Borderlands

Lord Selkirk of Douglas Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord. Yes, I certainly give an unqualified welcome to that. The noble Lord is absolutely right; it is very good news, which we have just heard publicly this week.

[Lord Selkirk of Douglas (Con)]

Is the Minister aware that there has been a great deal of dualling between Edinburgh and Berwick, but less dualling between Berwick and Newcastle? If this development can be encouraged, it will greatly help the local economies of Berwickshire and Northumberland.

[Lord Bourne of Aberystwyth]

My Lords, I thank my noble friend very much for that—I think the A1 is the dualling in question. The Government committed £290 million to that in 2014, I think. My noble friend is absolutely right about the vital nature of infrastructure and good communications.

Devolution (Constitution Committee Reports)

Lord Selkirk of Douglas Excerpts

Monday 9th October 2017 Lords Chamber

[Lord Selkirk of Douglas (Con)]

My Lords, the speech just made is very interesting, because we are well aware that the devolution issues relating to Scotland, Wales and Northern Ireland are all quite different. The noble Lord, Lord Jay, led delegations from his Select Committee, on which I serve, and we went to each of the parliaments and saw very clearly not only that the issues are different but that we have a lot to learn from each other.

Tonight, I warmly welcome the noble Lord, Lord Duncan of Springbank. He is a very experienced parliamentarian from the European Parliament, and we very much look forward to his maiden speech—although I can think of few parliamentarians who have made more speeches before they make their maiden speech in this Chamber.

I served as an MSP for the first eight years, as did the noble and learned Lord, Lord Wallace of Tankerness, whom I vividly remember performing very effectively as Acting First Minister of Scotland when the Scottish Parliament met in Glasgow.

The Government and the opposition parties have been concentrating for months on how we can successfully undo the complex ties which bind us to the European Union. We know that there is still a long and winding parliamentary road ahead for us all to navigate, but while we discuss powers wielded by Henry VIII and the future jurisdiction—or more possibly non-jurisdiction—of the European Court of Justice, it is extremely important that we do not weaken the structure of our United Kingdom. I hope that the Minister will acknowledge this danger and assure us that the Government will do everything in their power to hold together what the Prime Minister has described as our “precious union”.

During the current Brexit process, this calls for an understanding of the sensitivity and hostility of the devolved Administrations to any unjustified retention by Westminster of power returned from the EU. It also requires a wholehearted commitment by representatives of the devolved institutions to engage in genuinely trying to reach agreements which benefit the whole United Kingdom.

The report Brexit: Devolution by the European Union Committee, of which I am a member, recognises the real danger which leaving the EU can pose to the somewhat piecemeal political structure and asymmetrical disposition of devolved power in these islands. It correctly concludes that our membership of the European Union has, as was said by the noble Lord, Lord Jay,

“been part of the glue holding the United Kingdom together since 1997”.

It continues:

“In practice, the UK internal market has been upheld by the rules of the EU internal market”.


It warns presciently that with Brexit comes,

“a risk that the complex overlapping competences within the UK could become increasingly unstable”.

Those statements come from pages 12 and 74 of the report.

The report cites the supremacy of EU law and its interpretation by the European Court of Justice as having ensured the consistency of regulations and standards across the whole United Kingdom. This includes devolved areas such as fishing, agriculture and the environment, whose future governance has already become a source of conflict between Westminster and the Scottish and Welsh Governments.

Clearly, it is a difficult balancing act to return power over those areas from Brussels directly to the devolved Governments while making sure that this does not result in a kind of economic balkanisation which damages the seamless working of the UK’s internal market, but this is surely a prime example of the need for the intergovernmental dialogue and co-operation which the report recommends. It must be improved, strengthened and made more transparent.

According to the report, most of the witnesses who gave evidence to the committee agreed that the United Kingdom Government needed to raise their game in this respect. It suggests that this could begin by making the present joint ministerial committees more effective by more preparation, a structured work programme and a willingness to accept that the Joint Ministerial Committee (EU Negotiations) is much more than a talking shop. The Constitution Committee, in its report Inter-governmental Relations in the United Kingdom, also acknowledges the need for improved lines of communication between the nations of the United Kingdom and calls for meetings of the joint ministerial committees to be given a higher profile, with more explanation of their work. The positive, well-thought-out recommendations of the noble Lord, Lord Norton, deserve to be given careful and serious consideration.

In their response to the EU Committee’s report, the Government insist that they have been clear from the start that the devolved Administrations should be fully engaged in the EU exit process. We can achieve far more,

“if we pull together than if we are divided”,

they say. Any post-Brexit changes, however,

“would be for the UK Parliament and where applicable the devolved legislatures to comment upon”.

It is hard to look beyond Brexit, but once our new political course is clearly set, we must take action to shore up our own union. One aspect of this was referred to the other day, when our Scottish leader Ruth Davidson criticised Britain for being too London-centric, calling for more jobs and cultural institutions to be located around the country, better to spread the benefits of the union.

The EU Committee report sees the need in the longer term for a strengthened forum for inter-parliamentary dialogue within the United Kingdom, and states that its resourcing and relationship with existing bodies such as the British-Irish Parliamentary Assembly needs careful consideration. It promises that this House will hope to play a part to begin with, by developing and broadening its well-established mechanisms for collaboration with colleagues in the devolved legislatures.

Can the Minister assure us that the Government will be sympathetic to all such aspirations and that they truly understand the need for more diversity, flexibility and transparency as we seek to strengthen and nurture our most precious union, now and in future?

EU: Energy Governance (EUC Report)

Lord Selkirk of Douglas Excerpts

Monday 13th June 2016 Lords Chamber

[Lord Selkirk of Douglas (Con)]

My Lords, I am delighted to follow the noble Baroness and to say how much those of us on her sub-committee appreciated her splendid leadership and commitment to producing this and other extremely good reports. The contribution that she made as chair and the work of all the members and the clerk helped to produce a really good report, whose conclusions and recommendations will stand the test of time. I wish her successor, the noble Lord, Lord Teverson, every good fortune. I served under him on another sub-committee dealing with foreign affairs and defence, and he, too, in my humble opinion, produced extremely good reports. They were very well thought out and, similarly, have stood the test of time.

I am glad to have the opportunity to say a few words this evening. Perhaps I should mention a past interest: I was a Minister for the Environment in Scotland for five years. I recall that speaking on the subject of how to protect the environment and sustainable development felt a little bit like preaching against sin: some people listened and some did not. Today’s debate is very different because an abundant and affordable supply of energy can be a life-saving measure in circumstances of extreme cold. Whatever the outcome of the referendum, it is extremely likely that continuity of gas supply for heating purposes will be enormously important for the health of our nation, as well as for the health of other European Union nations.

Inevitably, it makes sense to be prepared for unforeseen developments either through emergencies caused, for example, by floods or by nations cutting off the energy they supply or charging enormous fees for it. So it seems to me that developing EU energy governance is necessary to safeguard continuity of supply. In some ways, it is rather like taking out an insurance policy in respect of possible events that may never take place.

I ask the Minister to confirm that the Government will give full support to Recommendations 19 and 20. Recommendation 19 states:

“The Commission should ensure that proposals for a future energy governance framework include legal clarity, a respect for Member State sovereignty, a focus on security of supply, commitment to the consumer, real ambition for decarbonisation and increased regional co-operation”.

