Energy Bill [HL]

Lord Reid of Cardowan Excerpts

Wednesday 21st October 2015 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, this has been a very wide-ranging debate, taking in issues which are beyond the scope of the Bill. Nevertheless, they are important issues. I hope that I can do justice to the quality of the debate and respond to the points made. I shall come back to the noble Baroness, Lady Worthington, at the end because her comments perhaps symbolise the crux of the difference. In no particular order, except that it is present in my mind, first, I say to the noble Lord, Lord Steel, that I will take up the point about water and write to him on that specifically. As he indicated, it is not within the Bill but I am very happy to look at that and respond to him by letter.

I will probably stand corrected on this but I do not think that solar comes into this legislation either. If it does, I will regret that comment. It could in passing but this Bill basically is concerned about oil and gas, and the onshore wind position. I say to my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Hardie, that I will write to them on their specific point on Skye. I do not know the particular position, so, without commitment, if I can write to them ahead of Third Reading I will certainly do so.

The debate has exhibited a very clear difference of position in relation to onshore wind. I shall come to the Salisbury convention later. I remind noble Lords that it is the responsibility of the Government and the department to do three important things. We have to ensure that we have a supply of electricity that is affordable; that we have a supply of energy that is secure; and that we decarbonise. There is a danger that today this debate has focused on just one of those elements, almost to the exclusion of the other two. They are all important and attention is required to deal with those three, as I am sure noble Lords will appreciate. I will come back to the steel issue later.

The noble Lord, Lord Foulkes, suggested that we cast aside suggestions from the noble Lord, Lord Oxburgh, who is not in his place. That has certainly been far from the case. As regards the part of the legislation in which he was taking a particular interest and giving his experience on oil and gas, we have taken up a lot of his suggestions, as noble Lords will know. I have also ensured that he will head a committee, or perhaps an advisory group, which will report to the Secretary of State on CCS policy going forward. I must correct that point as it is not true.

Clearly, there is a difference of view in this debate. Perhaps I may come to the Salisbury convention. The noble Lord, Lord O’Neill, suggested that we were casting aside planning law. We are not. The grace period makes it very clear that if you have planning permission plus grid connection plus ownership rights, you qualify for the grace period. Therefore, we are far from doing that.

I come to the political point and the points made by the noble Baroness, Lady Worthington, who comes with particular knowledge and commitment. I understand all that. She said at one stage that this is political. It is; I plead guilty to that. It is political in the sense that we believe that this is very clear in the manifesto and that it is protected by the Salisbury convention. To find a bit of wriggle room to oppose this while saying that you are upholding the Salisbury convention is not the way forward.

I also regret suggestions from the Liberal Democrats that they do not regard the Salisbury convention as important at all. They have gone a stage further. That is not a desirable place for this House to be in. As I said, I have been here a relatively short period of time, but I value the institutions of this House. I would say the same if a Conservative Opposition were opposing a different political party in government, which will happen at one stage. If we really wish to maintain the traditions of this House and the important role that we fulfil, we have to move very carefully in the territory that we are in. We have a very clear manifesto commitment. People know and understand that. It should be upheld.

[Lord Reid of Cardowan (Lab)]

On the question of the Salisbury convention, I confess that I have not included recently the Conservative manifesto in my bedtime reading, but what does the Minister say to the point of substance raised by my noble friend Lord Foulkes? The commitment in the manifesto was to avoid or to reject any new subsidies, whereas we are talking about getting rid of existing subsidies. The noble and learned Lord who spoke about the legal issues involved said that these were legal niceties. They are not; it is the English language. Will the Minister tell us how it is that “new” in English has come to include “pre-existing”? If he cannot tell us that, then it is not a breach of the Salisbury convention because the promise was to end new subsidies, not to get rid of existing subsidies that had a preordained timeline.

[Lord Bourne of Aberystwyth]

The noble Lord is right on the wording—actually, it is “new public subsidy”, but he is stressing “new”. The point is that those already in receipt of subsidy will continue to have the subsidy. This is for people who have not yet got or applied for the subsidy. It is certainly new to them in a new Parliament. It is absolutely clear that that is within the Salisbury convention. Clearly we will disagree on this. I argue that we are in dangerous territory and that the Salisbury convention should apply.

I omitted to do so earlier because I wanted to finish on the Salisbury convention, but I will say something on affordability and steel. The noble Baroness made some relevant points on that. She said that electricity was a small part of their costs; it is not for all steel companies. If it is a blast furnace it is 3% of the costs; if it is an arc furnace, as it is for Celsa in Cardiff South, a Labour-held constituency, it is 12% of the cost. That is not insignificant. That point was made forcefully at the steel summit by many Labour MPs, as well as by other people. We have to take that on board. It is a complex issue. It is not just about electricity costs, but they certainly are a valid consideration from some steel companies.

With that, there clearly is a disagreement but, as I said, this is dangerous territory for the House. In my belief and the Government’s belief, this is firmly protected by the Salisbury convention and I urge noble Lords to reject the amendment.

Justice and Security Bill [HL]

Lord Reid of Cardowan Excerpts

Monday 23rd July 2012 Lords Chamber

[Baroness Berridge]

My Lords, I, too, am grateful for the clarification from the Minister in relation to the exclusion of inquests for this particular reason: I understand that, outside of Northern Ireland, there are currently only two inquests outstanding in England and Wales—the case of Azelle Rodney and that of Mark Duggan from last summer. I am certain that, in the first case, the proposal is to use the Tribunals and Inquiries Act to conduct that inquest, and I believe that that is also to be the suggestion in the Mark Duggan case. The reasoning behind that is, I believe, that intercept evidence is to be considered.

