Scotland Bill

Lord Reid of Cardowan Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Foulkes of Cumnock]

The noble Lord is anticipating something I am going to say. For once, exceptionally for me, I have written down the argument in some sort of order. I was going to say, before he interrupted me, that we should not rule out such an option if the circumstances made it desirable, or perhaps made it the only acceptable option. That could be because the timing was contrived, in relation to the proposed referendum by the Scottish Parliament, or because we would not succeed because we could not get agreement in relation to a Section 30 order. That is not the preferred option; it is the fall-back position. As I said earlier, the good thing about a referendum organised by the United Kingdom Government would be that it would not only be decisive but it would be legal and would not be open to challenge.

I now come to the other option, which is the proposal of a Section 30 order. I think that is a good arrangement, a clever arrangement and an arrangement that will enable the Scottish Government to legislate for a legal referendum. That would not be likely to be challenged, but it would have to be on an agreed basis. That is why the question raised in our earlier debate about whether the order would be amendable is important. I think the Minister said that, in debating the order, he would consider whether some opportunity might be taken for amendments to be considered. I think that my noble friend Lord Sewel suggested that we might have a debate on a draft order. We may be crossing bridges before we get to them, but that is a good suggestion that would enable us to table amendments.

In this context, the Secretary of State’s letter of 20 March to my right honourable friend the Shadow Secretary of State, Margaret Curran, confirms, as did the Minister earlier, that the consultation indicated clear support throughout Scotland for this proposal, including from constitutional experts—the Minister described them earlier—and knowledgeable organisations such as the Law Society of Scotland, the Royal Society of Edinburgh and the British Academy. The Scottish Government have now accepted this, but a Section 30 order still has to be agreed with Scottish Ministers. That is where the difficulty might arise and where the negotiations will be important, where, in the words of the noble Lord, Lord Kerr, we will need to have had our porridge oats, or Scott’s Porage Oats. The Minister is negotiating, so that they take a firm line.

[Lord Reid of Cardowan]

As regards what might and might not be the ultimate outcome of such discussions, let us be absolutely clear on one thing. If it is a question of Scotland remaining inside the United Kingdom or leaving it, the Scottish people have the right to decide such a question. However, a wider question about the changed nature of devolution within the union cannot be a question just for the Scottish people or for the Scottish Parliament; it must be a question either for the two Parliaments, or for the people of the United Kingdom. Will he make that clear?

[Lord Foulkes of Cumnock]

I completely agree with my noble friend. I think that needs to be made clear to Ministers. I was going to turn to the issue of one question or two questions in a moment. We need to set targets for our Ministers when they are negotiating and discussing with the Scottish Parliament. In Amendment 89, the noble Earl, Lord Caithness, talks about the referendum being advisory or binding. There has been much discussion about whether any referendums have been advisory or binding. I think some have been advisory but have been accepted as binding. One target that we need to set the Minister is to decide that both Parliaments should agree in advance to accept the result of the referendum and follow it through with the necessary legislation as the will of the Scottish people.

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Once we decide, as I hope we will, to remain part of the United Kingdom—this relates to a point that was raised earlier—we need to consider how much devolution there should be and whether the status quo is enough. By then, the status quo will be this Bill.

[Lord Reid of Cardowan]

I entirely support the thrust of what my noble friend is saying, but it is important to recognise that any change in the relationship inside the United Kingdom must be put before the people of England, Wales and Northern Ireland as well as Scotland, not just because it is a different concept, but because it directly and materially affects them. The Scottish people have the right, if they so wish, to leave the United Kingdom, but if there is a desire for a relationship which diminishes, for instance, the role of England, Wales and Northern Ireland in relation to Scotland within the United Kingdom, that is an entirely different matter in practice as well as in concept.

[Lord Foulkes of Cumnock]

I am not sure that I fully agree with my noble friend on that. The referendums in 1979 and 1997 were both on the basis of the Scottish people deciding.

[Lord Reid of Cardowan]

I was careful to say earlier that anything other than leaving or staying in the union must be agreed either by both Parliaments or by the people of the whole United Kingdom. The two instances which my noble friend mentioned were, of course, agreed by the United Kingdom Parliament before they went to a referendum.

[Lord Foulkes of Cumnock]

I had not appreciated the qualification of being accepted by both Parliaments. If they are accepted by both Parliaments, that will fulfil my requirements and belief.

