this, and I do not think he will agree with what I am about to say. The arrangements are designed to facilitate the passage of the Bill and the fiscal framework discussions. Quite frankly, I do not believe that that is the noble Lord’s intention; I believe it is his intention to kill off the discussions.
The atmosphere in Scotland is one of mistrust. I try not to make political points, but the result of the 2015 general election was, I maintain, a direct result of the Prime Minister’s triumphalist press conference in Downing Street the morning after the referendum when he sent the message, “English votes for English laws”, and hostility towards those who had voted yes. There was a sea change in Scotland, where all Labour Party seats were wiped out with the exception of one. We were seen to be conniving and in collusion with a Conservative Prime Minister.
On the other side of the coin, we have got the SNP, with its grievance culture, which is determined to attack Westminster and cast doubt on Westminster’s good intentions—unfairly, because I believe that the intentions here for Scotland are good on both sides of the House. I also think that there was an element of scare story when the noble Lord mentioned that I, the Labour Party and the Conservative Party were terrified of Scots. Terrified of my own people? I respect their desire. I respect their wishes—it is our job to facilitate them—and I believe that that is also the position of the House of Lords.
From the Cross Benches, the noble and learned Lord made it plain that the fiscal framework can still be discussed on Report. This is not a panic measure. This is not ifs, buts or maybes. This is the calmness for which this House is renowned. There will be plenty of opportunity if we can get these discussions to a conclusion. Certainly the indications give hope that we can get the conclusions.
Lord Hamilton of Epsom (Con)
Does the noble Lord accept my noble friend Lord Forsyth’s argument that Scotland will lose out if it comes to a settlement that abolishes the Barnett formula and makes it rely on income tax in Scotland?
Lord McAvoy
The time to discuss the fiscal framework will be when public announcements are made. With all due respect to the noble Lord, Lord Hamilton, we can discuss it until we are red or blue in the face. We are not discussing anything that is there in front of us. This House must be allowed to get on with facilitating the Bill, facilitating the people of Scotland getting the Bill, guarding—
Lord Pearson of Rannoch (UKIP)
Does the noble Lord accept that he is making the Scottish people sound really stupid, whereas in actual fact they are highly intelligent and perfectly capable of following the argument of the noble Lord, Lord Forsyth? I suspect that they would support him because they may get a proper deal in the end.
Lord McAvoy
The noble Lord, Lord Pearson of Rannoch, is absolutely right. The Scottish people are too intelligent to be fooled. That is why they will never vote for UKIP. I do not like making political points when the future of the country is at stake, but there we are.
Lord McAvoy
Cheap? I have been called worse. I take the point of view that we must be allowed to get on with this. I urge the Labour Party, and I am sure that everybody in this House urges both negotiating teams, to come to a conclusion. It is hard; it is difficult. However, we should not underestimate the task that that team is facing, nor should we underestimate the task that the Government are facing in getting this Bill through. We on the Labour side of the House believe that this Bill must go through. This amendment is a distraction. It is not quite right in the threats that it makes. We should get on with the Bill as quickly as we can.
Baroness Buscombe (Con)
Before the noble Lord sits down, does he agree that it would be sensible at least to respond to what my noble friend Lord Forsyth has suggested in urging the Minister to consider and bring forth a sunrise clause, to ensure that at least we can go through this process in the knowledge that this Bill will not pass until this framework is published and considered by your Lordships?
Lord McAvoy
With due respect to the noble Baroness, that would send the message to Scotland from this House, from Westminster, that I have been arguing against for the last five or six minutes. That would be interpreted as Westminster reneging on its commitment to Scotland. I do not accept that argument but that is the argument that would win the day because in my opinion—the noble Baroness will have to take my word for it—that is the mood of Scotland in listening to Westminster.
Baroness Buscombe
It may assist the noble Lord if he were to remind those who seem to mistrust this House that the Smith commission comprised purely Scottish representatives. It is therefore wrong to say that our Prime Minister was in any way not supportive of the Scottish coming out of this with a fair deal. We have all accepted this process thus far. By having a commission—whose results we have all accepted—to decide the future of our overall relationship, but in which only Scotland was represented and not the rest of the United Kingdom, we have made a huge step forward in trying to show Scotland that we care about its future.
Lord McAvoy
The noble Baroness has not addressed my response that the mood in Scotland is such that, correctly or incorrectly, that sort of behaviour would be seen as Westminster tricks or deviousness. That is how it would be seen and there would be a massive reaction against it. This is a massive development for this United Kingdom of ours, in dangerous times when we need to keep a cool head. I may take stick for this elsewhere, but there we go. We have confidence in the capacity of the Scottish Government and the United Kingdom Government to come forward with an arrangement that will guarantee the future of this country.
Lord Hughes of Woodside (Lab)
My Lords, I hesitate to enter this debate, especially as it has been going on for a long time and I have always opposed Scottish devolution. I accept what has happened, that changes have to be made and that we have to move forward. However, the noble Lord, Lord Forsyth, makes an interesting point and if he forces a Division, I shall certainly support him in the Lobby.
As this debate has proceeded today, I have become more and more alarmed. We must choose our words very carefully. When my noble friend Lord McAvoy says that the Bill must go through, that is not the same as saying that, “This Bill must proceed”. We need an absolute guarantee that the Bill will not reach the statute book until the fiscal agreement has been reached; otherwise it will face opposition at every stage. Anyone who raises a question is accused of deliberately trying to stop the Bill going through and to stop the Scottish people getting their own way. Nothing could be further from the truth. We want to see a lasting settlement that will avoid the procedure whereby it seems that, almost every five minutes, the Scottish National Party demands greater concessions which it is given and which it accepts and hails as a great victory. The next day it says, “We have been sold down the river again”. If the debate on the future of Scotland is to be proceeded with solely on the basis of the attitude that the Scottish National Party takes, we are doomed to disaster.
