Scotland Bill

Lord Neill of Bladen Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Wallace of Tankerness]

The noble Lord makes an interesting and constructive proposal. I agree with the object of what he is proposing: it must be a question that is fair and brooks no division or challenge afterwards. This is perhaps relevant for the next group of amendments on the role of the Electoral Commission. It has an important and tried and tested role to play in this, so perhaps this is an issue that we will return to on the next group of amendments.

[Lord Neill of Bladen]

Someone said that the question, or part of the question, might be, “Do you consider the referendum to be legal?”. That would be a fatal question to put. It is an extraordinarily difficult legal question, and there is no reason why the ordinary voter should have a view that is entitled to any weight on that. However, he will certainly be asked whether he wants to have one country or two, in the language there is for that. To ask, “Do you think it would be legal?”, would be a mistake.

[Lord Wallace of Tankerness]

My Lords, I do not think anyone is suggesting putting on the ballot paper, “Do you think it is legal?”. That would ultimately be a matter for the courts to determine. The collective view is that we should find a way forward that, as best as anyone can, puts that question beyond doubt. That is why we recommend a Section 30 order as the best way of achieving that.

Let me make progress and allow others to contribute. Early analysis of the consultation responses shows clear support for a referendum with a single question on independence. We will take this support for our position into discussions on the Section 30 order. We must be clear that the Scottish Government in their own consultation paper state that their preference is for a single question on independence.

Finally, on the amendments that consider whether a referendum on independence should be held in Scotland or across the United Kingdom, I readily recognise that a decision for Scotland to leave the United Kingdom would have significant implications for those left in the remainder of the United Kingdom. However, it has already been articulated by the noble Lord, Lord Reid, that the question of whether Scotland remains part of the UK or becomes independent is for the people of Scotland alone to answer.

The noble Lord, Lord Foulkes, said that we should set some targets. I hope that in this debate and the debate on the next group of amendments the Government can get a flavour of what your Lordships believe are the important targets and issues that we should strive to achieve in subsequent negotiations.

--- Later in debate ---

The noble Marquess, Lord Lothian, who is also not in his place, proceeded to write a book about that sentence, making the point that we in Northern Ireland took the wrong meaning from it because of the punctuation. That goes to show that when dealing with these matters one has to be extremely careful what one says. The small print and, in this case, the punctuation can be just as important.

[Lord Neill of Bladen]

Is the noble Lord, Lord Empey, contemplating circumstances where there would be referenda in countries other than Scotland? He said Parliaments, their representatives and the people would have to make up their own minds in their own countries. That was English people, the Welsh Assembly and so on. Supposing that these problems arise, does he envisage by the phrase “another route” that there might be a referendum in England, Wales and Northern Ireland?

[Lord Empey]

I hope that that would not be necessary. I certainly believe that the best outcome is that Parliament itself, which is a combination of representatives from all parts of the United Kingdom, should be where those decisions are made. The noble Lord, Lord Reid, raised the possibility that, for whatever reason, that might not be possible. I find it hard to envisage circumstances where it would not be, but if Scotland’s relationship within the United Kingdom changed, whether as devo-max, devo-plus or whatever, and it was not possible for Parliament to agree on how that could be implemented, then under those circumstances the rest of the United Kingdom should be consulted. Yet I find it hard to envisage circumstances where Parliament cannot resolve that.

[Lord Reid of Cardowan]

Perhaps I can help the noble Lord. I, too, have reservations about the fact that, if there was a discussion about some different form of devolution, it would come to the UK Parliament to decide. I have an inkling that if the effect of such discussions at some stage in the future was to effectively constitute a federal Britain, then Parliament might well think that that was a constitutional issue of such magnitude that the people should be consulted. I merely give that as a possibility.

[Lord Neill of Bladen]

An obvious difficulty arises once you get into consulting constituents of other countries—England, Wales and Northern Ireland—which is: in what order do you take the referendum? What effect will it have if, we assume, in Scotland the referendum is passed with acclaim but other countries, such as England and Wales, say, “No, it is very damaging and we are against it”?

[Lord Reid of Cardowan]

I hesitate to start discussing another referendum when we have spent so long on this one. To try to take the hypothetical situation, Scotland wishes to stay inside the United Kingdom and the Scottish Parliament or people wish to go on to discuss further powers. The negotiations conclude with what is effectively a federal system in the United Kingdom that affects Wales and Northern Ireland as well as Scotland. Then, one option is for the British Parliament to address that. Another might be, hypothetically, to put it to all the peoples in the UK at the same time as a referendum on the constitutional settlement. The important point is that the first decision has to be a simple one: “Do you want to stay inside the union, or be outside it as a separate nation state?”. That is a decision for the Scottish people alone.

Scotland Bill

Lord Neill of Bladen Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Foulkes of Cumnock]

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

[Lord Neill of Bladen]

I refer to the letter from the Scottish judges asking for additional clauses to be put into the Scotland Bill. Where does that fit into the Minister’s programme? How do we handle that?