One can see that it is a small step in the argument to say, “We are using the Tribunals and Inquiries Act and intercept evidence so why not, because we can under this Bill as it stands, use intercept evidence in a closed material procedure?”. It is a small step of reasoning to move into closed material procedures in inquests.

In relation to the issue of procedure and having legislation that goes quickly through the House, one can understand the concerns that exist at the moment in relation to the Mark Duggan situation. In those instances, Parliament should reconsider the matter. We would need to consider all the impacts on public confidence and the outworkings of using a secret procedure in such a high-profile case and an inquest of that significance.

[Lord Reid of Cardowan]

My Lords, I first apologise that I missed the first few speeches because I was unavoidably detained, but I have listened to quite a few of the speeches over the period and I have tried to read as much as possible of these debates when I have missed them. I have been impressed by the commentary on legal matters, matters of process and by the justice side of what the noble Lord, Lord Pannick, referred to earlier—the balance of justice and security—but I am afraid that I have searched in vain for anyone outside of the Front Bench doing anything in detail to analyse the security context. In other words, we cannot possibly judge whether these are appropriate measures in general unless we judge them in the circumstances of today. As the noble Lord just said, the situation with a coalition Government means that we are living in different times from previously, but the situation of living with the threat that we have today means that we are also living in different times from previously.

I have read with great interest the legal commentaries. I have found them outstanding in their quality and certainly outstanding in their quantity. I always defer to noble Lords with expertise in the human rights area and in the legal area on matters of law and advice on human rights, but I hope that noble Lords will forgive me if I do not defer on deciding on matters of security. I would have been horrified when I was Home Secretary had it been suggested to me that the overall strategic position on security and defence, for which the noble Lord, Lord King, and I had responsibility, was better served by having a lawyer decide rather than an accountable politician. Therefore, although this may be a minority speech, it is one worth bearing in mind for those who are speaking to these amendments today, not least on closed material procedures but not exclusively on them.

My starting point is to ask why these proposals are coming forward in the form that they are today. I am not a lawyer. I am a historian and therefore the two important questions to me are “Why is something happening?” and “Why is it happening when it is happening?”. Of course, there can be motivations ascribed. I have heard it said that this is merely mission creep. I have heard that it is the malevolence of the intelligence services: it is their guilt and wish to cover up future proceedings. But there may be a simpler answer: that circumstances have changed, and in particular that the nature of the threat has changed.

I say that on an evening when, unpopular as it may be to certain elements of the press, the chemical weapons and weapons of mass destruction debate seems to have been put back on our front pages. It is now widely recognised that they are sitting just across from Iraq. People are naturally very worried about what would happen if they fell into the hands of some of the terrorist groups at present operating in Syria. That is an example of the nature of the modern threat.

Noble Lords will know that there are two essential elements of threat: intention and capability. After 9/11, there can be no doubt that there are people in the world who have an unconstrained intent to commit unconstrained mass murder, including in this country. Whereas 60 years ago there were states with that intention, they lacked the capability. The scientific and technological basis on which they might operate their intent was limited to CO₂ from the fumes of cars or vans or to Zyklon B canisters. That is not the case today. Chemical, biological and radiological weapons are also capable of extending unconstrained massacre of human beings. That is what has been in the minds of those charged with the security of the country since 9/11—unconstrained intent and unconstrained capability.

The second feature of that, which brings me to the amendments today and the Bill before us, is that there is now a seamless threat. This is not a threat in one country. It is not a threat that appears only in two countries. I did not deal with one threat that was in fewer than two or three countries, and in one it involved people in 29 different countries. If you have a seamless threat, you have to have a seamless response.

We are no longer, if we ever were, an island fortress, not just with cyber but with some of the potential threats that face the citizens of this country, whom the Front Bench are charged with protecting. If we are to have a seamless response, above all it requires absolute trust between those agencies and those Governments who are working together. That trust and dependence are now far greater than 30 or 40 years ago. Therefore, the breach of that trust, inadvertently or otherwise, through institutions or processes, legal or other operations, becomes a huge hole in the creation of a holistic security policy.

I am not suggesting today that any of the ideas that have been put forward or the amendments are necessarily wrong, and I am certainly not suggesting that they are badly motivated. They are not malevolent; they spring from a natural inclination to oversee government, particularly when government exercise powers that are abnormal. Sometimes, they will be based on first principles and sometimes you will ask where the logic to this is, as the noble Lord, Lord Butler, asked earlier. To that particular question I will tell him that there is no logic. It is a political decision taken for political reasons. It is the result of political discussions. It has been decided to concede in order to gain what is left. I do not expect the Minister to say that, but it is obvious to all of us.

At the end of the day, political decisions have to be made. All I want to do today is put in the minds of everyone who speaks, from every background, the experience in making decisions such as this of those of us who have had the privilege—and burden, in some ways—of being charged with the security of the country. It is not because we are Cromwellian in character; it is not because we have a blind spot for mission creep; it is not because Ministers on the Front Bench will not question the agencies—it is quite proper that they do so. It is because the first premise on which they should base the balance of justice and security is an understanding of the security element, as well as the details of the justice element and the justice process.