This House and this Parliament have a responsibility, and we should proceed on that basis. When the Minister gets to his feet, he should at least give a categorical assurance that, if we reach Report and still do not have a fiscal agreement, that Report stage will not proceed until the agreement is reached. If he cannot go that far, he should at least go so far as to say that the Bill will not go on the statute book until that agreement is reached and agreed by Parliament.
Scotland Bill
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Lord McAvoy
“Joint Committee on Welfare Devolution
(1) There shall be a Joint Committee on Welfare Devolution to examine the transfer, implementation and operation of the powers devolved to the Scottish Parliament by Part 3 of this Act.
(2) The Joint Committee on Welfare Devolution shall be responsible for ensuring full co-operation, consultation and information-sharing between the United Kingdom Government, the Scottish Government and relevant stakeholders.
(3) The Joint Committee on Welfare Devolution shall publish a report—
(a) on the transfer and implementation of the powers devolved to the Scottish Parliament by Part 3 of this Act, at least once every three months for the first three years from the date on which this Act is passed, and(b) on the operation of the powers devolved to the Scottish Parliament by Part 3 of this Act, at least once in each calendar year, starting three years from the date on which this Act is passed.(4) Schedule (The Joint Committee on Welfare Devolution), which makes further provision in relation to the Joint Committee on Welfare Devolution, has effect.”
Lord McAvoy (Lab)
My Lords, I speak to Amendment 78 standing in my name and that of my noble and learned friend Lord Davidson of Glen Clova. The amendment provides for the establishment of a Joint Committee on welfare devolution that would oversee the transfer and implementation of the welfare and employment support powers transferred under the Bill. This cross-party committee would not only examine the transfer, implementation and operation of these powers; it would also be responsible for ensuring full co-operation, consultation and information-sharing between the UK Government, the Scottish Government and, crucially, the relevant local stakeholders. The committee would be established in a spirit of mutual co-operation and transparency. Those principles must lie at the heart of the devolution settlement and, indeed, are what I believe to be the cornerstones of any future intergovernmental discussions.
The creation of the committee would provide an important mechanism through which the Scottish people can engage with the devolution process, and the membership of the committee would make that clear. Before I get on to why I think such a committee is needed, let me first outline how we envisage such a committee working in practice.
The committee would be made up of 10 members, with equal representation from both the UK and Scottish Governments, including the Secretary of State, UK and Scottish Welfare Ministers—presumably the noble Lord, Lord Freud—Back-Benchers from both Parliaments and representatives from Scottish local government. The committee would determine its own proceedings and, acting jointly, the Secretary of State and Scottish Ministers could appoint an advisory panel on welfare reform comprising academics, representatives from third-sector and voluntary organisations, and any other relevant stakeholders. Following the passing of this Bill, the committee would publish reports every three months for the first three years and annually thereafter. The aim is to provide a truly all-encompassing, all-inclusive process.
The very detailed debate that we have just had about welfare benefits and employment support highlights why such a committee is needed. The work of the noble Lord, Lord Kirkwood, is well known and has been demonstrated in the past 20 minutes or so, so the expertise is certainly there. A number of points were raised that show how such a committee could be of value. The amendments proposed by the noble Lord, Lord Kirkwood, recognise the importance of joined-up working, particularly on welfare. These are extremely complex issues, but I have no doubt that the committee would make a positive contribution during the transition of the welfare provisions, with experts from local government and voluntary organisations feeding into discussions. Indeed, the Scottish Council for Voluntary Organisations warmly welcomed this initiative, stating that it is a,
“pragmatic proposal given the need to ensure continuous, timely delivery of social security payments to those who receive them”.
Lord Dunlop
The noble Lord raises a good point. One thing that I will take away from this debate is to see how we can promote a better understanding of how this group works and the issues that are being discussed. If I can give him this reassurance, I will certainly take that away.
Along with the ministerial group, there is also a senior officials’ group, which covers very much the same agenda of issues as the ministerial group. It is jointly chaired by the DWP director of devolution and the Scottish Government director of welfare, housing and regeneration. It has a remit to meet quarterly; I think that the next meeting is coming up very shortly, on 1 March. As other examples of co-operation, the DWP has seconded officials to the Scottish Government and, as I mentioned earlier, there is a programme to brief Scottish Government officials and get them up to speed on how the existing system works, so that the Scottish Government are in a much better position to determine how they are going to develop the powers that are coming to them.
In terms of parliamentary scrutiny, DWP Ministers and officials obviously appear before the Scottish Parliament Welfare Reform Committee and are available to appear before the committees of this Parliament. On local authority and other stakeholder engagement, the DWP runs three stakeholder forums in Scotland per year to provide operational updates and improve joint working. It engages with a range of stakeholders from CoSLA, Citizens Advice Scotland, the Scottish Federation of Housing Associations, the Prince’s Trust and the Scottish Council for Voluntary Organisations. CoSLA and the Scottish Government are both represented on the universal credit partnerships forum, chaired jointly by the DWP and the Local Government Association.
As to reporting, I am happy to take on board and explore with the Scottish Government how we can improve reporting on the working of the joint ministerial working group on welfare, and our intent would be to provide annual reports on implementation.
Therefore, we regard the amendment tabled by the noble Lord as unnecessary, but it also confuses executive and scrutiny functions and perhaps lacks a clear objective—what outcome are we looking for here? One difficulty is that there is no precedent that I am aware of to fall back on. To whom will this body report? As I have explained, there are better ways to achieve the intent behind this amendment, to which, as I say, I am sympathetic. Therefore I ask the noble Lord to withdraw it.
Lord McAvoy
My Lords, I thank the Minister for his positive response, particularly with regard to his response to the noble Lord, Lord Kirkwood of Kirkhope. I share the Minister’s surprise that he was not aware of it, because he seems to know everything else about social security. However, I am pleased, not by the concession—it is not a case of wanting concessions—but by the confirmation from the Minister that he will look at ways at following up the proposal from the noble Lord, Lord Kirkwood.