[Lord Wallace of Tankerness]

My Lords, first, I thank the noble Lord, Lord Foulkes, for welcoming this. We recognised the issue and found a way to resolve it. On the question asked by the noble Lord, Lord Neill, I certainly recognise the importance of the letter sent by the Lord President of the Court of Session. It is likely, although one can never be sure, that the clause to which that relates in Part 2 of the Bill will be debated on Thursday 2 February. I hope that copies of the letter will be available in the Printed Paper Office for our consideration. There are both government amendments and amendments in the name of the noble and learned Lord, Lord McCluskey, which I am sure will allow us to have a very full and informed debate on that issue.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Neill of Bladen Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My noble friend well knows that where recklessness goes into intent is not always very clear. I very much hear the point that he is making; I want to reflect on it. There is a continuum, but I have made it clear that it certainly does not include negligence. That is why we are concerned about “unlawful”, because that opens the provision beyond what is intended and could lead to cases of damages for what are not by any stretch of the imagination serious consequences or serious harm for the individual.

[Lord Neill of Bladen]

On Paragraph 19(6), the Minister said that the word deliberate would not cover negligence. What is a deliberate act intended to cover? Most people, when they do things, do them deliberately. Is that what it means, or anything beyond that?

[Lord Wallace of Tankerness]

As I said earlier, when my noble friend asked whether deliberate meant intentional, that is what it means: it is an intentional act of a public authority. The question is: if it is a mistake that leads to considerable harm but is not deliberate or dishonest, will legal aid not be available? I hope that I have indicated that no, under paragraph 19 it would not be available but, as I said, paragraph 20, which covers a significant breach of human rights, might nevertheless allow for funding in those circumstances, or cases might be taken forward by way of judicial review, which might be available for funding.

There is a range of provision in Schedule 1 for cases to be taken forward against public authorities, not solely on the particular part of the schedule to which the amendment of the noble Lord, Lord Ramsbotham, is directed.

European Court of Human Rights

Lord Neill of Bladen Excerpts

Thursday 24th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as I have indicated, we hope that during the period of our chairmanship of the Council of Europe we will be able to take forward the reforms. All 47 members of the council believe that there ought to be reforms. We want to look at ways in which we can make the court more effective and efficient in dealing with the backlog and, as I have said, to reinforce the idea that the court’s role should be a subsidiary one; namely, that member states should have the primary responsibility for protecting convention rights in their own country. We hope that we can make progress on that during our chairmanship.

[Lord Neill of Bladen]

My Lords, will the Minister comment on the position of the Supreme Court? So far he has talked about government action, but the Supreme Court said in 2009, in a case called Horncastle, that it can decide not to follow a decision of the court in rare cases where that court has failed to “appreciate or accommodate” particular aspects of our domestic process. In such a case the Supreme Court can refuse to follow it, giving reasons, in the hope that that will then be picked up in a subsequent judgment by the court in Strasbourg. Do the Government have a position on whether that is a satisfactory arrangement?

Parliamentary Voting System and Constituencies Bill

Lord Neill of Bladen Excerpts

Monday 7th February 2011 Lords Chamber

[Lord Neill of Bladen]

Before the Minister answers that question, I must confess to being slightly baffled by where we are moving to. The Long Title of the Bill is that it is a Bill to:

“Make provision for a referendum on the voting system for parliamentary elections and to provide for parliamentary elections to be held under the alternative vote system”.

The amendment that the noble Lord, Lord Campbell-Savours, is putting forward drops those words about the alternative vote system. The question becomes, “Should the first past the post system be changed and a different system of elected MPs be introduced in the next general election?” We know from the many speeches that have been made that there are a mass of alternatives and variants. The population—the voters—are potentially voting for a whole series of different amendments. You have not then got the answer that you were meant to get. The Long Title goes on to say that it will provide for voting,

“under the alternative vote system if a majority of those voting in the referendum are in favour of that”.

They may be in favour of three or four different things. There is no single system for which they are voting. I find that a puzzling result and some thought needs to be given to it.

Parliamentary Voting System and Constituencies Bill

Lord Neill of Bladen Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord Wallace of Tankerness]

As I am sure the noble and learned Lord knows, these will ultimately be matters for the court but that is certainly our understanding, or my belief.

[Lord Neill of Bladen]

Before the noble and learned Lord finishes on that point, I feel some concern that he is not prepared to put on to the statute book the view which he has just expressed: that title and interest would necessarily be found by a court to exist here. The worry would be that there could, theoretically, be people advising in Scotland who will be unaware of the discussion now taking place and of the deliberate abstention from following up Lord Gill’s advice on a one-off basis on this very point, where there is potentially a conflict between the practice in Scotland and that in England. Would it not be possible to think of some way of putting on to the statute book information so that anyone advising would see that title and interest were thought to be, by the Minister or by the Government, both present in this case?

[Lord Wallace of Tankerness]

That is an important point, one which I wish to reflect on. I think it is satisfactory as it stands, but I understand what the noble Lord is saying: that there may be circumstances where, in the absence of any reference, someone may not appreciate that fact. Without making any commitment, I will look at that and see whether there is a way. As I have indicated, as the amendment stands there is a problem, too. In fact on interest alone, regardless of anything else, it would qualify and I am sure that is not what the noble Lord intended.

I think I am right in saying that the debate on whether the schedule be agreed is also a part of this, but perhaps I can reply later to that debate as part of this group.