I have an amendment which suggests a further referendum on devolution—whether we should have the status quo, devo-plus, devo-max or a multi-option referendum. I am not in favour of that now and I shall not press that because that was going to be 35 days after independence. I confess that this amendment has not received universal support; in fact, it has not received any support at all, which is probably why I am not going to press it.

A stronger reason is that we heard a very powerful argument from both Front Benches that the 1997 referendum’s second question gives power to Parliament to decide further devolution. If both Parliaments, as my noble friend Lord Reid has agreed, decide on further devolution, I do not think a referendum is necessary.

Finally, there is the question of further devolution which the noble Lord, Lord Kerr, raised in his interesting intervention about porridge oats and punctuation. I agree—and now it seems the Prime Minister agrees—that further devolution needs to be carefully considered. We have got that in the Statement which the Secretary of State made today. It should be carefully considered; as a number of people have said, the devolution we have at the moment—which is the devolution of the Calman commission, the further extension—has been agreed on an all-party basis, and on the basis of consensus and consultation. That should be the basis of any further extension of devolution.

Both my own party, the Labour Party, and the Liberal Democrats, the Minister’s party, have commissions looking at this. In our debates on Thursday, we had an indication that already there is a degree of a mandate in relation to further fiscal devolution.

There are other issues in relation to the referendum, such as the role of the Electoral Commission, which I strongly support as being responsible for the conduct of the referendum. Another is the franchise, because while the Scottish Government propose to extend it to 16 and 17 year-olds, I believe there should be no unilateral reduction in the voting age just for one referendum. There are a number of other detailed matters which we will come to in the later amendments.

We now have this agreement on the legislative consent Motion. We have substantial agreement that greater tax powers are acceptable, and that borrowing consent, which we are giving to the Scottish Parliament, is welcome, and that specific areas are now being devolved. Let us not make any mistake about it: this implementation of the Calman recommendations is a very substantial increase in the devolved powers of the Scottish Parliament. We should not be hiding that under a bushel. We should be proclaiming it from the rooftops. Many of the advances have come from pressure from Labour MPs and Labour Peers. It is something I am now proud to support fully. I beg to move.

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[Lord Wallace of Tankerness]

I will make this clear. If agreement could not be reached on a Section 30 order, and if we ensured that the matter was kept out of the courts—which I hope would be the preference of most if not all of us—we would need to consider what other options were open to us to provide a legal, fair and decisive referendum. However, just as we were taken many times down the road of, “What if we cannot get a legislative consent Motion?”, which we have now seen is possible, we should make it clear that we are confident that we can reach agreement.

We reached agreement on the Scotland Bill when some said that it would be impossible. We reached agreement that Section 30 was the preferred route of both Governments to deliver a legal referendum. When I made my Statement on 10 January, I could not have said that that would be the case. The Scottish Government publicly stated that they share our view that the Electoral Commission should review the question. In their consultation paper, they state that their preference is for a single, direct question. Therefore, I am confident that we can continue to reach agreement on all these matters. The focus of our efforts must be on doing that rather than on speculating hypothetically. Just as we achieved agreement on the Scotland Bill, I believe that further agreement will be possible.

[Lord Reid of Cardowan]

Perhaps I may clarify something in view of our earlier discussion. Apart from the process of Section 30, the substance will count as well. Will the noble and learned Lord be clear with the House that nothing in the Section 30 order arising from any discussions could validate changes in relationships inside the United Kingdom that affect the people of Scotland, and also those of England, Wales and Northern Ireland, unless they are consulted either through their Parliament or Assembly or in a UK-wide referendum? This is an important point and if the noble and learned Lord can clarify it, I will be very happy.

[Lord Wallace of Tankerness]

I entirely agree with the noble Lord that the point is important. He made an important distinction between a referendum on whether Scotland should remain part of the United Kingdom, and one on whether Scotland should remain part of the United Kingdom but under a different devolution settlement. He was right that it would have implications for other parts of the United Kingdom. In 1997 the Government of whom he was a member came to power with a substantial mandate to introduce devolution, not only for Scotland but for Wales and Northern Ireland. Parliament respected that mandate and passed the legislation. What we are doing in the Bill, although it brings changes, proceeds from the manifestos of three parties.