As the Minister was outlining all the ministerial and civil servant involvement, I thought that something was glaringly missing, which was the users, the public—some sort of public consultation and representation. He then went on to list a whole host of organisations that the Government have some kind of link with. However, I still feel that there is a case for more direct involvement by users groups and local organisations. I get the feeling that the links with the organisations are perhaps a bit perfunctory. I hope that I am wrong about that but nevertheless there is still a bit of a case for more direct users’ involvement. The system always needs to hear what went wrong and what went right, and so on. Nevertheless, with that little prevarication, I beg leave to withdraw the amendment.
Lord Norton of Louth (Con)
My Lords, I want to reinforce points that have already been made. It is important to stress that we should not let the late hour mask the importance of the amendments before us. As the noble and learned Lord, Lord Wallace of Tankerness, stressed, this clause has important constitutional significance. It raises fundamental issues and I concur with everything that was said by the noble and learned Lord, Lord Hope of Craighead, and reinforced by the noble and learned Lord, Lord Wallace of Tankerness. He referred to the report by the Constitution Committee on the Scotland Bill and I reiterate the comments made by that committee, on which I served, in respect of this clause.
In its report, the committee drew attention to the clause, saying:
“As has become a trend over the years, the Government has put forward a Henry VIII clause which gives it powers well beyond those which are necessary to achieve this end”—
that is, the end of the Bill. It goes on to say that,
“we once again must express our concern at a Government proposal that would provide Ministers with too much power at the expense of Parliament”.
Here we have a Bill that is giving the Government greater powers than is the norm in these types of clauses, as has already been stressed, without any justification for so doing.
It is amazing that we have got to this stage without the Government providing a clear justification for what is before us. We must take our role seriously in terms of acting as a constitutional safeguard to make sure that the Government do not use these measures to take powers that have not been justified by them and which would put us in a difficult situation in any future measures. The Government must take this very seriously and I hope that the Minister will give some commitment that between now and Report changes will be introduced by the Government themselves.
Lord McAvoy
My Lords, I join in the debate and fully endorse all of the speeches made, particularly by the noble and learned Lords, Lord Hope of Craighead and Lord Wallace of Tankerness. As most of my comments have already been made as quotes from the Delegated Powers Committee, I will concentrate on one aspect of this, although I also completely endorse the comments of the noble Lord, Lord Forsyth of Drumlean. It gives me such pleasure to do so.
The comments about scrutiny were made far more eloquently than I could make, so I will just endorse those comments of the noble Lord, Lord Norton of Louth. I want to concentrate particularly on the provision-making policy because it affects a significant amount of social security legislation, which can be of an extremely complicated nature.
In a letter, the Minister said:
“Although extensive checks have been carried out as to the effect of the provisions of this Bill and the interaction with social security legislation, it is possible that, in implementing the provisions of the Bill, consequential amendments are found to be necessary to fulfil Parliamentary intention”.
As the noble Lord, Lord Norton of Louth, mentioned, there is an important constitutional role for the House, even at this time of night.
The memorandum concerning the delegated powers in the Bill states:
“Furthermore, Social security has, until now, broadly remained reserved across Great Britain and delivered on a GB-wide basis by the UK Government. In operating a system where responsibility for the different social security benefits paid in Scotland is split between the UK and Scottish Parliament there may be some areas where the respective Governments may wish to make mutually beneficial agreements relating to delivery which may require consequential amendments to existing legislation—for example to facilitate fraud investigations, debt recovery and compliance issues arising out of overpayments in respect of both reserved and devolved benefits”.
I conclude by joining the comments made by many Members of your Lordships’ House who have spoken tonight. There has got to be a reason—is it laziness, bad draftsmanship or is there a purpose behind it? Were they thought out, were they put down specifically? I join other noble Lords in asking why it was felt these powers were necessary.
Lord Dunlop
First, I thank noble and learned Lords for their contribution to the debate about Clause 68. These provisions have been well scrutinised by the Delegated Powers and Regulatory Reform Committee and I am grateful for the Committee’s examination and subsequent report. Of course, Bills of this nature do require necessary powers to ensure that the powers that are transferring to the Scottish Parliament transfer effectively. That is one point that the committee recognised in its report; it is therefore to retain those aspects of Clause 68. However, having considered the report, the Government accept that the ability to amend future enactments and prerogative instruments, and any other future instruments or documents, and Welsh and Northern Ireland legislation whether made in the future or the past, is unlikely to be required for Parts 1, 4, 5 and 6 of the Scotland Bill. Therefore, we intend to bring forward an appropriate amendment on Report, amending the provisions.
More broadly, powers to make consequential provision are commonly found in primary legislation. Section 105, read with Section 113 of the Scotland Act, provides similar powers. The Bill contains consequential amendments identified as necessary during the course of its preparation. However, given the nature of the Scotland Bill and the significant devolution of legislative and Executive powers, it is difficult to anticipate the full extent of the consequential amendments required once the Bill has been commenced. Further, the nature of the Bill means that it effects both Westminster and Scottish Parliament legislation and it is possible that officials in either Administration may in future identify additional necessary amendments to either primary or secondary legislation.
I turn specifically to the use of the consequential power in relation to welfare provisions:
“In operating a system where responsibility for the different social security benefits paid in Scotland is split between the UK and Scottish Parliament there may be some areas where the respective Governments may wish to make mutually beneficial agreements relating to delivery which may require consequential amendments to existing legislation—for example to facilitate fraud investigations, debt recovery and compliance issues arising out of overpayments in respect of both reserved and devolved benefits”.
How feasible it is to make such arrangements will depend,
“to some degree on the provision that the Scottish Parliament puts in place and any agreements would need to be considered and agreed between both the UK and Scottish Governments”.
Therefore, it is necessary to have appropriate consequential provision in the Bill. However, as I said, the Government intend to bring forward an appropriate amendment on the basis that I have set out.