[Lord Soley]

My Lords, I think my noble friend misunderstands a key point of what we are saying. I agree almost absolutely with everything that he has said—and, indeed, we have discussed this on many occasions before. However, I want to bring the purpose here to his attention. The government document from the Ministry of Justice said that these powers are wanted so that changes can be made more quickly than by amending primary legislation. I know that Parliament and parliamentary control is important to him. However, if he had been Home Secretary, what would he have decided if I had come to him and said, “Look, you need to change this legislation. Ask for an affirmative order, which will take a month or two; try to amend it, which will take a couple of months; or have a quick Bill going through both Houses”? If he would have decided the latter, he is on my side.

[Lord Reid of Cardowan]

The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.

The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.

All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles. These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.

[Lord Pannick]

Does the noble Lord accept that most of the amendments debated so far have been resisted by the Government not on the basis that they would undermine national security but rather, as I understand it, because they are unnecessary safeguards?

[Lord Reid of Cardowan]

The Government must speak for themselves. I am not a member of the coalition—though, with every passing day, it looks as though they may want others to join in place of those who leave. The Government must phrase their own reaction to the noble Lord’s position. I would much rather that we were transparent, out at the front and talked about it. I have just noticed other people here who are much better versed in matters of intelligence than I am. However, in listening to the speeches in here and reading those that I did not hear, I noticed a dearth, if not a complete absence, of one element of the balance we are trying to find—that is, a description of the security circumstances and an explanation of why these proposals might be brought forward at this time. I hope that the Government will perhaps do a little more of that, because we could all learn with a little education.

[Lord Lester of Herne Hill]

Does the noble Lord accept that there is no monopoly of knowledge about national security? I served a Home Secretary long before the noble Lord and we fashioned the first anti-terrorist legislation in 1974. Would he accept that one of the worst things we can do is to fashion legislation in this country that gives colour to the idea that British justice is second-rate or discriminatory in balancing national security and liberty?

[Lord Reid of Cardowan]

On the noble Lord’s first point, I not only accept that but I recognised in my opening remarks that people here other than me had discharged that responsibility. I agree entirely with his second point. At heart, the struggle—not the only struggle but the major one—is a battle of values. It is an ideological battle. Certainly, it displays itself in acts of terrorism, bombs or death but at heart it is a clash of values. Therefore, everything we do has to be seen in that context. There is a propaganda weapon for those who oppose the very essence of our values if we conduct our affairs so that there is an obvious contradiction between the values we espouse and what we do. However, that has to sit alongside the fact that, on some occasions, these values have to be defended as a whole. That has meant that we have had to take abnormal measures on occasions. The key thing is accepting that they are abnormal and extraordinary, rather than trying to pretend that somehow they are just run of the mill or justifying them on the existing system. The second thing is to make the argument about why they are necessary. If one fails to make this argument, one will end up in the position indicated by the noble Lord, where what one does appears to contradict what one says.

[Lord Thomas of Gresford]

The noble Lord has not been able to be with us in our deliberations. However, does he appreciate that, thus far in the Bill, the Government have not suggested that there is any risk to security at all? Does he appreciate that the purpose of the provisions discussed until now concerns the fairness of trials? Security arises in what we are about to debate very shortly. Up to this point, security has not featured because it is not an issue on the provisions we have discussed.

[Lord Reid of Cardowan]

I thank the noble Lord for that remark. Again, I am not on the Front Bench so I am not making their arguments for them. I am making my argument. As far as the security situation is concerned, whatever is said by the Front Bench, for more than half of the past 10 years we have been either at “severe”—the second highest level—or “critical”, which is not only a likely but an imminent threat of terrorist attack. This demonstrates the fact that we are discussing not a normal security situation but a very difficult one—not least as we approach the Olympics.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have tabled these amendments and who have taken part in this debate. The noble Lord, Lord Reid of Cardowan, has given a context to these deliberations. I think that he would agree with us—and I mention here the intervention of my noble friend Lord Lester—that justice or security is not a binary choice. This is a justice and security Bill, not a justice or security Bill. As we deliberate and go through these provisions, it is important that we seek to uphold the national security, which is a responsibility above all on the Executive, and also ensure that the values of justice—which is a cornerstone of what we believe in and what makes us as a nation—are upheld.

The comments of the noble Lord, Lord Reid, may also have some pertinence as we move to the next stage of the Bill, which deals with the Norwich Pharmacal jurisdiction. He pointed to the importance of trust and the consequences of breach of trust.

As an introductory comment, perhaps I may say to the noble Lord, Lord Pannick, that my noble friend and I will write to him about the point he raised about the last set of amendments. I do not think it would be appropriate, when dealing with these amendments, to rerun the arguments put forward for the previous group. However, before Report stage, we will write to noble Lords who took part in that debate.

Understandable concerns have been raised. In many Bills I have taken part in, quite proper discussion takes place about the use of secondary legislation, its appropriateness, the circumstances under which it should be used, and its actual nature. If Amendments 69A or 70 were to be accepted, as my noble friend Lord Hodgson has said, it would remove the order-making power entirely. The question posed by the amendments is this: why do we need the order-making power at all?

Perhaps I may set out why the Government arrived at the approach we have taken in the Bill with regard to the definition of “relevant civil proceedings”. In the Green Paper, the Government consulted on making closed material proceedings an option for any civil proceedings in which sensitive material was relevant. However, the firm steer from the consultation exercise was that the scope of the Bill should be narrowly focused. That was a point made by my noble friend Lord Marks and in the comments of my right honourable friend the Lord Chancellor. After careful consideration of the consultation responses, the Bill provides that closed material proceedings can be used only for hearings in the High Court, the Court of Appeal and the Court of Session. It is in these courts that the difficult cases have arisen, so the Government have defined relevant civil proceedings narrowly in the Bill.