The noble Lord made that distinction, and it is the Government’s view that there should be a single question on independence and that any other question would be of a different character and therefore would not sit well if it came in the double-question referendum that is sometimes suggested. The point that I was making was that the Scottish Government, in their consultation document, stated that their preference was for a question on independence. We should not lose sight of that, as sometimes it is easy to do.

We believe that a referendum on independence should address the single most significant issue that people in Scotland will face for many generations. That is why in the consultation paper we proposed that there should be a single question on independence.

[Lord Reid of Cardowan]

I am trying to be helpful to the noble and learned Lord. I urge him not to place too much emphasis on the fact that the Scottish National Party, which has independence as its core belief, expressed the view that it just wants a discussion and a vote on independence. If it had any other ideas about achieving a different strength or form of devolution, it certainly would not say this. Instead, it would point to an amorphous grouping in Scotland that supposedly demanded it, and would concede it reluctantly—because of course it wants nothing less than independence. The politics and the substance of this are as important as the process. Would it be legal to proceed with an alteration in the relationships of countries inside the United Kingdom without the endorsement of the United Kingdom Parliament or the people of those countries?

[Lord Wallace of Tankerness]

My Lords, I was asked on one or two occasions whether it would be legal to have a referendum on so-called devo-max without authority being conferred by this Parliament, either by a Section 30 order or by legislation on the Scottish Parliament. I was very clear that that, too, would change the relationship between Scotland and England and therefore it would be outwith the competence of the Scottish Parliament. I hope that that reassures the noble Lord.

As the noble Lord, Lord Reid, indicated, there are some who support approaches short of separation, such as devo-max or devo-plus. We must be clear that there has been no single, agreed definition of any of these terms. It is the Government’s firm view that we should not intertwine questions about the future balance of devolution in the United Kingdom with the question of Scotland’s place in the union.

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[Lord Reid of Cardowan]

I did not say that there had to be a referendum but, if there was a discussion about a change in Scotland’s place inside the United Kingdom, either that had to be done by agreement between the Parliaments or by a referendum that went wider. In the case of the previous referendums, there was agreement within the UK Parliament and then the referendums were held. The situation has now changed because there is a Parliament in Scotland and Assemblies in Wales and Northern Ireland. One presupposes that a decision will be taken on being inside or outside the union and the result of that decision meaning that Scotland should stay inside the union. I have no principled objections to entering into discussions about changing the nature of the relationship, but that has to be decided either by the peoples of the UK or by their representatives in the Parliaments. That is probably the only legal way to do it, and it is the only fair way. The first question, on whether Scotland wishes to leave or stay, is one for the Scottish people on their own, but the next question is one either for the peoples of the United Kingdom or the various representative bodies of those peoples.

[The Earl of Mar and Kellie]

My Lords, I am most grateful for that advice. Does the noble Lord, Lord Reid, believe that Jersey, Guernsey and the Isle of Man have devo-max?

[Lord Reid of Cardowan]

I would be able to understand that if I knew what devo-max is. I am presupposing that if there is a subsequent discussion on the decision to stay in the United Kingdom, some of it will be on what the vote is actually about. I hate to add pigs and pokes to porridge—enough euphemisms have been used—but one of the problems with devo-max is that, since it affects the relationship between the peoples of the United Kingdom, it would have to go to the peoples of the United Kingdom or their elected representatives. Also, at this stage no one knows what devo-max, devo-plus or any of these topics other than staying in the UK or leaving the UK actually constitutes. How on earth that is put to a referendum is beyond me, and therefore it reinforces the fact that there should be a clear, fair and legal decision on one issue, after which there may or may not be discussions between the representatives of the various peoples about changing that relationship. At that stage, presumably, devo-max may represent what the islands the noble Earl referred to already have or it might refer to something entirely different. Part of the problem is that at the moment we have no idea of what it refers to.

[Lord Forsyth of Drumlean]

My Lords, the difference is that Guernsey, Jersey and the Isle of Man do not send Members of Parliament to the House of Commons.

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[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.

[Lord Browne of Ladyton]

My Lords, I hope that noble Lords will forgive me if, in the interests of attempting to be brief—I have tried this before and it has not worked—I do not make reference to their contributions to the debate in any great detail. I shall also resist the temptation to go down many of the hypothetical routes or cul-de-sacs that have opened up in the course of the debate. I will try to concentrate on the nub of the issue.