Next I would like to address the concern of the noble and learned Lord, Lord Wallace, related to,
“any other instrument or document”,
which I think has been proposed by the Law Society. The Government intend to retain the power to amend current instruments or documents. Let me offer the rationale for that. Section 117 of the Scotland Act 1998 provides that, so far as may be necessary for the purpose of or in consequence of an exercise of a function by a Member of the Scottish Government in devolved competence, any pre-commencement enactment or prerogative instrument and any other instrument or document shall be read as if references to a Minister of the Crown were or included references to Scottish Ministers. The effect of the gloss by Clause 30 of the Bill of references to pre-commencement enactment in the Scotland Act 1998 is that instruments or documents such as the contracts entered into by the UK Government for the provision of welfare that refer to a Minister of the Crown will be glossed appropriately to refer to Scottish Ministers.
However, other amendments or transitional arrangements may be required to ensure the efficient and effective transfer of contracts. For example, the gloss converts references only to a Minister of the Crown to Scottish Ministers. There may be other references that need to be amended. Accordingly, a power to amend, repeal, revoke or modify any other instruments or documents whenever passed or made is required for Part 3. We accept that the power to amend any other future instruments or documents is unlikely to be required, as I have said, in relation to Parts 1, 4, 5 and 6, and we will be bringing forward an amendment to address this issue. We are retaining the power to amend existing instruments and documents on the basis that that is likely to be required, given the scale of the powers being devolved to the Scottish Parliament and Scottish Ministers.
Scotland Bill
Lord McAvoy Excerpts(8 years, 10 months ago)
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Lord McAvoy
Lord McAvoy (Lab)
I am so used to my noble and learned friend Lord Davidson speaking for me that I almost mistimed rising to move this amendment, which would allow for the scrutiny and review of previous tendering arrangements. Amendments 63 and 64 in this group stand in my name and that of my noble and learned friend Lord Davidson of Glen Clova. They are minor but important amendments, which would alter Section 25 of the Railways Act 1993 by removing the prohibition on public sector operators bidding for a franchise in relation to a Scottish franchise agreement. They would also establish legislative review and evaluation procedures.
The Smith commission report states that,
“power will be devolved to the Scottish Government to allow public sector operators to bid for rail franchises funded and specified by Scottish Ministers”.
The amendment would go a small but significant step beyond that by allowing not-for-profit operators also to bid in the process, echoing what the right honourable Gordon Brown proposed prior to the referendum. The Scottish Government are already responsible for letting and funding the ScotRail franchise. The legal framework for letting the franchise is provided by the Railways Act 1993, the Transport Act 2000 and the Railways Act 2005. These collectively preclude state-controlled organisations from bidding for franchises.
The paradox is, however, that state-controlled bodies from other countries are not precluded from holding a franchise. Members of your Lordships’ House will no doubt be aware that as a result of this anomaly, Abellio, an offshoot of the Dutch national state railway, was recently awarded the ScotRail franchise by the Scottish Government. A number of concerns were raised in response to this decision, not least from trade unions because, given the forthcoming proposals outlined in the Bill, the tendering process could have been delayed, after which the franchise could have been awarded to a public or not-for-profit operator. There has been a number of problems, most notably the cancellation of services after pay talks with the train drivers’ union ASLEF stalled and staff being offered voluntary redundancy despite Abellio guaranteeing that this would not happen. As the general secretary of the RMT has said:
“Scotland could have taken control of its own railways”.
Labour has stated that it believes that:
“The best deal for Scotland is a People’s ScotRail, a railway company whose commitment is not to a group of shareholders or a foreign Government, but to the people of Scotland”.
In the light of this evidence it is vital that while we move forward in the devolution process we learn from the decisions that were taken in the past. The amendment would facilitate this by allowing the scrutiny and review of previous tendering decisions, not to cause any uncertainty or rock the boat in any way but to learn lessons from how things were conducted. I believe that this is a genuine opportunity to enshrine in legislation the value of critical evaluation in the decision-making process. I beg to move.
Lord Dunlop
It is nice to welcome back to the Dispatch Box the noble Lord, Lord McAvoy. Clause 54, to put it simply, will allow public sector operators to bid for and be awarded rail franchises specified and let by the Scottish Ministers. This will provide greater freedom to decide which organisations are eligible to bid for franchises in Scotland and fulfil the Scottish Government’s aspiration to allow public sector operators to participate in the rail franchising market in Scotland. At present, and as with the rest of the UK, not-for-profit entities are not precluded from being rail franchises under the Railways Act 1993. Once Clause 54 is commenced, not-for-profit entities, irrespective of whether they are public or private organisations, will be able to bid for rail franchises, just as other public sector operators will also be able to. As such, the Government do not consider that Amendment 63 is necessary.
Amendment 64 would allow discretion as to whether public sector operators, on commencement of Clause 54, can bid in respect of live procurements where an invitation to tender has already been issued. There are currently no live procurements for Scottish rail franchises. There are two current Scottish franchises: the Caledonian Sleeper services and the ScotRail services. It is the responsibility of the Scottish Government to manage the tendering of these contracts. The ScotRail franchise, for example, the biggest in Scotland, operates over 2,200 train services each day, delivering 92 million passenger journeys each year. In December, it announced a £475 million investment in its rolling stock over three years.
Lord Dunlop
I am happy to give the noble Lord the assurance that we will get clarification. I am happy to write to him on that.
To complete what I was saying, the ScotRail franchise has a break clause after five years, but in practice that means that a new competition for either Scottish rail franchise will not occur until 2020 at the earliest. For those reasons, the Government consider Amendment 64 to be unnecessary and that it would only add uncertainty to the clause. Therefore, I urge the noble Lord to withdraw it.
Lord McAvoy
I thank the Minister for that answer. I particularly welcome his indication of interest from the Scottish Government in discussions and negotiations. That shows that sensible and calm negotiations—not looking for aggressiveness on either side—will deliver to the Scottish Parliament and therefore the Scottish Government the powers that he just outlined. That is an important statement to come out tonight.
A couple of things tonight could almost have been interpreted as doubting the ability of the Scottish people to run the services proposed for devolution in the Bill and hopefully in the fiscal framework—time after time. It is a little insulting to the Scottish people to suggest that we cannot run services in a proper and efficient manner. Doubt has been cast on that, denigrating the ability to come forward and run these things. So I welcome the Minister’s statement and the positive notes coming from the Scottish Government. I beg leave to withdraw the amendment.