If that is the case, why do we need an order-making power to extend the definition? As was indicated by the noble Lord, Lord Soley, when he quoted from the memorandum that was submitted to the Delegated Powers and Regulatory Reform Committee, the point is that the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings. Naturally, we may be asked if we have any particular case in mind. I reassure your Lordships that if there was an obvious example of a difficult area, we would be making the case for its inclusion in the definition of relevant civil proceedings today. But it is possible that difficulties may arise in areas wholly unexpected or unanticipated, and it would then be important that CMPs were available as a matter of some urgency. Noble Lords may be aware that Parliament has already legislated 14 times to provide CMPs in different contexts, and therefore it is not inconceivable that some new context that we cannot foresee today will arise in the future in which they will be necessary.

Perhaps I may say in response to the noble Baroness, Lady Turner of Camden, who asked about employment tribunals, that legislation is already in place with regard to closed material proceedings in such tribunals. Indeed, it was the subject matter of the deliberations of the Supreme Court in the case of Tariq, the judgment of which was reported either last year or earlier this year. The current review of employment tribunals by the Department for Business, Innovation and Skills does not have anything to do with closed material proceedings.

The crucial thing about the power is that it is subject to the affirmative procedure, which means that the exercise of the power would have to be debated and approved in both Houses before being made. Before gaining that approval, the case for change would have to be made to each House on the basis of evidence that is sufficient to convince both Houses. I cannot for a moment imagine that it would be given a clear ride. That is a safeguard and it means that rather than standing here and trying to persuade your Lordships that a broader definition of relevant civil proceedings is needed for the sake of flexibility, the Government will have to put their case at the time of seeking approval of an order.

As has been said, the order-making power has been the subject of scrutiny by both the Delegated Powers and Regulatory Reform Committee, of which the noble Lord, Lord Soley, and my noble friend Lord Marks are members, and the Constitution Committee. The Government appreciate the careful consideration that both committees have given the power. I note that neither committee recommended the removal of the power, but it is fair to note, and as was pointed out by the noble Lord, Lord Soley, and quoted by the noble Lord, Lord Butler, that the Delegated Powers and Regulatory Reform Committee had reservations about the scope of the power. However, it concluded tentatively but nevertheless clearly that it would not recommend that the delegation of powers is inappropriate.

No doubt members of the committee will know better, and I will come on to address the issue of coroners’ courts shortly, but paragraph 6 of its report indicated that one of the concerns was extending the use of this power to those courts.

Scotland: Constitutional Future

Lord Reid of Cardowan Excerpts

Monday 26th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, a Section 30 order requires the consent of both Houses of this Parliament and of the Scottish Parliament. As I said last week, if agreement cannot be reached on a Section 30 order and if we are to try to ensure that this matter is kept out of the courts, which would be very helpful, the Government will need to consider what other options are open to them in order to provide a legal, fair and decisive referendum. Many people said that there would be no chance of getting a legislative consent Motion in respect of the Scotland Bill, but that is now within our grasp and is going to happen. I think we should focus our efforts on making sure, as I believe we can, that we get a Section 30 order for a fair, legal and decisive referendum.

[Lord Reid of Cardowan]

My Lords, will the Minister take this opportunity to repeat to the House the assurance he gave in Committee that while the question of whether Scotland wishes to leave the United Kingdom is properly a matter for the Scottish people, any other question that would affect the relationship between the people of the United Kingdom—that is, extended devolution—cannot just be a decision for the Scottish people? It must also be a decision for which there is consultation with either the rest of the people of the United Kingdom or the United Kingdom Parliament.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Reid, makes an important distinction between a question about a referendum on Scotland leaving the United Kingdom and one that would necessarily involve other parts of the United Kingdom. That is why the Government believe it is inappropriate for any referendum to have two questions. He is right to say that if there is to be further devolution, there must be some means of engaging other parts of the United Kingdom. The main provisions of the Scotland Bill, which we are currently debating, were included in the manifestos of the three parties at the last general election.

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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Scotland Bill

Lord Reid of Cardowan Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord McConnell of Glenscorrodale]

I was just coming to the issue of the increase in the budget. In the mean time, the budget has increased from about £10 billion when I was the first Finance Minister to about £30 billion. A broad consensus has developed in Scotland over that time that there is not enough responsibility for spending in the Scottish Parliament and the Scottish Government and that there is a need to change taxation powers—the way that the Scottish Parliament receives finance and that the Scottish Government raises finance—to ensure greater accountability of decision-making.

I was not initially convinced by the proposal in the Calman commission but I have become convinced that it could indeed be workable and improve the governance of Scotland. As the noble Lord, Lord Forsyth, has just said, it is wrong to argue that the Scottish Parliament, perhaps alone among legislative parliaments in the world, is not fit to set taxes. As long as a parliament is held accountable for its decisions, it should be free to set some taxes. That opportunity in the Scottish Parliament would lead to more responsible decision-making than has perhaps been exhibited at some times over the last 12 years.

This power is also fundamentally different from the imposition of the poll tax back in the late 1980s. The difference is that income tax is income related whereas the biggest problem with the poll tax was not its gearing—although that was an issue—but the fact that it was correctly perceived to be unrelated to income and provoked a reaction and civil unrest across the country.