Fulfilling those aspirations is likely to be a substantial challenge. For that reason, it is appropriate that the final recommendation—Recommendation 20—takes into account the different timescales that may be applied by different countries. It is therefore right that Recommendation 18 states:

“Regional co-operation”—

the noble Baroness referred to very recent happenings—

“should be far more prominent in governance discussions”.

Similarly, it is right that Recommendation 20 lays down:

“The Commission and Member States should work together on a governance framework that recognises the different timescales that are involved and ensures policy coherence between short and long term targets and objectives”.

Perhaps the Minister will also confirm that on this one aspect of providing sufficient warmth to many millions of people, the Government should be, and should remain, sensitive to the needs of consumers throughout Europe.

It was Napoleon Bonaparte who is believed to have called our countrymen and countrywomen a nation of shopkeepers. According to Napoleon’s surgeon, the defeated emperor later explained his remarks in the following terms:

“You”—

by which he meant all of us—

“were greatly offended with me for having called you ‘a nation of shopkeepers’. Had I meant by this that you were a nation of cowards, you would have had reason to be displeased, even though it were ridiculous and contrary to historical facts; but no such thing was ever intended. I meant that you were a nation of merchants, and that all your great riches and your grand resources arose from commerce, which is true”.

He went on to say that no man of sense should be ashamed to be called a shopkeeper. Nowadays, of course, we would add, “and no woman”. Today, trade and commerce and the selling of goods and services in our country remain every bit as important as they were in Napoleon’s day.

This report is a good one. It has been well received by the European Commission, which, in its positive response, stated that national policies should contribute to member states working better together to meet the challenges of ensuring,

“secure, competitive, safe, affordable and sustainable energy to all consumers”.

I therefore commend this report as being worthy of the Government’s serious and sympathetic consideration and support.

Scotland Bill

Lord Selkirk of Douglas Excerpts

Tuesday 24th April 2012 Lords Chamber

[Lord Sutherland of Houndwood]

My Lords, the noble Lords, Lord Kerr and Lord Forsyth, raised a series of questions about the significance of the Bill that are perhaps taking us further than the Government intended this afternoon. I want to add one comment to what has been said. If the discussions of the consequences of this Bill, let alone of a referendum that includes a so-called devo-max question, are to be spread to other political parties and other political views, they should also be spread to the people of the rest of the United Kingdom because this Bill makes the West Lothian question more pointed and full fiscal autonomy would certainly make the West Lothian question more pointed. It is pointing towards the federalisation of Great Britain, which is not a question for the Scots alone. It is a question for the whole of the UK.

[Lord Selkirk of Douglas]

My Lords, I agree entirely with what the noble Lord has just said. First, I have two past interests: as an MSP for eight years and as a member of the Calman commission. I note with pleasure that all five Members of this House who served on the Calman commission are in their place. We had the support of a significant number of very highly qualified academics who gave us some expert advice during the time we sat, which was well over a year, when a great deal of evidence was taken. I particularly remember evidence being taken in the constituency of the noble Lord, Lord Forsyth, as well as in many other parts of Scotland. What was very significant was that a decisive majority welcomed the Scottish Parliament and believed that it had been a success.

I think the Minister should be strongly congratulated on his handling of the Bill, which has not been altogether simple or straightforward, but I think he has done it with tremendous skill. One point I would make is that it has been overshadowed, to some extent undeservedly, by endless arguments about the processes needed for the Scottish Government’s planned referendum. It is very welcome that the noble Lord, Lord Forsyth, has put down this amendment giving us this opportunity for this debate because the Bill produces the largest transfer of fiscal power from Westminster since the union.

The noble Lord, Lord Kerr of Kinlochard, said that there is an accountability deficit. I submit that the Calman commission and this Bill in particular address that deficit and make it very clear that—to sum it up in one sentence—if there is a reduction in the block grant from Westminster, there should be the opportunity for substitution. More than that, the elephant in the room throughout our discussions on the Calman commission was that there is a possibility that if a needs-based grant replaces the Barnett formula, the provision for Scotland might be greatly reduced, and if that were the case, it would be very necessary for the Scottish Parliament to have the flexibility to find the best level between essential services and taxation. I have to say that if a Government cut essential services far too far or raise taxes far too far, they will be voted out of office. The sanction is, of course, electoral and of the people. Certainly for me—and, I think, all members of the Calman commission—the two principles that weighed were accountability and equity. I mention equity because if in future there are proposals that go further than the Calman commission, it is extremely important that the representatives of all parts of the United Kingdom be consulted and thoroughly involved because it would have implications for their countries as well.

The Scotland Bill, so titled, is important because its very existence demonstrates that the present devolution settlement is not set in stone and can be adjusted to meet Scottish aspirations without destroying the United Kingdom. I note the sentiments expressed by the Prime Minister in his speech in support of the union, which he made in Edinburgh earlier this year. In that address he made a point of saying that the changes made by the Scotland Bill need not necessarily be,

“the end of the road”.

He went on to say:

“When the referendum on independence is over, I am open to looking at how the devolved settlement can be improved further. And, yes, that does mean considering what further powers could be devolved. But that must be a question for after the referendum, when Scotland has made its choice about the fundamental question of independence”.

[Lord Forsyth of Drumlean]

If my noble friend thinks that there are further powers that could be devolved, why did the Calman commission not recommend them?

[Lord Selkirk of Douglas]

My noble friend is putting into my mouth words that are not there. I am not making any such suggestion, but if he listens to what I have to say, he will see the logic of my argument. As the Prime Minister said, let us hold the referendum, preferably on a less dilatory timetable than the Scottish Government are proposing, with a single question—to that extent, I disagree with the noble Lord, Lord Kerr of Kinlochard—asking whether or not the Scots wish to leave the United Kingdom. Time should also be given for the implementation of the new powers and to see how they work. That is the answer to my noble friend Lord Forsyth.

Any moves beyond the terms of this Scotland Bill would be bound to affect the constitutional future of England, Wales and Northern Ireland, and MPs and other representatives in other professions would have to be very fully involved in any future discussions. I thought we got the balance right when we were on the Calman commission. We took an enormous amount of evidence; we considered it very thoroughly, and at the end of it all the commissioners came to a unanimous conclusion. I certainly stand by what was expressed by that commission, and I believe that all the other commissioners do as well, including the other four who are with us this afternoon.

A great many will advocate the clear merits of Scotland remaining as part of the long-standing, extremely successful partnership that is the United Kingdom. I do not believe that a unionist stance is in any way incompatible with giving support to the increased powers granted to the Scottish Parliament in the legislation that we have been debating.

I welcome the fact that the Scottish Parliament has agreed that the UK Parliament should consider the proposals in this Bill and, by passing that Motion unanimously, has given it its backing. I checked this morning, by ringing the Scottish Parliament Information Centre, SPICe, whether this had gone through unanimously, and it did; there was no vote. I say to my noble friend Lord Forsyth that that includes the Conservative group of 15 MSPs, and I welcome that.

We have before us a very significant and substantial reordering of devolution. It should be enacted in timely fashion and, in my humble opinion, the title should be kept in place.

[Lord Maxton]

My Lords, it was not my intention to speak on this. Briefly, it was with great pleasure that I listened to the noble Lord, Lord Forsyth, use the term “poll tax” instead of “community charge”. He actually proved the point that the Minister—who has done an excellent job, I have to say—made in the very first debate this afternoon, that if something becomes the common parlance, it should be used as the common parlance.