Lord Wallace of Tankerness (LD)
My Lords, this group comprises a number of amendments relating to renewable energy. The background is not only proposals for devolution but obviously must be seen against what the Government have done with regard to the Energy Bill, or least what they had done until this House took out the provision relating to the acceleration of the closure of the renewable obligation for onshore wind.
The first set of amendments, Amendments 65, 66, 68, 70, 71 and 72, are concerned with renewable heat incentive schemes. The Smith commission, which of course is holy writ, states at paragraph 41:
“There will be a formal consultative role for the Scottish Government and the Scottish Parliament in designing renewables incentives and the strategic priorities set out in the Energy Strategy and Policy Statement to which OFGEM must have due regard. OFGEM will also lay its annual report and accounts before the Scottish Parliament and submit reports to, and appear before, committees of the Scottish Parliament”.
The initial amendments were intended to incorporate references to the renewable heat incentive schemes, whereas the clause as it stands relates only to renewable electricity incentive schemes. I was grateful to the Minister for writing to me on 1 December last to say that he did not think that this set of amendments was necessary. He indicated that heat was,
“not covered by any of the reservations in the Scotland Act 1998, and so should be treated as already devolved”.
He went on to say that, with specific regard to the renewable heat incentive,
“the Scottish Government already has a formal consultative role on both the domestic and non-domestic RHI schemes. Section 100 of the Energy Act 2008 states that for regulatory changes to RHI schemes, the Secretary of State for Energy and Climate Change”,
had certain obligations relating to the,
“competence of the Scottish Parliament”,
and the “consent of Scottish Ministers” but, where there was not a competence within the Scottish Parliament, he had a consultation requirement on Scottish Ministers. Having received the Minister’s letter, I decided that it was still better to leave these amendments in so that we could have on the record why renewable heat incentives were not included. I know that their omission has caused some concerns in the industry, but this makes it clear that there is nothing to stop the Smith commission recommendation being given full effect in that regard.
There is, however, an important issue with regard to Amendment 68B. On how many occasions in the course of our debates have we heard the Minister pray in aid, “This is what the Smith commission says and this is what we are delivering”? I am sure that the Smith commission was never intended to be a straitjacket, but that is sometimes how it appears. I shall repeat:
“There is to be a formal consultative role for the Scottish Government and the Scottish Parliament in designing renewables incentives and the strategic priorities set out in the Energy Strategy and Policy Statement to which OFGEM must have due regard”.
But look at what is in the Bill. It states in Clause 58:
“(1) The Secretary of State must consult the Scottish Ministers before—
(a) establishing a renewable electricity incentive scheme that applies in Scotland, or
(b) amending such a scheme as it relates to Scotland”.
Let us turn to the next two new subsections:
“(2) Subsection (1) does not apply to amendments that appear to the Secretary of State to be minor or made only for technical or administrative reasons”.
I am actually prepared to live with that. It is probably perfectly reasonable provided that not too wide an interpretation is made of “technical or administrative reasons”. But new subsection (3) goes on to say:
“(3) Subsection (1) does not require the Secretary of State to consult the Scottish Ministers about any levy in connection with a renewable electricity incentive scheme”.
Where in the Smith commission is that exception made? We have heard how important it is that we should stick rigidly to the commission, yet it does not make the exception that the Government seek to import into this provision.
Moreover, the Command Paper which was published almost exactly a year ago stated specifically that, in implementing paragraph 41 of the Smith commission agreement, a clause would be included in the Scotland Bill to,
“establish a broad duty on the Secretary of State to consult the Scottish Government on the design of new incentives to support renewable electricity generation, or the re-design of the existing incentive schemes … The duty will arise where the new incentive would apply in Scotland, or any re-design would affect the way an incentive operates in Scotland. It will apply to incentives that are both statutory and non-statutory in nature”.
If that had been translated into the legislation, it probably would have been fine. The paper was clear that the reference to existing incentive schemes included the renewables obligation and contracts for difference. There were no exemptions, yet exemptions have been added. The Government have to explain to the House why they are departing in a very material way from the recommendations of the Smith commission. Quite clearly, any levy in connection with the renewable electricity incentive scheme could put a coach and horses through what is given by new Section 90C(1), to be inserted into the Scotland Act 1998 under Clause 58. The Government may have a guilty conscience because they sought to bring about the early closure of the renewable obligation in relation to onshore wind and solar panels with precious little, if any, prior consultation with Scottish Ministers. Therefore, they are trying to cover their tracks by this rather niggardly exclusion that they have sought to put in. The Minister owes it to the House to explain why he has driven a coach and horses through that new subsection.
Again, I wrote to the Minister and asked about the consultation with Scottish Ministers. On 21 December, he helpfully responded saying that,
“similarly to the position on the Renewables Heat Incentive, we have not included a requirement to consult Scottish Ministers on the Strategy and Policy Statement … as the Energy Act 2013 already gives Scottish Ministers a clear formal consultative role in the development of the SPS. The process of designing the SPS requires two rounds of consultations where Scottish Ministers can provide their views on the draft document before it is designated. As legislation already exists to address paragraph 41 of the Smith Commission Agreement, no additional provisions have been included in the Scotland Bill”.
It provides us with a rather unusual situation. The Government are saying that something that was already in existence pre the Smith commission is being used to fulfil the recommendation of the Smith commission.
We must assume that the Smith commission was fully aware of what the pre-commission legislative position was because of things such as the British Transport Police. We have been assured that it knew all the implications of what was being proposed. We must assume that it knew the position under the Energy Act 2013.
Lord McAvoy
I am curious about things and about systems. Was there not any report back from the Liberal representatives on the Smith commission to the noble and learned Lord’s party?