We should test the proposal here. The noble Lord, Lord Forsyth, made some important points about the need to test the detail. In my view, the principle is right. The Scottish Finance Minister having to set a budget every year and make a decision to raise taxes would enhance accountability and responsibility in the devolved settlement. However, since the Calman proposals have come forward—

[Lord Reid of Cardowan]

I agree with almost everything that the noble Lord, Lord Forsyth, said—which must be a first. On this point, I am inclined to agree with my noble friend the former First Minister. The reason that the 3p was originally introduced, in about 1980, into our plans for devolution was precisely in order to meet the requirement that a parliament—or an assembly, as it was then called—should not be able to spend endlessly without any obligation to raise its own tax, in answer to the electorate. The reality is that in all of the prior period since the formation of the Scottish Parliament, and precisely because there has been an increasing budget, there was no obligation in practice for it to do that. We may be in a different position now and the question is simply whether we should have a parliament that is allowed to spend tens of billions of pounds but has no obligation whatever to raise any of it or to answer to the electorate for raising that tax.

[Lord McConnell of Glenscorrodale]

I thank the noble Lord, Lord Reid, for that point. It reinforces the argument I am making.

The context in which the Bill is now in front of Parliament has changed since the Scottish election result in May. I would argue that a referendum on Scottish independence is now almost certainly going to happen—I suspect in around late 2014. The next three or four years will be very uncertain for those who want to invest in Scotland as well as for the people of Scotland more generally. At the moment, one side has the absolute power to shape the terms on which that referendum will take place. Unfortunately, it is also true that only one side is even in the park playing in this match.

The Scottish football team had another disaster at the weekend. We have learned in Scotland regularly to take an approach after these games of, “We were robbed”. We are in grave danger here of having a referendum campaign in which, afterwards, potentially a majority of the Scottish population suddenly realise that something has happened and feel, “We were robbed”. It will not be good enough for the mainstream political parties in the UK and other organisations to adopt that “We were robbed” approach afterwards. To use a wider analogy than Scottish football, we cannot give the pacemaker so much of a lead that we end up having too much to do on the last lap in the referendum campaign that will take place between now and, I suspect, 2014.

I believe absolutely that the best future for Scotland is as part of a partnership of nations that is the United Kingdom—not some 1950s Britishness that is part of our honourable and respected past but a modern, 21st century arrangement that is modern, multicultural, multinational and has a different vision for the United Kingdom and for Scotland itself. Some decisions are right to be made at the United Kingdom level and some are right to be made in Scotland. There is a fundamental choice between that vision and that of independence for Scotland. That is a once-in-a-lifetime choice and, perhaps even at this stage in the century, a once-in-a-century choice. It should not be taken lightly.

Scots deserve a full debate on this, in which both cases are positively put and clearly explained and the result is a clear resolution of the debate once and for all in our lifetimes. Those who support the alternative vision to that of the nationalists are in grave danger of sleep-walking into an irreversible decision. It is incumbent on political leaders, the business community and the civic Scotland that supported devolution 15 years ago to rise to this challenge by coming together to put forward a positive vision—not a fear of the alternative—of where Scotland can be in the 21st century. If we do that, we can make a decisive decision about that future that leads to a more prosperous and successful Scotland with devolution inside the United Kingdom and not the dramatic implication that would come from a decision to go independent.

Fixed-term Parliaments Bill

Lord Reid of Cardowan Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, I agree entirely with those who have just spoken that it would be helpful to the House—indeed, I think it is a necessity—that some clear principles should be articulated as to when a referendum would be appropriate. I understand the case for referenda on major constitutional issues. After all, the constitution is the property of the people and not of us as parliamentarians. If significant aspects of it are to be changed, there is a strong case for saying that they should be changed only with the permission of the people. However, I invite the House to consider the proposition that every significant constitutional change that we have seen over the last several decades has diminished the centrality of Parliament in our constitution. Whether it has been accession to the European Union, devolution or the development of the practice of holding referenda, we can see in all these instances that the capacity of the Parliament of the United Kingdom to take the major decisions that the people of the United Kingdom elected it to take has diminished. So before we express enthusiasm for the proliferation of referenda—perhaps no noble Lord wants to see their proliferation, although we should note that the European Union Bill seems to offer the scope for at least 57 varieties of them—we should consider what this may mean for the centrality and the character of Parliament in our national life.

[Lord Reid of Cardowan]

My Lords, I thank my noble friend for giving us an opportunity to speculate on the nature and the circumstances that might make it imperative to hold a referendum. It is unreasonable to expect the Minister to respond in definitive terms, and I do not think that we would necessarily push for that tonight; but it is reasonable to expect two things. The first is that the Minister, who as noble Lords have said has been more than reasonable in his attempts to respond to and clarify some of these issues, should attempt to answer the point. Secondly, he should consider some of the criteria that might compel a referendum on subjects the nature of which we are now discussing. He might like to consider, for instance, that one of the elements that would compel a referendum would be on subjects that are closely related to those which have recently been the subject of a referendum, and when the course being proposed by the Government would, in effect, alter that decision of the people in some incidental fashion.

Hypothetically, the people could resoundingly decide to reaffirm first past the post as an electoral system. If there was then any suggestion of a move by either Chamber of Parliament to reject it, obviously that could not be done, especially in the wake of an overwhelming decision to reject the system of alternative vote. If any attempt was made by either Chamber of this House to change that decision, perhaps by putting it through Parliament itself, it would be an outrage. If it was good enough to do it by referendum in the first place, it is good enough to do it in the second place. It is no argument to say, “We did not like the result the first time around, and so we will change the system”. That is partly why the alternative vote was rejected. Therefore one of the criteria might be that there has been a recent vote on a subject.