The real point is that there has yet again been confusion—the noble Lord, Lord Kerr of Kinlochard, did it—between devolution, the democratic process of devolution and independence. They are not the same thing. That is why, although I support what this Bill is doing, I am not sure that this is the right time to do it. I am not at all sure that we should not, first, have had the referendum on independence in order for Scottish people to make up their minds as to whether they want to be an independent country totally separate from the rest of the United Kingdom or they want further devolution. We should let them decide on that first. The second question is just a confusion. There should be one question—independence or nothing else. For me, devolution was always about democracy and not about the separation of the Scottish state.

I have to say to the noble Lord, Lord Forsyth, who made great play of the fact that he sat in the Cabinet and could talk to the Prime Minister when he was Secretary of State, that that is fine. Perhaps he could but he did not represent the people of Scotland when he did so because he did not have the majority of Members of Parliament in Scotland when he was putting Scottish legislation through.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I am devastated by that response. I am very disappointed in my noble and learned friend. I actually understood the criteria for the Short Title of a Bill, but I remember having a great struggle with the Scottish Office, which wanted to call a Bill the “Criminal Justice (No. 3)(Scotland) Bill” and I wanted to call it the “Crime and Punishment (Scotland) Bill”. I think that in the end I won that particular argument, but the legislation was promptly repealed by the Scottish Parliament, only to be reintroduced later as a populist measure in the same terms.

I do not accept that the Short Title I propose is too long. That was the only argument against the amendment that my noble and learned friend advanced in his interesting and helpful speech. One of the criteria is that the Short Title should not indicate advocacy or a point of view. I resisted that, although I was tempted. My draft suggested a Bill “to ensure that Scotland becomes the highest taxed part of the United Kingdom”, but the Public Bill Office felt that that did not meet the criteria. However, it would at least have warned people about what was coming down the legislative track.

As my noble and learned friend guessed, I tabled the amendment because I suspected that under our rules we do not normally make speeches when we are considering a Motion that a Bill do now pass. I suspected that people would want to get a few things off their chest. I shall resist the temptation to respond to all the points that were made, but I am also devastated by the remarks of the noble Lord, Lord Browne, who tells me that the people of Scotland stopped listening to me some time ago. I should be very grateful if he could tell me afterwards when it was that they were listening to me.

I have to say to my noble friend Lord Selkirk of Douglas, who said that I should note that the Scottish Parliament, including the Conservatives, had unanimously approved the Bill, he should note that the Scottish Parliament’s committee came forward with 45 different amendments to the Bill, which would have amounted pretty well to independence, and which the committee said it would insist upon. What my noble friend should note is that the Scottish Parliament seems to change its mind very radically very quickly. When people change their mind very radically very quickly on important constitutional issues, alarm bells should start ringing and people should start thinking about what is going on here. I have to say to the noble Lord, Lord Browne, who gave a romantic picture of the genesis of the—

[Lord Selkirk of Douglas]

Is my noble friend aware that in the Scottish Parliament there has been a great debate within the SNP as to whether the Bill is a block or a wedge? The SNP decided to agree to the legislative consent Motion. Is that not very much a step in the right direction?

[Lord Forsyth of Drumlean]

Not at all, because the SNP has clearly decided that the Bill is not a wedge and will help it to get independence. In that respect, I entirely agree.

[Lord Selkirk of Douglas]

If it is not a wedge, it is a block.

[Lord Forsyth of Drumlean]

Only if you believe everything they say in the Scottish Parliament. It is perfectly clear what has happened here. One of the extraordinary things about this whole issue of devolution is that for a long time one of my allies in opposition to devolution was the First Minister, Alex Salmond. He refused to join the constitutional convention, and when he went back to Scotland to be a—I am sorry, I nearly said something that I would have regretted—to take a leading role in the SNP in the Scottish Parliament, having stood on a platform in 1998 with Donald Dewar to campaign for the Scottish Parliament, he denounced devolution as a complete disaster. Now he goes around presenting himself as the champion of those people who want devo-max. When you look around, there does not seem to be anybody who wants devo-max, or who can at least explain what it is.

I have to say to my noble friend that the nationalists have been completely opportunistic about devolution. In the beginning, they thought, like the noble Lord, Lord Robertson, that it would kill nationalism stone dead. When they realised what my noble friend Lord Lang and others, including our previous Prime Minister, Sir John Major, were warning—that it would be a slippery slope that would lead to their objectives—they changed their position in order to get it. Then they flip-flopped. At each point where further concessions have been made, they have put them in their pocket, which is why they voted unanimously, and moved the agenda on. What the noble Baroness, Lady Liddell, said, is absolutely right: the Bill is completely out of time. It is as relevant as the Daleks to youngsters nowadays—although I believe they are making a comeback. I have no doubt that devolution in another Bill will be coming back in due course.

The noble Lord, Lord Browne, says that this has all been part of some great process. I was devastated by the remarks of the noble Lord, Lord Maxton. The fact is that this Bill’s genesis was a deal put together by the unionist parties after, very bravely, Wendy Alexander, who was then the leader of the Labour Party in the Scottish Parliament said, “We ought to have a referendum on independence and Alex Salmond needs to put his case to the Scottish people”. She was right then, but the rug was pulled out from under her by Gordon Brown as Prime Minister because he had an attack of the jitters that the referendum might go the wrong way. As a result, the Labour Party was left with no policy, so it said, “We’ll set up a commission”—does this sound familiar?—“because we are not sure what we’re going to do next”. It set up a commission and, very foolishly, the Conservative Party and other parties joined in a commission to rescue it.

That is the genesis of the Calman commission. It was to come up with something that would stop Alex Salmond winning the subsequent election, which everybody accepted—did they not?—was impossible because the rules of election to the Scottish Parliament had been devised by the very clever Donald Dewar and other clever people to ensure that no party would ever be able to get an overall majority. Just like the notion that devolution would kill nationalism stone dead, that turned out to be another myth. The result is that we are now faced with a nationalist majority committed to an independence referendum. The noble Baroness, Lady Liddell, is absolutely right: that is the issue now. The Bill has been left stranded as an orphan that is not even discussed in the Scottish media.

Although the noble Lord, Lord Kerr, and I disagree on the objectives here, he is absolutely right when he criticises the fact that the Prime Minister went up to Scotland and spelt out in a brilliant speech the case for the union but then went on to say, “Of course, after you have voted against independence, we will discuss more devolution”, without saying what that would be. That was a huge error because of course, once again, Alex Salmond picked that up, put it in his pocket and now, as far as he is concerned, the debate is about what extra devolution we are going to get. At some point, those of us who are unionists have to stop sliding down the slippery slope, define what the issues are and give the people of Scotland an opportunity to determine them. No doubt that will happen in due course.

I just wanted to say—

Scotland Bill

Lord Selkirk of Douglas Excerpts

Monday 26th March 2012 Lords Chamber

[Lord Wilson of Tillyorn]

I understand what the noble Lord is saying, but the amendment would change the current way in which financial arrangements are made for Scottish universities.

