Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Nickson Excerpts

Wednesday 16th January 2013 Lords Chamber

[Lord McConnell of Glenscorrodale]

My Lords, when the noble and learned Lord, Lord Wallace of Tankerness, was Deputy First Minister of Scotland and I was First Minister of Scotland, there were probably times when he felt as if he was defending me against a murder charge, as described by the noble Lord, Lord Forsyth, earlier. I, too, appreciated the eloquence with which the noble and learned Lord introduced our debate this afternoon and his appreciation of devolution. I am also aware that we discuss these issues against hundreds of years of history—this month, in suppers all over the world, we will celebrate that century in which Scotland joined the union, and led the world in literature, science, engineering, philosophy and, of course, also in poetry. However, today, we debate only this order; not the outcome of a referendum and not the overall pros and cons of independence or separation.

I start my brief remarks by saying that I have believed passionately, since that 1979 referendum on devolution, that a devolved Scottish Parliament, inside the United Kingdom, is the best form of government for Scotland. I believe in shared sovereignty, which I believe we have. I also believe that despite the mistakes that have been made and will be made in the future by Scotland’s Parliament—just as this Parliament makes mistakes—Scotland is a better place today for having that devolved Parliament than it was 14 years ago.

However, we are not debating that principle today, nor the principle of independence, but the organisation of a referendum and the legal authority for it. In the 1990s and, after devolution, in the first decade of this century, I vehemently opposed the idea that there should be a referendum on independence because I believed that the uncertainty that it would create would be harmful for Scotland. However, we are in new circumstances and it is absolutely right that we now have that vote, which will decide Scotland’s future. It is time to make that decision, following the outcome of the Scottish elections last year and given the political situation in which we now find ourselves. I supported the Prime Minister last January in his announcement that he wished to see the Scottish Parliament have the legal authority to conduct a referendum and that he was prepared to enter into negotiations to secure that outcome. I supported that position enthusiastically. I thought it was the right thing to do on principle and in practice—a binding referendum is good for everyone.

However, in my view, that referendum has to be based on transparent financing and fair rules, and should have been held without delay. I made a submission to that effect to both the UK Government and the Scottish Government last March. In particular, I say again—I hope the Electoral Commission is listening—that I advocated that we should not have a single question. It is not that we should have two different questions on two different topics but that the question itself—I think the noble Lord, Lord Steel, has made this same point—should be two distinct statements, from which voters are allowed to choose: either Scotland as an independent country or Scotland as a member of the United Kingdom.

That said, we are in a different place today, and I believe strongly in the principle of respect between the United Kingdom Government here in London and the Government in Edinburgh. That agreement has to involve our being willing today to criticise the outcome of these negotiations, but also respect the fact that the Prime Minister and the First Minister have shaken hands on the deal.

I do not want to go back over all the points that have been made but, as others have said, the outcome is that the delay in this referendum will cost Scotland jobs. No one should be in any doubt about that whatever. I have met companies in the United Kingdom, North America and elsewhere that are already delaying decisions about whether to invest in Scotland. They will delay even more between now and the autumn of 2014. The way in which the UK Government agreed to the Scottish Government putting this vote off until late 2014 was a grave error by both Governments that will cost the people of Scotland and the Scottish economy dearly, not just for the next 18 months but for years to come after that.

I do not want to repeat points that were made earlier, but on the rules, an additional point is that this referendum will be divisive enough in Scotland without having rules that are perceived by one side or the other to be unfair. One can already see prominent and reasonable people in public life tearing each other apart, with relationships and friendships breaking down. This will happen increasingly over the next 18 months. To add to that any perception that the referendum is unfair or conducted with unfair rules will, in the aftermath, leave a sour taste in the mouth that will take years to overcome in Scotland, and lead to a lack of acceptance of the outcome unless it is very decisive.

I understand the point that the Government are making. The principle of devolving the legislative authority means that we will devolve the detailed decision-making as well. However I do not think it was politically impossible to strike a deal openly and transparently between all concerned in advance of this legal authority being devolved, which would have secured more details here and now. For perhaps the very first time in the 30 or so years that I have known him, the noble Lord, Lord Forsyth, and I strongly agree on that point. I suspect we will not make a habit of it. I understand that he will not press his amendments, but at the same time I think he is wrong even to suggest that we should undermine the agreement that has been reached between the Prime Minister and the First Minister.