A second criterion might be that something was a fundamental part of the British constitution, such as the voting system itself. It would appear from past experience that that requires a referendum. That might be the second criterion which a priori we would suggest would require the people to be consulted. A third criterion might be a fundamental change in the constitutional arrangements for the governance of the United Kingdom, such as the abolition of one of the two Houses of Parliament. As the noble Lord, Lord Cormack, said, we might speculate that we will have a proposal before us not for the reform of the House of Lords, but effectively to abolish it and replace it with a senate. I leave aside the substantial arguments as to whether this is taking place in the context of, whether intentionally or otherwise, the other House having been denigrated. I merely point out that abolishing a House of Parliament would be a major and fundamental constitutional change and therefore might be a subject for the Minister to consider as one of the criteria I have mentioned.

A fourth criterion would be the complete and fundamental diminution of the powers of one of the Houses of Parliament. I speculate again that if, for instance, we were to create a senate whose representatives were elected by, say, proportional representation, that would hugely diminish the powers, status and role of the other place. That is because the other House is only powerful relative to the second House of Parliament under the British constitution by virtue of the fact that the latter is constrained to scrutiny. If the second House were to add democratic legitimacy to its perceived wisdom and maturity, especially using a system that some people claim is more democratic than first past the post, that could not but diminish the powers of the House of Commons.

Finally, if each one of these criteria was an a priori reason for holding a referendum, we must conclude that any move to bring forward measures to change our constitution that included all the criteria—an electoral system that had already been put to the people, a proposal to abolish a House of Parliament and diminish the rights of the other House by the restoration of a new second House—would mean that they would be compelled to include in any legislative proposals an assurance that there would be referendum on them all. I shall give way to my noble friend.

[Lord Cormack]

I am most grateful to my noble friend. Would he not agree that the power of another place would be even further diminished if those elected to a second Chamber were on a 15 or 20-year term, were not eligible for re-election and were therefore not accountable to anybody?

[Lord Reid of Cardowan]

Well, of course, my noble friend is speculating. It is hard to believe that the other Chamber would bring forward proposals for the creation of a second House which would so hugely diminish its own powers by bringing in a new electoral system that would then be claimed in the second House to be more legitimate than that in the first; and for a period that was three times as long; for a House that was already widely recognised as being greater in its maturity and wisdom. That would be the greatest case ever of turkeys voting for Christmas.

Should such a proposal come forward, I think that many people in the House of Commons would be very reluctant to diminish their own position, particularly since they have just seen a campaign launched for changing the British constitution—this was the yes to AV campaign—on the basis that MPs were all lazy, cowardly laggards. I think that such a proposal would not be met with universal approval in the House of Commons. I say merely that, if by some mental aberration of that House, such proposals were brought forward and were to concern not only a subject for which one of the criteria had already been put to a referendum—that is, the voting system, which is elemental to the British constitution—but also the abolition of one of the Houses of Parliament and the diminution of the other, each of these individually would be reason for having a referendum. Taken together, there would be an absolutely compelling case for it. I am sure that the Minister in his straightforward fashion, and given that he is a man known for his neutral and objective position in all these matters, will be able to put this to his colleagues, up to and including the leader of his own party, bring it back and reassure us all on it.

[Lord Deben]

Is it not a common feature of the four examples that the noble Lord has suggested that a referendum can be argued for only when it changes the basis upon which those who would otherwise vote for it have been elected? I am personally opposed to referenda in all circumstances, but it could be argued that it is improper for people who are elected on one basis to make huge changes in their own interest and present that to the people. The four examples that he used have that commonality. Would it not be a good thing for Governments, oppositions and coalitions to think carefully before they bring before the Houses of Parliament such changes without a referendum built within them?

--- Later in debate ---

[Lord Reid of Cardowan]

I agree absolutely with the noble Lord. There is one condition and qualification which the Minister could bring forward as an objection. He could say, for instance, that it would be entirely unreasonable for us to ask the Government to give a commitment to a referendum on such a subject unless they knew the precise details of the referendum, of the question to be put and so on. That would be a cast-iron argument were it not for the fact that the Government have already rushed to the television studios to assure us that they would willingly accept a referendum on the Scottish question were it put, without knowing the wording, the timing or the conditions of it. So that objection would entirely fall.

I am trying to be helpful to the Minister tonight, not by laying down demands for a definition but by suggesting that there might be criteria which he would like to consider before he comes back to the House. Whether it is a White Paper that we have to expect or a grey paper—perhaps by tomorrow morning it will merely be an essay on the British constitution that is being proposed—and whatever the form of the coalition agreement’s operational eminences which exude from discussions in Cabinet, I hope that he will be able to come back and tell us that it is such an important subject that we will all get the chance to vote again, because we so enjoyed the last referendum.

[Lord Norton of Louth]

My Lords, the key point has been made, but not yet by me. I want to reinforce what the noble Lord, Lord Grocott, said. Many of the measures being brought before us are premised on the assumption that our political system is broken. Like the noble Lord, I do not accept that it is and there is empirical evidence for showing that the people do not accept it. I accept that there is a crisis of confidence, but it is a crisis of confidence not in institutions but in politicians. There is a danger of displacement taking place here, of saying, “Well, it is not us, it’s the system. We’ll change the system”. There are problems in that, so I accept the premise on which the noble Lord is proceeding.