[Lord Selkirk of Douglas]

My Lords, I wish to ask a question in the context of the amendment. I seem to remember that when the Scotland Act was passed, discrimination issues were reserved to the United Kingdom Parliament. That was certainly the case as far as the Equal Opportunities Commission was concerned and, in a sense, this is an extension of the commission’s argument. My question is as follows: why cannot provision for English students to be treated on the same basis as other European students be earmarked in the block grant? Most of us who follow history are aware that when a large number of Scots descended on Scotland after the Act of Union, discrimination was not unknown. That would have been condemned by Scottish parliamentarians at the time, and it is extremely difficult to justify an element of discrimination against students from elsewhere in the United Kingdom. I hope that the Government can come up with a solution.

There are two principles at stake. One is whether discrimination is wrong and the other is whether this should be treated solely as a devolution issue. It comes down to whether the principle of outlawing discrimination is one that comes under the United Kingdom Parliament and should be enforced throughout the United Kingdom, or whether it should be treated primarily as a devolution issue. It is very hard to justify the existence of discrimination against those who come from elsewhere in the United Kingdom. If discrimination is tolerated in one case, it will be tolerated in another case. As a Parliament, we should do everything within our power to prevent this anomaly continuing.

[Lord Sewel]

My Lords, perhaps because of my previous interest in Scottish higher education, I have been somewhat targeted by universities in Scotland. I must say, from the start, that I find myself in the difficult position of being in opposition to the noble Lord, Lord Wilson of Tillyorn, who was my chancellor. I was targeted for making what have been called “unhelpful comments” in Committee. I quite like making unhelpful comments in Committee. Of all the representations that I have received, not one adequately addressed the EU anomaly. They were silent on that. They were, of course, concerned, institution by institution, with the need to protect their income but that is ultimately a matter for the Scottish Government, not for this Parliament. The Scottish Government could easily devise a funding formula that enabled English domiciled students to be supported at Scottish universities.

The other thing that I have found offensive—I use the word carefully, but I do use it—is the argument that if there is not this discrimination, Scottish universities will be swamped by English students. That has something akin to the ring of ethnic cleansing about it. I say that as someone who has, fortunately, had the great privilege of being educated in an English, a Welsh and a Scottish university. As my noble friend Lord Morgan said, anything that turns away from that great value just does not understand the nature of higher education as a universal good.

Let us come down to the grubbiness of it. When I was a Scottish Office Minister I was in charge of the first comprehensive spending review. As we developed the argument, I asked the simple question: what would happen if Scottish universities were funded out of the block grant on the basis of Scottish students? My officials turned to me and said: “Minister, we would at least have to close one Scottish medical school. The best card we have up our sleeve to defend the Barnett formula is that we educate English students out of the Scottish block”. Just think what the implications for higher education would be if that became the reality: much more than the problem of solving English students being properly financed to attend Scottish universities.

That is in the past. Issues like this can usually be reduced to very simple propositions. The simple proposition here is that what is intended is deeply and grossly unfair and nothing that I have read or heard persuades me otherwise.

Scotland Bill

Lord Selkirk of Douglas Excerpts

Wednesday 21st March 2012 Lords Chamber

As far as the referendum is concerned, someone who plays football for Scotland but has a career in England or somewhere else would not be allowed to vote about the future of that country. Many other issues will come down the line—dual nationality, passports and security, as my noble friend mentioned earlier—but the simple point that I put to the Minister is that surely there is some way of finding a system whereby those who were born in Scotland can have a say on the future of the country of their birth.

[Lord Selkirk of Douglas]

My Lords, the noble Baroness has, as usual, made a very persuasive speech, and I look forward to the Minister’s reply to the points that she has raised.

Amendments 93 and 98, in the names of the noble Lords, Lord Steel of Aikwood and Lord Foulkes of Cumnock, and the noble Earl, Lord Caithness, call for a much greater involvement of the Electoral Commission, which I strongly support, on account of two incidents.

The first incident involved the noble Lord, Lord Steel of Aikwood. In the first election to the Scottish Parliament he and I were two of the last three to be elected in Scotland. The counters went on strike at 4.30 am because of the complexities of the proportional representational vote. As a result, we came back the next day and we were elected two out of the last three; the third was Robin Harper, the first Green candidate to become a parliamentarian. However, we did not know that 2,000 votes had not been counted.

When this became clear, with great alarm I wrote to the Secretary of State for Scotland, now the noble Lord, Lord Reid. He replied that he did not have the powers to do anything about it, but that we could take legal action if we so wished. Happily, the chief executive had thoroughly studied the matter, and whichever way the votes were counted all three of us would have been elected. As soon as we knew that, we had no desire to take the matter any further. I think that the votes have now been destroyed and it is impossible to rectify the matter. However, that incident should never have occurred and if the Electoral Commission had been involved, I believe it would not have done.

The other incident occurred during the devolution referendum in 1979. I remember vividly the late Robin Cook being very much involved because 2,000 electors had written “No” opposite the word “No” on the ballot paper, and the counting officer said that writing “No” opposite “No” meant “Yes”. I actually believe that they meant “No”. We asked to speak to the chief voting officer in Scotland but he would not come to the phone. There were murmurings of calls on television for resignations if the matter was to be swept under the carpet. He did come to the phone. He was not very good tempered but he said he would look into it. Within two hours, they had rectified the matter and the votes were counted as no votes. This was important in that referendum because it was on a knife-edge; the results were very close and regarded as somewhat inconclusive at the time.

I mention these two episodes to emphasise how very warmly I welcome the Minister’s statement that he wishes to involve the Electoral Commission in an overseeing role. If you have a Government at Westminster who take one view and a Government in Edinburgh who take a different view, it is very important to have an impartial body that has both objectivity and expertise.

[Lord Watson of Invergowrie]

I wish to make some comments in relation to the amendments spoken to by my noble friend Lady Taylor of Bolton and the noble Lord, Lord Selsdon, in respect of who should have the opportunity to vote in a referendum on Scottish independence. Much as I respect my noble friend, I cannot agree with her premise that those who were born in Scotland and move to other parts of the United Kingdom or even further afield should have the opportunity to vote in the referendum.

At the time of the referendum, whenever it is—like many other noble Lords I hope that it is as soon as possible—it has to be a vote for people who are at that time living in Scotland. I am aware that that will involve a number of people, not least a considerable number that is reckoned to be about half a million people, who would describe themselves as English domiciled in Scotland, as well as people of various other nationalities who happen to be living and working in Scotland. If they are on the electoral register as EU citizens, I believe that they should have a vote.

The question of Scots who have moved—of course, the Scottish diaspora is considerable—beyond the confines of Scotland is a difficult issue in this situation. To some extent, I have some connection because my son has a Scottish father and an English mother but he was born in England. He is well short of voting age but the point is that many people in that situation would have an interest. In the future, he may choose to live in Scotland.

After leaving university, I went to live in England. I was living and working in England at the time of the 1979 referendum. I was not on the electoral register in Scotland, although I travelled home in the weeks immediately prior to the referendum every weekend to campaign vigorously for a yes vote. Even though I did not have a vote myself, it did not occur to me that there was anything wrong with that. I had chosen for whatever reason to leave Scotland.

It may well be that there are many thousands of people who, like my noble friend Lady Taylor, were perhaps very young when their parents left and they more or less had to go with them. I accept that they may not have made that decision but none the less on becoming an adult they would have the option to go back to live in Scotland if that is their choice. They are more than welcome to do so. For people who have left Scotland—I left, went back and left again—the situation is simple. You have to be domiciled in Scotland to have a vote on something as important as this. Just to say, “I am Scottish in my blood; I feel a Scot; and I do not feel any other kind of allegiance” is not enough.