Lord Wallace of Tankerness
I do not remember the precise detail of what went in when they came forward with this proposal but I presume—I give credit to those who were on the Smith commission, including the noble Lord’s own party members—that they did not seek to make a recommendation and that it already existed. I hope that the noble Lord would give due credit to the other members of the commission—the Labour members—that they would not have signed up to something that was already there. That is why I want the Minister to explain why he thinks that the Government’s interpretation of that recommendation is satisfied by something that was already in place. Can we not reasonably assume that those who were engaged in this were looking for something more? Indeed, Scottish Renewables is not satisfied that the legislation is sufficient. In an email to me, it said:
“If this recommendation is not to be carried forward through the Scotland Bill, we would like clarification about how any new or improved mechanism will be formalised outside of the primary legislation”.
We have to get some indication from the Government as to what more they are doing than what was already in place before the Smith commission sat.
I fully accept that Amendment 73A goes well beyond the Smith commission, so that probably bottoms it out before I even open my mouth. But there is an important point here as well. When the Smith commission was deliberating, it did not know that several months later the Government would pull the rug from under the onshore wind industry, not just in Scotland but throughout the United Kingdom, by bringing forward the date of closure of the renewables obligation. We are entitled to speculate that, if the Smith commission had deliberated after the announcement to accelerate the closure of the renewable obligation for onshore wind and solar, it may well have incorporated something along the lines of what we propose in Amendment 73A.
Amendment 73A says that:
“Within three months of the passing of this Act, the Secretary of State shall publish proposals to transfer to the Scottish Ministers powers on the awarding of contracts under Contracts for Difference and the setting of electricity feed-in tariffs in respect of electricity generation from renewable sources in Scotland”.
This is quite a major step, but it is very much within the Government’s ability to shape what kind of scheme they would bring forward. We propose this because there are a number of different ways of doing it. There could be a full set of powers through a suitable adaptation of the Energy Act 2013; the Government may wish to limit it to onshore wind to encourage electricity generation by onshore wind; or it could be done by an intergovernmental agreement on budget limits and a restriction on the power to set the strike price.
Lord Curry of Kirkharle (CB)
My Lords, I welcome the opportunity to participate in Committee on the Scotland Bill. I support the comments of the noble Baroness, Lady Quin, and the noble Lord, Lord Shipley. The noble Viscount, Lord Ridley, has also put his name to the amendment.
I support Amendment 73C, requiring the preparation of a report reviewing the impact of Parts 2 to 5 of the Bill on the areas adjoining Scotland, particularly Cumbria and the north-east of England. Having been born and bred in Northumberland, I naturally have a vested interest in its economic welfare, and I am concerned when I suspect that legislation such as this may indirectly, but perhaps significantly, disadvantage the north-east. I was a member of the Adonis review team, which was commissioned to look at the economy of the north-east of England. As a consequence, I am critically aware of the interdependencies between Scotland and the north-east of England.
According to the Scottish Government’s figures, which the noble Lord, Lord Shipley, has already cited, £1,200 more per capita of public expenditure is spent in Scotland than in England. The Bill will allow further investment in Scotland, which is good for Scotland—like my colleagues, I do not oppose the Bill—but the consequence could be that the gap becomes even wider, to the economic detriment of the north-east. This is serious in view of the fact that many of the social indicators, geographic challenges and historic dependence on heavy industries are very similar in the north-east of England to those in Scotland.
Not only does the north-east receive some of the lowest funding in England, it borders Scotland, which has the highest spend per capita in the United Kingdom due to the Barnett formula, which will have increased benefits as a consequence of the Bill. The current irrelevance of the Barnett formula has been widely recognised, even by Lord Barnett himself, who called it “grossly unfair” and called for it to be scrapped. It was deeply regrettable that the Prime Minister gave an undertaking at the time of the Scottish independence referendum not to review it. I believe that it should be reviewed and that it is now unavoidable and overdue, and that will become even more apparent if an economic report was prepared and published after one year, as we have suggested in this amendment.
I fully understand that the north-east is included in the northern powerhouse concept. As noble Lords know, we in the north-east have constantly to remind Whitehall that the northern region does not end in Manchester, York or Leeds. Even if the investment promised in the northern powerhouse materialises, it will not compensate for the shortfall in public expenditure. So the north-east is still expected to compete with both Scotland and much of England, despite receiving much lower public support. The noble Lord has mentioned the potential impact on the airport in Newcastle. One could not conceive of a situation where London Stansted was granted special favour over Heathrow—yet that is exactly what may happen between Edinburgh and Newcastle.
I expect the Minister to counter our arguments by referencing the devolution agreement for the north-east. This is very welcome and a huge step forward, but it does not compensate for the differential in funding between the north-east, Scotland and much of England. The north-east is proud of its history; it is making good progress in reducing unemployment and increasing economic growth, but it could contribute even more to the overall economy of the United Kingdom, given a more level playing field. For these reasons, I support this amendment, and I hope that it will be supported by the Minister.
Lord McAvoy
My Lords, I rise to congratulate my noble friend Lady Quin, who is a long-standing friend of Scotland, and tonight has epitomised concerns not only for her own north-east homeland and heartland but also of her fellow citizens in Scotland. She has been a great supporter of Scottish causes throughout the years and a doughty champion for her own north-east area. It is a tribute to her commitment to both these areas that she has been here so long waiting patiently—or maybe impatiently—as the night wore on.
As was the case on the first day in Committee, on the face of it a review is reasonable enough. I accept that these are probing amendments, but we have mild objections on the grounds that they afford no agency to the Scottish Parliament when it comes to the parties to be consulted and the general scope and remit of the review, and it is generally left to the discretion of Secretary of State. When there is a lack of parameters or involvement with the Scottish Parliament, that provides the Secretary of State with considerable scope to set the terms of any convention and what is reviewed.
We think that the answer, or at least part of it, lies in the constitutional convention that we support, which would involve every nation and region in the country being engaged in a dialogue with the people about how power needs to be dispersed, not just in Scotland, Wales and Northern Ireland but in England, too. Quite rightly, there are concerns, particularly in the north-east and Cumbria, and maybe in other parts of England as well, that there is no detriment to their areas with the passing of more devolution to the Scottish Parliament. It is quite right that these concerns are raised; they are representing their areas well in bringing these concerns.