My fear is that we may get ourselves into a situation where people do think that the system is broken if we keep messing about with it and making disparate changes without any clear rationale for them, rather than individual changes. If the Government start having a referendum on one issue which they feel for whatever reason there should be a referendum on, but then deny it on another issue which people think is important and there should be a referendum on, they will create problems in terms of how people view the system and how it is being operated.

I have always argued against referendums because I have an objection on principle to them; the Government’s problem is that they do not. When they start holding them, they need to have a clear rationale for those occasions when they are clearly appropriate and those when they are not. Otherwise, we create a problem of delegitimising issues, with people thinking, “Well, this is really important, but we’re not going to accept it unless it’s subject to a referendum. Why can the Government have a referendum on A, when we attach real importance to B and we’ve not been given a say on the issue?”. To cope with that, as the noble Lord, Lord Reid, indicated, you need a very clear framework which is transparent and explained to people, so that they know the basis on which the Government are proceeding. You cannot do it on an ad hoc basis. You need clearly to adumbrate the overarching framework or, if necessary, come up with those issues which clearly fall within the framework of necessitating a referendum.

The Constitution Committee of which I am member, as is the noble Lord, Lord Pannick, produced its report on referendums and tried to identify those areas so that we could at least get agreement on them. The Government need to think about what framework they are using for promoting referendums. They cannot do it on simply an ad hoc basis, saying that it is up to Parliament, because Government bring the Bill before Parliament. We need to know why they are doing that, and that they are doing it on the basis of principle rather than political desirability. The more politicians do the latter, the more we run the danger of people starting to worry about what the Government are doing and their trust being lost. It is essential that we maintain that trust. If the crisis of confidence is in politicians, it is up to us to get it right.

Parliamentary Voting System and Constituencies Bill

Lord Reid of Cardowan Excerpts

Monday 7th February 2011 Lords Chamber

[Lord Alderdice]

My Lords, I think it is only right for me to pay tribute to the noble Lord, Lord Rooker, who was regarded with much affection during his time as a Minister in Northern Ireland. However, that also leads me to my questions about his amendment. He was famed for his plain speaking and uncluttered thinking, but sometimes the simple response to a complex issue may not be the right one, and I think that that is the case with this amendment.

Two of the amendment’s components trouble me. The first is the notion that it should be a non-binding referendum; in other words, we say, “This is so important that we must hear what the people have to say. But if we do not like what they have to say because of the numbers who turn out to vote, the Government will then do something different from what the people have said”. I do not think that it is a very advisable to ask the people what they think but then for the Government to decide whether they will follow through on that. However, it goes further than that. The noble Lord, Lord Rooker, will be very familiar with the fact that the only elections in Northern Ireland which are not held on a proportionate basis of some kind—in fact, all the rest are held on the STV system—is the election to the House of Commons at Westminster. I could very easily see a situation where the turnout in Northern Ireland was much higher than in other parts of the United Kingdom—that is not unusual—and where there was overwhelming support for moving away from the first past the post system, as it is not used for any other elections and no one in Northern Ireland seriously proposes going back to it.

Of course they would rather have STV but that is not on the agenda at the moment. Northern Ireland could vote overwhelmingly for a move away from first past the post and the Government could say that the rest of the UK have not voted in such numbers—although the outcome is still clear—and have the freedom to ignore the situation or to espouse it. If this is what the people want, maybe we should move away from the first-past-the-post system in Northern Ireland—and perhaps in other parts of the UK—and argument could then begin to emerge that the Government had the freedom to bring forward different electoral systems for the one Parliament. That would not be a change because it is already the situation in our elections to the European Parliament. It would not help to bind things together in the United Kingdom if we had different forms of elections to the House of Commons.

I am seeking to show that what appears a simple, straightforward, elegant way of addressing a potential problem in fact opens up a series of other matters which have not been referred to in today’s debate. I give way to the noble Lord, Lord Reid, who is also a much distinguished servant of Northern Ireland.

[Lord Reid of Cardowan]

I thank the noble Lord for that. His argument would carry immense weight if not for the simple fact that the circumstances—historically, socially and constitutionally—in Northern Ireland are unique in the United Kingdom. Nowhere else has a referendum been held inside and outside the United Kingdom at the same time, as was the case with the Good Friday agreement; nowhere else is there a Chamber where automatically all of the parties must share a percentage; nowhere else are there constitutional arrangements which stand completely at odds with every other part of the United Kingdom, for very good reasons. Therefore, the arguments the noble Lord has made very eloquently fall on the simple point that Northern Ireland is already unique, and anything that added to that uniqueness would be marginal compared to the differences that already exist.

[Lord Alderdice]

I am grateful to the noble Lord for his intervention. However, I am sure he will not go back to Scotland to argue that Scotland is not unique in its history, culture and background.

The point is not the uniqueness of the situation in Northern Ireland but the importance of holding together a single system for election to the House of Commons so that various procedures do not enter into it which have the untoward effect of differentiating representation in the House of Commons. We need something which binds our United Kingdom together. That is why the simple and, on the face of it, not unreasonable proposition from the noble Lord opens up all kinds of other boxes. That is not his intention but it is a real possibility, and that is why I oppose the amendment.

Parliamentary Voting System and Constituencies Bill

Lord Reid of Cardowan Excerpts

Thursday 20th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

I have no reason to doubt that. These are examples of island communities which are linked to and can readily be combined with the mainland.