A very interesting example was raised by my noble friend when she talked of the very impressive Bolton Wanderers manager, Owen Coyle, who I know. When I was a Member in another place, Owen and two of his brothers who were also professional footballers at the time were members of the Labour Party in that constituency. Whether he holds membership now, I do not know. I have not spoken to him for some years. But the interesting thing is that Owen Coyle, born and bred in Glasgow, played for the Republic of Ireland. He is an international but he played for the Republic of Ireland. It is not just as simple as saying, “He is a Scot, living in England and therefore he should have a vote”. He has played for the country of his parents because they were Irish. Various issues muddy the water here.

The noble Lord, Lord Selsdon, introduced the concept of Scottish nationality, which is difficult to define in itself. He says that a person shall be considered to be of Scottish nationality if they are ordinarily resident or resident in Scotland, wherever they come from, however long they have been there and having made their home in Scotland. I would say that someone in that situation should be entitled to a vote in the independence referendum but to say that they have Scottish nationality is stretching it a bit. I do not think that that is the way to define it. I understand the point that he is making and, to some extent, I agree with that part of his amendment but not with the bit that follows.

To conclude, this is a matter of great importance to Scots wherever they live and they are of course spread throughout the world. At the time of the independence referendum, it cannot be justified to say that those people who, for whatever reason of many reasons, have left Scotland and have gone to live somewhere else should have a vote. The people of Scotland—but not just Scots of course—at the time of the referendum, I believe, should be those who make the crucial decision when the independence referendum comes along.

Scotland Bill

Lord Selkirk of Douglas Excerpts

Tuesday 28th February 2012 Lords Chamber

I close by reminding the Minister that the Calman Commission was crystal clear in its opposition to the devolution of legislative competence for the Crown Estate in Scotland. I hope that the Minister will be able to give this House his assurances that the Government would not seek to go against this recommendation at this late stage in the legislative process.

[Lord Selkirk of Douglas]

My Lords, I want to address Amendment 45, to which the noble Lord has just referred. This amendment inserts into Clause 22 a commitment to ensure that before a person finds himself or herself in the role of Crown Estate Commissioner for Scotland, that person should be well qualified to do the job. The reason for this is that the resources and responsibilities of the Crown Estate Commission in Scotland are very great—its value is believed to be about £207 million—and I understand that last year, its revenue surplus was more than £9 million, to which the Treasury was entitled under the Civil List Act 1952. The actual Crown Estate is very considerable in Scotland, and has many responsibilities for farms, forests and estates, some of which have many sites of special scientific interest. But the responsibilities do not stop there.

The various Crown regalia include the areas on the coast between high and low tide, and it is no surprise that the Crown Estate has the rights to the foreshore and the seabed, as well as rights for minerals and for salmon fishing. The Minister, the noble and learned Lord, Lord Wallace of Tankerness, may be one of the few in this House who will be aware that in Orkney and Shetland, which he used to represent as an MP, the Crown Estate had absolutely no salmon rights at all. This is because in the past feudal law did not apply there, but udal law did. However, I must say that the Crown Estate has been extremely busy elsewhere, and is actively helping to develop ports and harbours which will benefit the tourist industry which is so important to Scotland. It has, in addition, many major investments in renewable energy, and may invest up to £20 million more during the next few years.

I have a very high regard for the Crown Estate commissioners and wonder whether it might be appropriate to recognise in this legislation their expertise in carrying out their important duties. At present, no detail is put forward in the Bill relating to the qualification of the person who might be appointed. This probing amendment would ensure that the holder of this office will remain highly qualified. I am grateful to the noble Lord, Lord Browne of Ladyton, and the noble and learned Lord, Lord Boyd of Duncansby, for adding their support to this amendment.

It has not escaped us that the Secretary of State for Scotland recently made a significant statement about the Crown Estate. He established a coastal communities fund, a grant-giving body, which comes into effect from April. He is hoping for innovative bids. This is funded from the Crown Estate’s marine activities. The fund is UK-wide and relates to charities, businesses, social enterprise and local organisations. It allows for the support of economic development relating to the environment, education and health. I understand that £4 million will be allocated every year in Scotland. That is an indication of revenues raised in Scotland being put to very good use. Is it not the case that, with the Crown Estate Commission having such an important role, the person who looks after its interests should be properly qualified? If the Minister in his wisdom considers this amendment is not strictly necessary, I hope that he will give us all satisfactory reassurances.

[Lord Forsyth of Drumlean]

My Lords, I support the amendments in the name of the noble Lord, Lord Browne of Ladyton. This may appear to be simply a matter of terminology, but a very important point is being made and it is not one just of consistency. The use of the phrase “Scottish Crown Estate Commissioner” in the Bill implies that there is a Scottish Crown. It is not a Scottish Crown estate; it is the Crown Estate in Scotland. The amendment in the name of the noble Lord, Lord Browne, makes that clear by suggesting that the commissioner should be referred to as the “Crown Estate Commissioner for Scotland”.

That is deeply worrying and I do not know what is going on in the Scotland Office. This sloppy attention to language is creeping in. It has a sort of nationalist feel about it. I should check with the clerk that it is within the rules of order to refer to the Crown here, but it might be appropriate to point out that the English Crown was taken over by the Scottish Crown in 1603 in a reverse takeover.

On an issue related to this use of language, the First Minister the other day referred to how after independence there would still be a United Kingdom, which is absolute nonsense. The United Kingdom was created in 1707 when the kingdom of Scotland and the kingdom of England—

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Tabled by

[Lord Selkirk of Douglas]

45: Clause 22, page 15, line 9, leave out from “who” to end of line 11 and insert—
“(a) is qualified in land management or the law of Scotland; and(b) has experience of the functions of the Commissioners.”

[Lord Selkirk of Douglas]

In view of the reassurances given by my noble and learned friend, I shall not move the amendment.

Amendment 45 not moved.

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Moved by

[Lord Selkirk of Douglas]

46: Clause 23, page 15, line 28, at end insert—
“( ) Regulations applying in Scotland may only be made if the Secretary of State has consulted with such persons as he or she considers appropriate.”

[Lord Selkirk of Douglas]

My Lords, I wish to speak to this amendment briefly as it is a probing amendment. It would ensure that the Secretary of State must consult on regulations made under Section 10 of the Misuse of Drugs Act. The reason for this is that the drugs concerned are controlled drugs and licensing provision should have proper consultations. If the amendment is accepted in principle, it would mean that the regulation-making power would be subject to the principles of openness and transparency. Consultations in this case are important in view of the importance of the subject and the new breakthroughs in research that are occurring all the time. Further, circumstances can differ widely from one area to another and consultations would mean that the Government would pick up whatever special circumstances existed in different areas.

I hope the Minister in his wisdom will feel able to look favourably on this matter and that he will stress the importance of good practice and best practice. I beg to move.

[Lord Maclennan of Rogart]

I hope my noble and learned friend will agree that it would always be appropriate in these circumstances to consult NICE.