I do that principally because, as the noble Lord, Lord Forsyth, indicated in his opening remarks, there is now a great degree of unanimity across the House about where we are. It may have taken us much longer than it should to get here, and that may be because, as the noble Lord, Lord Lang, pointed out, for a time it was not clear what lead the Government were to give on these issues. That is now much clearer. It may also be that we had, to a degree, a hangover from the past in the sense of the Scotland Bill, which I think we were committed to seeing through. Managing all these things together was challenging and difficult. I do not envy the noble and learned Lord and his colleagues in the Scotland Office having to work their way through this. I congratulate them on getting us to where we are to date. There are still challenges ahead and some of those have been identified in this debate. Given that there is a significant degree of unity and unanimity across the Committee on how we should approach this and the challenges that face the Government, it does not seem very fruitful to pick through all the possibilities. Apart from anything else, I know that that would just encourage Members of the Committee to have other ideas. They might want to make interventions and develop other lines.

I listened carefully to the Minister’s contributions this afternoon. I carefully read the Written Statement which his right honourable friend the Secretary of State for Scotland laid today and which was referred to in this Committee. From the degree to which the consultation has been reported either by the noble and learned Lord or in the Ministerial Statement, or from other pieces of information that are now allowed, we seem to be able to come to some conclusions about where the Government ought to be, and we can encourage them to continue on this path in their ongoing discussions with the Scottish Government.

It appears that the Government have comprehensively won the argument about legality. I do not think there is any question about that. I was privileged to be present when the noble and learned Lord spoke at length on this issue at Glasgow University. He was persuasive then, and the consultation document is persuasive. Since then, the Scottish Government have tried to undermine that advice, but unsuccessfully—so much so that the Deputy First Minister, Nicola Sturgeon, went to the same location, ostensibly to deliver a competing lecture on the issue, and ended up avoiding the question altogether. I understand that during her speech on independence and its virtues, she referred to one text-book supporting the view that she and her fellow Ministers held about legality, and that she was intervened upon or questioned by an undergraduate who pointed out to her that his instructions, when he appeared as a student at the university, were that you should never be in a position where you have to quote a text-book to support a legal proposition as that was just bad law, and she was flummoxed by it. If she was beaten by an undergraduate at Glasgow University, perhaps she should give up trying to make the argument.

The Government appear to have won comprehensively the argument on legality, and they also appear to have done so on the argument that we have to have this referendum as soon as practically possible. That is now being supported by growing evidence from those in business and other walks of economic life in Scotland. They suggest that evidence is now emerging that the uncertainty about Scotland’s future is starting to damage investment in Scotland, and consequently jobs and people’s incomes.

The Government appear to have comprehensively won the argument about the question. I do not think there is any doubt that everybody is of the view that it is best to have one clear question—so much so that the Scottish Government were forced to concede that point in their own consultation document, at least as a headline, although they did exactly what my noble friend Lord Reid of Cardowan suggests. They created a consultation with an amorphous group of people in Scotland, to whom they said: “If you persuade us that we need to go further and have another question, we will reluctantly concede to that but our position is that there should be one question”. I will come back to the issue of the question. I am not in a position to judge between the competing questions that have been proposed in our debate this evening, but there is a mechanism for working out the appropriate, fair question. We should at least begin that process now, so that when proposals are made to the Electoral Commission and to others who have to take responsibility for adjudicating to some degree on questions, they will be in a position to do that.

The Government appear to have comprehensively won the argument that the referendum ought to be run if not by the Electoral Commission then at least according to the rules that it sets and for it to be accountable to the Electoral Commission. I would prefer it to be run by the Electoral Commission. If I have not covered all the bases relating to the issues of contention, then somebody should point that out to me, but I think that is it. It appears that the Government laid out their stall, found support across Scotland and won the argument comprehensively, and now are able to say, “Not only do we know that we have won the argument but here is the evidence in the response to the consultation showing we have won it”. That puts the Government in a strong position, but in negotiating terms it puts them in a difficult position because it does not leave them very much room for manoeuvre, but they should not have very much of that on these issues.

I am inclining to the position that I have always been in about legislative consent Motions regarding the Bill. It is that the Scottish Government, inevitably and for political reasons, will have to come to that position too. As they have gone out and tried to sustain arguments in other areas, they have found that increasingly difficult, and their credibility is being undermined. I suspect that in the negotiations, which I hope will not take too long, the Scottish Government will be brought to that position.