We took extreme geographical circumstances into account. If the preserved constituencies were linked and combined with part of the mainland, their surface area would almost inevitably be larger than that of the largest current constituency. In the course of our debates in Committee, concerns have been expressed by many noble Lords about the distances which people have to travel. I recall in one debate—I cannot remember which of the many—someone talking about the possibility of having to drive for two-and-a-half hours to get to a place. In Orkney and Shetland, it can require two-and-a-half hours even to get to one part of Orkney, let alone travel from Orkney to Shetland—you can travel from Orkney to Shetland by plane, but you then have to go very much further again.

[Lord Reid of Cardowan]

The Minister is giving us not a principle but a geographical description, and saying that those places are geographically different. But so is Argyll; so are many of the other examples given. So I have to ask the Minister again: what is the principle by which these places are being distinguished from the other examples being given? The distances are similar to those in Argyll; the size of Argyll is some 2,000 square miles.

[Lord Wallace of Tankerness]

I rather suspect that the noble Lord was not listening as attentively as he would normally do, because I said that those constituencies had been excepted because they were dispersed island groups which could not readily be combined with the mainland. By definition, Argyll and Bute is already a set of islands which has been readily combined with the mainland and which over many decades has been represented by very distinguished, hard working Members of Parliament—I think back to Michael Noble and my late noble friend Lady Michie of Gallanach. It is now represented my colleague and honourable friend Mr Alan Reid. The two preserved constituencies are not readily combined with the mainland. If they were to be so combined, they would be part of constituencies whose surface area would be larger than the largest constituency. Let us remember, when we talk about surface area, we are not talking about areas of sea as well, which would not be counted into surface area. The most recent judgment of the Boundary Commission was that the maximum size of a constituency should be what was manageable for constituents and MPs. That is why we brought forward the other rule, rule 4, which sets a physical, geographical size limit, just by sheer reference to manageability. It perhaps cannot stand as a legal principle, but trying to make sure that you do not go beyond a certain extreme of manageability is surely in the interests both of the Member, of whichever party, and the electors, who have to make contact with their Member of Parliament.

I think that it was being implied by the noble and learned Lord that there is some political motivation behind the proposal. As I have said, it is obvious from the extreme geographical position of the two constituencies why they have been exempted. Although Orkney and Shetland has been represented by a Liberal or a Liberal Democrat for the past 61 years, I am sure that the noble and learned Lord will acknowledge that, until 1997, the Western Isles had a Labour Member of Parliament—indeed, until 1970, when the late Donald Stewart won the Western Isles, it had been represented by the Labour Party from the 1930s. I am sure that his colleagues in the Labour Party in the Western Isles have no intention of giving up their aspirations for that seat. Our approach is in no way partisan; it is a recognition of geography.

Parliamentary Voting System and Constituencies Bill

Lord Reid of Cardowan Excerpts

Tuesday 18th January 2011 Lords Chamber

[Lord Davies of Stamford]

The noble Earl should know that, although I have changed parties, I have kept very much the same political principles all my life. I intend to continue to do so. The noble Earl was possibly not here when the noble Lord, Lord McNally, made the remarks that I have just referred to. I assure him that the noble Lord, Lord McNally, made those remarks; I have not just invented that. It seemed necessary to respond to the remarks and I was taking the obvious opportunity to do so.

[Lord Reid of Cardowan]

The illustration that my noble friend has given is absolutely apposite. What was being discussed throughout that period—proposed, ironically, by a Liberal Prime Minister—was the most important constitutional change of the 19th century. When it was rejected by this House, it led to another 100 years of war in Ireland. The consequences of getting constitutional change wrong are immense. No one is suggesting that this will lead to 100 years of war but it is not an insignificant change. It is, to many people’s minds, the biggest constitutional change in this country since 1832. Therefore, it deserves maximum scrutiny. Least of all does it deserve personal insults.

[Lord Davies of Stamford]

I am extremely grateful to my noble friend for his kind support. I come back to what the noble Earl, Lord Onslow, said.

--- Later in debate ---

[Lord Wallace of Tankerness]

This point may be what the noble Lord, Lord Reid, wanted to pick up on. I tried to indicate that we believe that 5 per cent, which is 10 per cent because it is 5 per cent each way of the halfway mark, allows the flexibility to take into account quite legitimate concerns. Some noble Lords were present at earlier debates when former Members of the other place were talking about the importance of the bond between a constituency and a Member. We believe they can be taken into account, bearing in mind the factors that the Boundary Commission is entitled to take into account and the extent that it thinks it should take them into account.

[Lord Reid of Cardowan]

Does the Minister recognise that in addressing one problem in a fair system—arithmetical equality, which we accept is a problem—he has created another that tends to undermine the second element of the British system, which is democratic accountability to recognised communities with culture and common links? He has done that by shifting the primacy in that relationship further towards arithmetical equality. In so doing, and by keeping it within a narrow band, he has hugely undermined the other element, which is the point that has been made today in practical terms. Does the solution of strengthening the arithmetical primacy but at the same time allowing a greater flexibility in the arithmetic, the solution put forward by my noble friend and learned friend Lord Falconer of Thoroton, not get him out of this hole?

[Lord Wallace of Tankerness]

The noble Lord, Lord Reid, sets up and explains the competing issues quite succinctly. I am trying to argue that the present arrangements have at their core a rule that states that constituencies should keep as close as possible to the electoral quota, but then import other rules that, as we can see by the outcome, drag them further away from that electoral quota and lead—