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[Lord Wallace of Tankerness]

My Lords, Clause 23 gives Scottish Ministers the power to license Scottish doctors to prescribe three controlled drugs—cocaine, diamorphine and dipipanone—for the treatment of addiction. The Calman commission recommended that responsibility for the licensing of controlled substances used in the treatment of addiction should be devolved to Scottish Ministers as part of their responsibility for health and well-being. The UK Government consider that Scottish Ministers are best placed to consider the particular circumstances in Scotland when deciding which doctors should have the authority to prescribe or administer the three controlled drugs used in the treatment of addiction. That relatively narrow devolution is set out in Clause 23.

I am grateful to my noble friend Lord Selkirk for his interest in this clause. As I have indicated, the Government certainly want to ensure that the Scottish Government have the necessary powers and abilities to tackle drug misuse effectively. That is why we have introduced Clause 23. However, it is perhaps important to indicate that while Scottish Ministers can consider the particular circumstances in Scotland when deciding which doctors based in Scotland should assume the responsibility to prescribe or administer specific drugs, they do so pursuant to regulations made under the Misuse of Drugs Act 1971 by the Secretary of State—the Home Secretary.

My noble friend’s amendment would require the Secretary of State to consult the appropriate persons before such regulations were made. The power to make regulations and the responsibility for the form of those regulations is reserved to the Secretary of State. The Secretary of State is already required by statute to consult the Advisory Council on the Misuse of Drugs before making regulations made under the 1971 Act. As a matter of good practice, the Secretary of State will consult key partners, and often the public, before implementing changes to regulations made under the 1971 Act. The Home Office has recently completed a three-month public consultation on proposed changes to, and the consolidation of, the Misuse of Drugs Regulations 2001. I am afraid that I cannot tell my noble friend Lord Maclennan whether NICE was consulted but, as I can ascertain, that would seem to be one of the bodies that might have been consulted. In the context of the consultation, officials from the department met their counterparts from the Scottish Government to discuss the proposals.

The Bill is devolving the licensing function to Scottish Ministers, and they will consult whoever they think appropriate while exercising that function to license doctors in Scotland. The making of the regulations remains reserved to the United Kingdom and the Home Secretary and I respectfully ask my noble friend to withdraw his amendment. I am sure that this point will have been noted by others, not just in the UK Government but by Ministers in the Scottish Government.

[Lord Selkirk of Douglas]

I thank my noble and learned friend Lord Wallace of Tankerness very much for his reassurances and I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Scotland Bill

Lord Selkirk of Douglas Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord Browne of Ladyton]

The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.

Going back to my noble friend’s amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.

I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O’Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.

[Lord Selkirk of Douglas]

Would the noble Lord care to bear in mind that the Law Reform (Miscellaneous Provisions) (Scotland) Act removed the discrimination which he claimed with regard to rights of audience for solicitor advocates? I also understand that my noble and learned friend Lord Mackay of Clashfern was instrumental in ensuring that the same thing happened south of the border.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for that intervention. I am a member of a profession that prides itself on discrimination—at least certainly in its history it did—between those who had rights of audience in the higher courts and those who were historically perfectly capable of making the arguments but were denied. That division was addressed in the way the noble Lord has suggested. I am absolutely certain that the discrimination I was alluding to, which was based more on geography than on someone’s membership of certain branches of the profession, has now been addressed. I am not entirely sure whether it has or not, but the purpose of introducing it was not to take us down a cul-de-sac, but to explore the issue of whether the interest in principle of the noble Lord, Lord Forsyth, was a necessary way of redressing a situation that went beyond student fees.

Scotland Bill

Lord Selkirk of Douglas Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Stephen]

My Lords, I agree very much with the first contribution that the noble Lord, Lord Forsyth, made. This is essentially a matter for the Scottish Parliament, which has wide discretion in this area. Unfortunately, I cannot agree with the suggestions that he made in his most recent contribution. I agree with a great deal of what the noble Lord, Lord Foulkes, said. I am sure that others who have been in the Scottish Parliament, most notably my noble and learned friend Lord Wallace of Tankerness, also agree with a great number of his suggestions, most particularly about the guillotining of virtually every contribution made in the Scottish Parliament. The noble Lord is absolutely right; it is impossible to make a full and weighty contribution when the guillotine constantly comes after sometimes less than four minutes. These issues should be addressed, and I hope that in addressing those issues the Scottish Parliament will look to the contributions of former Members and those who have had experience of the Parliament. But I do not think that it should be as a result of an amendment proposed through the House of Lords that those matters are best addressed. I am sure that the Minister will explain that those matters are being looked at; I understand that there is a concerted effort to look at changing the way in which the Scottish Parliament operates. That is all the more important in the context of more powers being granted to the Scottish Parliament; as the Parliament grows and develops, these issues should be tackled, and the noble Lord, Lord Foulkes, made an extremely valuable contribution in pointing to the Parliament the way ahead.

[Lord Selkirk of Douglas]

If I may, I would like to ask a very brief question to the Minister in this connection. During the Calman commission, we recommended that more time should be given for the final stages of Bills in the Scottish Parliament. It seemed to us that with many Bills, voluntary organisations, charities or other worthy bodies would have recommendations to make but would get virtually no changes in the final stages of the Bill because procedures were so rapid and everything went so quickly. My understanding was that that was under consideration by the Scottish Parliament, and I wonder whether the Minister could give us the up-to-date situation on that subject, if he has the facts readily at hand.

[Lord Boyd of Duncansby]

This is the first time that I have spoken at this stage of the debate, so I renew my declaration of interest in the Calman commission. I am somewhat surprised to find that I am standing here at the Dispatch Box, and I hope that the Committee does not find it strange that two lawyers who were both on the Calman commission now find ourselves on opposing sides of the bar but pulling in the same direction. I hope that it reflects the cross-party approach to the Bill.

To my noble friend Lord Foulkes of Cumnock I can say that I was very pleased, particularly given what has been said already, that I was one of those invited to his party, and that I very much enjoyed it. So if I disagree with him on any point, he can be assured that it is not because I am biting the hand that fed me.

On the issue of timetabling, I think I am right in saying that there are states within the United States that have within their constitution maximum times during which legislators can sit. They take the view that the longer they sit the more mischief they can make. That might be one approach. In Britain, we tend to take the opposite view—that we pay legislators to legislate, and if they are not sitting in plenary session, they are clearly not worth the taxpayers’ money.

The court of public opinion is the important element here. I suspect that it modified the sittings of this Parliament, given the criticisms that were made about the long summer recess, but clearly it may also very well have worked in relation to the Scottish Parliament, given the proposals. In particular, the amendment that my noble friend has put down may very well have spurred some action on it. With these words, I look forward to hearing from the Minister.

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7: After Clause 6, insert the following new Clause—
“Discussion of reserved matters
(1) Schedule 3 to the 1998 Act (Standing orders—further provision) is amended as follows.
(2) After paragraph 7 insert—
“Reserved matters8. The standing orders shall include provision for ensuring that the Parliament shall not discuss items in Schedule 5 (reserved matters) except on a motion to make representations to the United Kingdom Government.””

[Lord Selkirk of Douglas]

My Lords, may I speak to—oh! I am sorry.

[Lord Foulkes of Cumnock]

Members will be getting fed up with my voice by now. I am glad that I withdrew the previous amendment and did not move Amendments 4 and 5. I tabled those amendments but I could have put down dozens more. There is a whole range of issues that we could have discussed. If we had wanted to cause trouble—heaven forbid that I should cause trouble here—I could have tabled dozens of amendments and delayed us. The fact that we are getting though the Bill relatively rapidly shows the good will of not just the Front Bench but the Back Benches on this side towards the coalition Government. Whether they deserve it is another matter, but they are getting it.