I do not know the noble Lord, Lord Shipley, that well, but I certainly know my noble friend and know that she will be motivated. As the noble Lord, Lord Shipley, said, it is a concern not just for one side of the border but for both sides so that we can all come to a mutual way of working and find forums for agreeing matters of dispute or interest, or problems causing particular tension. I welcome the discussion from both my noble friend Lady Quin and the noble Lord, Lord Shipley, and I commend both of them for bringing this forward for discussion.
Lord Dunlop
First, I echo what the noble Lord, Lord McAvoy, said about the noble Baroness, Lady Quin, who I know to be a doughty champion for the north-east. I support the sentiment behind the amendment; Governments should always consider the impact on the union and, in particular, the economy, when they make decisions. Likewise, before and after making policy, Governments should as a matter of course assess whether any particular region is impacted disproportionately. That is not just my view; it is this Government’s stated policy and our approach in practice. Not only that, but there are opportunities for Parliament to scrutinise the Government as they do this and hold us to account. I welcome and encourage that scrutiny.
The UK Government have considered carefully the impact of devolution on the union as a whole throughout the development process for this Bill. The commission set up by the noble Lord, Lord Smith of Kelvin, had that at its heart. One of the principles under which the commission operated was to,
“not cause detriment to the UK as a whole nor to any of its constituent parts”.
As the Committee will be aware, the UK Government and the Smith commission rejected candidates for devolution—for example, the devolution of national insurance. I believe it is right that they did, precisely because devolution of such areas could undermine the union. However, the UK Government also believe that devolution to the Scottish Parliament will make it more accountable to the people who elect it. Our objective has always been to encourage that accountability without undermining the union. Let me reassure the Committee that this Government do not require a legal requirement in the Scotland Bill to ensure that we take these considerations into account.
I hope I can give similar reassurance on how the UK Government consider the impact of policy-making on specific regions and locations. This Government are committed to rebalancing growth across the country, from creating a northern powerhouse to strengthening our great city regions. A number of noble Lords mentioned this. To give a specific example, the UK Government are well aware of the potential impact of the devolution of air passenger duty. That is why we have issued a discussion paper and consultation to engage stakeholders and find a workable solution. There are procedures in place. These policies are scrutinised in Parliament and open to challenge, especially in the other place where MPs can represent their constituency interests in Parliament.
The noble Baroness suggested joint working on projects on both sides of the border. I entirely agree with that sentiment. The borderlands initiative is a good example of that sort of work. The noble Lord, Lord Shipley, raised reporting. I am very happy to look at it as a subject and at how it could be further improved. I am always happy to meet, and I would be very happy to meet him.
While I fully support the sentiment behind these amendments, I do not believe requirements in legislation are necessary. The UK Government are committed to this approach. The fiscal framework and how we put into practice the no-detriment principle were raised by a number of noble Lords. I am certain that we will return to them on our next day in Committee. I urge the noble Baroness to withdraw the amendment.
Scotland Bill
Lord McAvoy Excerpts(8 years, 10 months ago)
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The Earl of Kinnoull
I am very grateful for that as well. In my commercial career, that option has sorted out a number other problems and is a very useful technique. I would be very interested to hear the Minister’s views on what I have just said and on everything that everyone has said in what has been a very interesting debate on this vital area.
Lord McAvoy (Lab)
My Lords, I apologise to the Committee for not being able to be here for start of the proceedings. I was away officially on Whips’ business. I thank my noble and learned friend Lord Davidson of Glen Clova for holding the fort so well.
The Bill makes the functions of the British Transport Police a devolved matter. I associate myself with all the praise expressed for the British Transport Police and its record since 1825. I have no hesitation in doing so.
I have only one comment to make about the contribution by the noble Lord, Lord Empey. I fully understand where he is coming from; he is ad-libbing about the language situation in Northern Ireland. The situation is a wee bit more hopeful than he has perhaps indicated: there are classes in Irish in solid unionist east Belfast, so there are glimmers of hope.
In the opening contribution from the noble and learned Lord, Lord Wallace of Tankerness, he regretted and bemoaned that the Labour Party did not do what he wanted it to do in the Scottish Parliament. I can understand that disappointment and possible resentment, because the Labour Party here had to stand back and watch for five years as the Liberal Democrats backed every vicious and vindictive proposal on welfare put forward by a Conservative Government, with never a word against.
Clause 43 devolves executive competence in relation to the policing of railways in Scotland by specifying as a cross-border authority the British Transport Police Authority, the chief constable of the British Transport Police, the deputy chief constable of the British Transport Police and the assistant chief constable of the British Transport Police. This is in keeping with the Smith agreement, which states:
“The functions of the British Transport Police in Scotland will be a devolved matter”.
That was agreed. I understand also the suspicion and resentment that some Scottish National Party people seem unfortunately to be expressing the desire to get rid of the word “British”. I regret that. If that is their motivation, it does not say much for them, and we should concentrate on the core of the matter.
Designating the British transport bodies as cross-border public authorities means that appointments to the British Transport Police Authority or to the offices of chief constable, deputy chief constable or assistant chief constable will in future be able to be made only in consultation with Scottish Ministers. I know I should not have to say this but it should be on the record: devolution is devolution. You cannot agree the principle of devolution and then object to its effects. Devolution is devolution.
Lord Forsyth of Drumlean
Yes, devolution is devolution, but, as was made clear earlier in the debate, this is a matter that affects the security of the whole of the United Kingdom. The noble Lord knows very well that the SNP Justice Minister has indicated that he wants to break up the British Transport Police. Is the Opposition Front Bench really supporting this in the face of all the evidence that has come from the trade unions and the former leaders of the British Transport Police? Surely that is an extraordinary position for it to take.