When I was First Minister I never really had a position on whether the detailed discussions that took place between me, the Prime Minister and his colleagues should become public or not. Therefore people are perhaps not aware of when we agreed or disagreed, and when agreements were implemented or not implemented. However, there is nothing worse for those who lead Parliaments than to be in a situation in which they strike deals with other leaders but are then undermined in their negotiating position and their ability to implement it. Whatever feelings there are towards this agreement, we need to respect the fact that a deal was done, they shook hands and we now have to get on with the debate. To undermine that would leave an impression of bad faith that would be damaging for the devolution settlement as well as for the referendum campaign itself.

We should endorse the order, but we should express very clearly to the Government that the next time they negotiate with the Scottish Government, they need to negotiate much harder. However, we also need to get on with this debate. We need to make the case that, after 300 or so years—in this month when we celebrate the amazing contribution that Scotland made to the union, which we joined back in the 18th century—it is time to celebrate that and have a positive campaign. That campaign should spell out the dangers but also the hope that exists if we retain our membership of the United Kingdom and do so decisively, putting this whole debate—this division that has plagued us for decades—behind us once and for all.

[Lord Nickson]

My Lords, perhaps I may make three brief points. I am disappointed on two counts. It is quite right that the noble Lord, Lord Forsyth, is not taking us through the Lobby, but after his inspiring and marvellous speech, it is a disappointment to me that I cannot go through the Lobby behind him to support him. It was one of the great speeches on an issue of huge importance to us all and it has been nobly supported on this side.

It is a slight disappointment and surprise to me that no one from the Constitution Committee of this House, which has produced the report on the agreement, has come to speak in the debate. The report is in the Printed Paper Office. I shall give way to the noble Lord, Lord Crickhowell, and it is wonderful to see him. I shall not delay him for more than a few seconds.

Many of us in this Chamber, and many who are not currently in the Chamber, attended a meeting this morning by courtesy of the noble Lord, Lord Astor of Hever, and the Minister for the Armed Forces. The meeting was about defence. It was an extremely useful meeting. Many noble Lords who are here in the Chamber made extraordinarily important points. I should like to highlight two of them. One was that it would be extremely helpful if similar meetings could take place with the other great departments of state on the other issues involved. The second was that it would be a very good thing if there was more identification of leadership from No. 10 and the Prime Minister on the Better Together campaign.

I should like to draw the attention of the House to the CBI document, The Scottish Government’s Independence White Paper, which came out this week. It lists questions on all the issues to which Members of this House would want to draw attention and provides an encyclopaedic examination for the SNP and Alex Salmond. I commend the document to the House because it covers all the questions to which we seek answers. I look forward very much to hearing the noble Lord, Lord Crickhowell.

[Lord Crickhowell]

Encouraged by the noble Lord who has just spoken, I should like to take the opportunity as a member of the Constitution Committee to put on the record of this Chamber some of the important points that we made in the report that we published on 13 November, a report that has been freely quoted today both by my noble friend and by others.

We made it clear that the Section 30 route that we are taking, rather than using primary legislation at Westminster, has a number of significant constitutional and legal consequences. As we can see all too clearly, and as the report states, it,

“significantly curtails the opportunity of the UK Parliament to have an effective input into the process. The Agreement was negotiated in private between the UK and Scottish Governments … There was no debate in either House of the UK Parliament on the Agreement until after it had been finalised”.

And, as we are learning very painfully this week, we said that,

“neither the House of Commons, the House of Lords, nor the Scottish Parliament will be able to amend the Order”.

We stated at paragraph 21:

“The House may consider that, despite the constitutional significance of the draft section 30 Order, the procedure makes it impossible to ensure fully effective scrutiny … It is hard to avoid the conclusion that more could have been done to include the United Kingdom Parliament in this process”.

We then made a crucial point:

“Neither the draft section 30 Order nor any other part of the Agreement stipulates what the referendum question is to be. This will be”—

as we have learnt—

“a matter for the Scottish Government to propose and for the Scottish Parliament to determine”.