I come now to the discussion of reserved matters, which relates in some ways to the previous amendment. In my time in the Scottish Parliament—I think this will apply to other Members here who were Members of the Scottish Parliament—it was very frustrating that the SNP in particular would use up the limited time available, including government time, for discussion of reserved matters. These included foreign affairs and defence; they went on and on about these areas. It is understandable that they should discuss them where they impinge on some of the Scottish Parliament’s responsibilities, but it worried me that it restricted the time for discussion of very important matters.

We have devolved to the Scottish Parliament some of the major areas that affect the lives of people in Scotland, such as all aspects of education. However, there were no really detailed debates on it. The right reverend Prelate the Bishop of Chester would be astonished if he came to the Scottish Parliament and saw how little time it spends on discussing the details and development of education in the forum of the plenary sessions. Then there is the development of the health service, with telemedicine and all the new developments that are taking place; and social work and the links between it and education and housing. There are many issues that the Scottish Parliament should be discussing, but it never seems to get around to doing so. These are vitally important issues.

This is a related issue but it is slightly different. I also get the feeling that, as the SNP has moved into the ascendancy, first as a minority and now as a majority Government, it seeks to operate almost as a de facto if not de jure independent Parliament. It wants to take on more responsibilities and pretend or imagine that it is dealing with all these issues. I had occasion to raise this with Sir Gus O’Donnell, now the noble Lord, Lord O’Donnell, in a question about the Permanent Secretaries—first Sir John Elvidge and, more recently, Sir Peter Housden, who has gone native since he moved. He is from Shropshire originally, a lovely county of England, as I know only too well. They seem to be advising the Scottish Executive on how to move towards independence. They seem to be giving them all the advice, guidance and detail that they need and, in Sir Peter’s case, almost encouragement to move towards independence. I hope that Sir Jeremy Heywood—he has a more pragmatic and sensible view on this than Sir Gus O’Donnell, but perhaps I should be careful about saying that—will look at things in a more pragmatic and sensible way and remind Sir Peter Housden that he is still a member of the UK Civil Service and still owes some loyalty to the Crown and the United Kingdom Parliament although he has been seconded to the Scottish Parliament and should not be dealing with these matters.

It is fair enough for the Scottish Parliament to consider reserved matters when it wishes to make representations on them to the Westminster Parliament, particularly to the House of Commons. However, for it to have debates on nuclear weapons, defence policy, foreign affairs issues, reserved aspects of welfare or on major economic issues which are still the responsibility of this Parliament and the UK Government, seems to me not just wrong in principle but a waste of the Scottish Parliament’s valuable time. I hope that we will send a message to it that—

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Moved by

[Lord Selkirk of Douglas]

8: Clause 7, page 6, line 13, leave out “The Presiding Officer” and insert “A law officer making a reference under subsection (1)”

[Lord Selkirk of Douglas]

My Lords, I will speak to Amendments 8 and 11. In seeking to speak earlier, I was confusing Clause 7 with Amendment 7; I was not trying to hurry up the noble Lord—which would have been impossible in any case.

The purpose of Amendments 8 and 11 is to include the law officers—it could be the Attorney-General, the Advocate-General for Scotland or the Lord Advocate—among those who would be responsible for publishing a reference of a part of a Bill to the Supreme Court. The Bill lays down that it should be the Presiding Officer who should publish a notice of the reference to the court in the Edinburgh Gazette, and in such other ways as the Presiding Officer considers appropriate. As the reference should probably be made in most cases by one of the law officers, surely it is appropriate that it should be his or her responsibility to publish the fact that a reference has been made; for example, by putting it on the departmental website. The amendment ensures that the Executive take responsibility for publishing references made by them, thus showing a respect for the doctrine of the separation of powers.

I notice that the Minister has put down Amendments 9 and 10, which may achieve very much the same objective. If I am correct in that assumption, and they fulfil the same purpose but rather better—or at least are better expressed—I will not insist on these amendments and will withdraw them. In any case, I very much look forward to hearing what the Minister has to say.

[Lord Boyd of Duncansby]

My Lords, this group includes a notice in my name and that of my noble friend Lord Browne about Clause 7 standing part of the Bill. I will start with that and deal with the other amendments in due course.

Clause 7 introduces a new mechanism of a limited reference of a Bill to the Supreme Court to determine whether certain provisions of the Bill are within the competence of the Scottish Parliament. At present, once a Bill has passed through all its stages in the Scottish Parliament, it is for the Presiding Officer to present the Bill to Her Majesty for Royal Assent. However, before the submission for Royal Assent, there is a 28-day period during which the law officers—the Advocate-General, the Lord Advocate and the Attorney-General—can consider the Bill and if so advised refer it under Section 33 of the Scotland Act to the Supreme Court on a question as to whether any of its provisions is within the competence of the Scottish Parliament. Under Section 33, the whole Bill is referred and there is no mechanism to refer only certain parts of the Bill. Even if only one part is thought to be outwith the competence, none of it can be commenced until that issue is disposed of.

That explanation of the effect of a reference under Section 33 perhaps sets out the argument for the Government’s proposals in Clause 7. However, there are serious concerns as to how this will work in practice. I hope that this debate will draw out some of the rationale behind their proposals. To date, there has been no reference under Section 33 to the Supreme Court of a Scottish parliamentary Bill.

It might help if I briefly set out the internal procedures put in place during my time as Lord Advocate to ensure that Scottish Bills were within the competence of the Parliament. A Bill introduced into the Scottish Parliament by a Scottish Minister must be accompanied by a statement under Section 31 of the Scotland Act that in his or her opinion the Bill is within the legislative competence of the Parliament. Members of this House will be familiar with that kind of statement because all Bills presented here are accompanied by a statement made under Section 19(1)(a) of the Human Rights Act. The Scotland Bill is no exception to that. Therefore, there is a certificate, as it were, on all Scottish Bills which are put into the Scottish Parliament.

Certainly, in my time as Lord Advocate, no statement would be given by a Minister without their having sought the advice of the law officers that it could be made. I cannot speak for present procedures and it is possible that they have changed, although I have no reason to think that they have. Nevertheless, there are in place substantial internal procedures to ensure that Bills are within competence. In reaching a view on the competence of a Bill, there were a number of procedures. Those who were Ministers at the time will recall the passporting arrangements whereby there was a process with the Minister for parliamentary business and the Lord Advocate to have what in the UK Government would be a legislation committee—certainly, when I was Solicitor-General there was a legislation committee—which considered all the issues that were thrown up by the Bill, including legislative competence.

In addition, officials from the law officers’ departments were in constant touch with each other. We would talk to officials within the Advocate-General’s office and, for that matter, the Attorney’s office. Officials in the Scottish Government Legal Directorate would also engage with relevant departmental officials—for example, in the Home Office—to ensure that issues were identified at an early stage.

The role of the Presiding Officer is very important. The noble Lord, Lord Steel of Aikwood, will have had first-hand knowledge of that. The Presiding Officer must decide whether a Bill presented to the Scottish Parliament is within the competence of the Parliament, although I think I am right in saying that the standing orders allow for that decision to be overridden by the Parliament, but nevertheless it is an important element. Again, contacts were made between the office of the Presiding Officer and the law officers to ensure, as far as possible, that any Bill presented was within competence.