Lord McAvoy
The noble Lord, Lord Forsyth of Drumlean, always takes a keen interest in the position of the Labour Front Bench. The fact is that the Labour Party supports the Smith commission, as do the Liberal Democrats and the Conservative Government. There is consensus. I know the noble Lord does not really like being described as a consensual figure—he would probably regard it as an insult—but devolution is devolution and it can, will and should be worked out in that atmosphere. I know the noble Lord is a bit puzzled by that, but I have accepted devolution and he should do the same and move on.
In March last year, as the noble Lord has indicated, the Scottish Justice Secretary signalled the Scottish Government’s intention that the BTP’s functions would be transferred to Police Scotland following the passing of this Bill. Once the power is devolved to the Scottish Government, that is of course a decision for them to make and to justify to the Scottish public, the Scottish electorate and the communities within Scotland. Having said that, in recent months there have been a number of legitimate question marks over the way in which the Scottish Government have chosen to manage the resources of the police force in Scotland since we have had this Police Scotland set-up, with police stations being shut—as my noble friend Lord McFall of Alcluith has mentioned—call centres being closed and much-needed front-line police doing back-office functions. I make it clear that this is no reflection of the phenomenal work that our police officers do on a daily basis. However, we should view this as a further opportunity, and I have no objection to it, at the very least to assess all the possible implications of a merger between Police Scotland and the British Transport Police.
Lord Berkeley
If my noble friend is suggesting that it is Labour Party policy to devolve the British Transport Police, does the same apply to railways? I was not aware of that. Network Rail could be separate, of course; we could even have a separate gauge. I thought the whole idea was that we should actually have an integrated system.
Lord McAvoy
I thought I had all the trouble in front of me, but I have some behind me here as well.
Lord McAvoy
We will see about that. The facts of life are that the Labour Party is a democratic institution. We have arrived at support for devolution. The Smith commission worked very hard to come up with the answer to it, as much as possible, and that is what we support. Perhaps my noble friend Lord Berkeley will explain to me later the effects of this on the intricacies of gauges. It is funny, and I laugh as well, but we are dealing with a serious matter. The Labour Party supports devolution and all its consequences. At the end of the day, whether folk like it or not, it is ultimately the Scottish people who will decide. I trust the people. Sometimes that backfires on us, like last year, but I trust the Scottish people because I am a democrat and Scotland under devolution is a democracy.
Lord Empey
I know that the noble Lord is a great supporter of devolution; he has indicated that on many occasions. I support it too. However, what we are talking about is not yet devolved, and that is quite a distinct difference. In many cases, where something has been devolved we can complain about how it has been operated, but this is not yet devolved, unless the Minister and the Government are treating the Smith commission as if it were a treaty—in other words, it is unamendable—in which case there is no point in bringing it here.
I understood that the function of Parliament was to examine legislation. While all the parties—unwisely, it seems to me—are basically supportive of the general principles here, there are specific issues. It is not simply the people of Scotland who will be affected by this; it is the rest of the people in Great Britain. That is why I believe there is a difference. If—with, one hopes, the maximum consensus—we can actually find something better, such as our compromise over the National Crime Agency, I would hope that the Labour Party would support that. I am not trying in any way to rubbish devolution. I know that the commitments were made, although I am quite sure that the noble Lord would have preferred if some of them had not been. Judging by his expression, I believe I am right there. Nevertheless we have a responsibility, and I think that this matter should be pursued.
Lord McAvoy
I thank the noble Lord, Lord Empey, for his contribution, but no one said that there should be no discussion. The facts of life are that in the House of Commons no one moved an amendment to the contrary. We did not move one. We have moved one here because we want more information about attitudes and, perhaps, information regarding discussions with the Scottish Government. None of the unionist parties in the Commons moved an amendment, nor did the Liberals; in fact no one did, so there must have been general acceptance in the Commons for the principle. No one said then that nothing should be changed from the Smith commission, though we will wait and see how that goes. Discussions will take place but I do not think they will make any progress. This idea has been thought through by the Smith commission and in the Commons, which is the supreme House of Parliament, and no one has seen fit to move the amendment, except us—to be fair, I think that the Liberals have come in for this reason as well—in order to get further discussion on it.
We share some of the concerns about the Scottish Government’s record on the single police force; we do not like it and have very grave doubts about it. However, there are strong views to take into account, including those of the British Transport Police, and in particular those of officers employed in Scotland, as well as the unions. Both have expressed concern about the implications for staff and passengers if these special policing skills were to be lost—and it would be wrong for that to happen.
Lord McAvoy
I made no such suggestion. If the noble Lord would stop looking astonished at every second word that I say, he may understand what I am saying. The Smith commission was a hard process where five parties took part. He is decrying and insulting the good faith of the people who arrived at that conclusion. They spent a long time on it and went into a lot of detail. I believe that they did that in good faith and he should stop denigrating the people involved. The proposal was put through that process and arrived at after long consideration, and I support it.
Lord Forsyth of Drumlean
I am not denigrating anybody, but I gently remind the noble Lord that quite a few of those who took part in the process are no longer involved in parliamentary affairs. He says that it was agreed by all the parties, but none of the parties was consulted about this. This was a deal and a negotiation. I wager him a bottle of champagne that very few of the people involved in negotiations even knew that the British Transport Police was largely funded by the transport operators. I suggest that that is the case. The complexities involved would be unknown to them.
The noble Lord knows as well as I do that a problem was created after the referendum. People were desperate to find things to devolve. I can just see people saying, “Oh yes, the British Transport Police can be devolved”. The people concerned would not have had a clue about the intricacies of how the British Transport Police was funded. Perhaps the noble Lord is smarter than I am and perhaps he is aware of that, but as Secretary of State I was not aware of the detail of this until I discovered the need to look into it as a result of this amendment. I do not believe for a moment that those people acting in good faith knew the consequences of what was proposed.
Actually, the Smith commission does not require the Government to break up the British Transport Police or to act in the way that is provided in this clause. I ask my noble friend to think again please and perhaps talk to the Scottish Government. There is a compromise to be had that will meet the needs of both sides of the border and the needs of the country as a whole in respect of security—at a time when national security is absolutely at the top of the agenda and the security of our transport systems must be the number one issue of concern.