On amendments to Bills as they proceed through Parliament, it is true that not all amendments were referred to the law officers, but those that might cause an issue again were referred. I can say that on more than one occasion I did make it known both within the Executive, as well as on occasion to the individual Member who had proposed the amendment, that if it found its way into the Bill, the question of legislative competence would arise and that I or another law officer might have to refer the issue of competence to what was then the Judicial Committee of the Privy Council and is now the Supreme Court. So my experience is that a number of mechanisms are available for the detailed consideration of a Scottish Bill at all stages of its passage through the Scottish Parliament, and that issues of competence should be dealt with in that process. Even so, the Bill would be given another look once it had gone through all its processes. We usually took 28 days to do that, although there were occasions when there was an emergency and the law officers dispensed with the period of 28 days.

What this clause now proposes is that there will be a mechanism for referring part of a Bill to the Supreme Court for scrutiny. As I understand it, what will happen is that the Bill could still be given Royal Assent despite the limited reference while the issue is being considered by the Supreme Court. There is a mechanism for the remaining unaffected parts of the Bill to be brought into effect. However—I am looking for some guidance from the noble and learned Lord on this—as I also understand it, the Supreme Court would have a significant role in determining or making provision for how it would come into effect. I shall come back to that in a moment.

The Scottish Government have said that they are not in favour of this. An interesting point is the question of whether it is desirable to ask Her Majesty for Royal Assent to a Bill with disputed provisions in it. There may well be a point to be made about that, although perhaps not to be pressed too far. Nevertheless, there is also the question of what signal that would give the general public. Legislation on the statute book may not be in force but usually there is no question mark as to its validity. Moreover, the provision that:

“The Queen’s Printer for Scotland may publish notice of the reference and of the effect”,

may not be sufficient.

Clause 7 was not one of the recommendations of the Calman commission. I think it arose as a result of the commission’s general recommendation that:

“There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective”.

I do not criticise the Scotland Office for having embarked on that, but the Government have identified through the review a number of areas, including this one, where they could make further provision.

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[Lord Steel of Aikwood]

I do not know whether I am interrupting at the wrong point but, after listening to the past hour of debate, I want to add that even those of us who are enthusiastic about devolution have to admit that it has created a field day for lawyers. We have lawyers galore all over the place. I was most grateful to the noble and learned Lord, Lord Boyd, for describing very accurately at the beginning of his speech the triple-lock mechanisms that exist, first, with the Executive’s legal advice, then with the Presiding Officer’s legal advice, and finally with the Advocate-General’s legal advice, to ensure that we do not get into difficulties with one Parliament attempting to legislate where it has no authority to do so.

I seem to recall that in the very early days of the new Parliament—my noble and learned friend and the noble and learned Lord, Lord Boyd, will correct me if I have this wrong—when my noble and learned friend was Minister of Justice and the noble and learned Lord was the Solicitor-General, we had real difficulty in my department because the law department was not fully staffed. Both noble and learned Lords will remember that we had a backlog of legislation from the days when my noble friend Lord Forsyth rightly said that he was effectively in opposition rather than in government, and we had all the reports of the Scottish Law Commission waiting to be put into effect. We had a flood of very early legislation, none of which was particularly controversial but all of which had to be gone through. I remember that the staff in my office were almost in a state of breakdown because they did not have the capacity to give the necessary legal advice, although it was eventually given.

My noble friend Lord Stephen asked whether the legal advice would be made public. The answer is no, not normally anyway. After all, legal advice is advice; the decision rests with Ministers and with the Presiding Officer. What would happen if there were an FOI request, I have no idea. It never happened in my time so I do not know the answer to that. However, it is important that everybody knows that these locks exist even though, as I say, they provide endless employment for lawyers on a grand scale.

The noble and learned Lord, Lord Boyd, mentioned emergency legislation. I hope noble Lords will forgive me if I mention a final anecdote, but I recall the occasion when we had to rush through a piece of emergency legislation following a decision of the court over the release of somebody from Carstairs Hospital. That occurred one summer. I remember it clearly. Her Majesty was at Balmoral. I was told that the Advocate-General could not possibly take the 28 days that he was normally allowed and that the measure would be rushed through. I was asked where I was going to be located in order to receive the Advocate-General’s advice, sign it off and send a letter to Her Majesty asking her to give Royal Assent. I was at home. I think that it must have been a Saturday as I was having lunch, untypically, with two hereditary Conservative Members of this House. That was not my normal custom but just happened to be the case on that occasion. A courier arrived on a motor bike from Edinburgh. He saw me through the kitchen window and so knocked on that window rather than going to the door. I opened the window, received the document, undid all the pink ribbon and the vellum, looked at the Advocate-General’s response and signed the letter to Her Majesty asking her whether she would be kind enough to give Royal Assent to this very important emergency legislation. I gave the letter back to the man on the motor bike and asked him, “Are you taking this to Balmoral now?”. He replied, “Yes”. I said, “Let me give you a piece of advice. When you get there, don’t knock on her kitchen window”.

[Lord Selkirk of Douglas]

I thank my noble and learned friend very much indeed for accepting the principle of the amendment. I hope I may say, by way of a one-sentence reply to the noble Lord, Lord Steel, that he reminds me of the famous parliamentary statement that lawyers should be elected only with so much circumspection, and therefore it will not happen very often.

Amendment 8 withdrawn.

Scotland Bill

Lord Selkirk of Douglas Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Selkirk of Douglas]

My Lords, it gives me great pleasure to follow the noble Lord, Lord Morgan, who is a very distinguished historian. He is right to remind us of the powerful call, “No representation without taxation”, and as a historian he will remember that the American colonists particularly had the request of “no taxation without representation”. Both requests are very powerful.

It is customary for Peers to mention past interests before speaking, and in my case I have two. While several of us have served in three parliamentary Chambers, only four members of the coalition in this Chamber have been elected to the Scottish Parliament. Three of them, including the Minister taking this Bill, the noble and learned Lord, Lord Wallace of Tankerness, are Liberal Democrats, but for some reason, which I am sure must have involved a great deal of good fortune, I happen to be the only Conservative in this Chamber to have served for eight years in the Scottish Parliament. The other past interest is that I served on the Calman commission, with other members of this House, including the Minister and the noble Earl, Lord Lindsay, from the Conservative Benches. Along with Labour Members and many others, after more than a year of hard work, we produced a report which was unanimous, and the legislation we are considering is based on those conclusions.

In the 1998 devolution referendum, some 74 per cent of voters in Scotland were in favour of establishing a Scottish Parliament, and the Conservative Party, rightly in my view, decided that it would be wrong to act as disgruntled bystanders on the sidelines and instead that it should participate fully in the democratic process, with a view to making the new institution work successfully in the best interests of Scotland and the union. The noble Lord, Lord Sewel, rightly in my view, said that it was right after a number of years to review the devolution Act and to suggest adjustments. The noble Lord, Lord Steel, said that he regarded this as a second stage. If I may say so, in 10 years’ time there may well be another review and another stage, and that would not be unnatural, given the fact that we are discussing the terms of a voluntary partnership.

When the Calman commission reviewed the devolution legislation and received evidence, the responses were overwhelmingly to the effect that the Scottish Parliament had been a success and indeed a majority of those giving evidence believed that it should have more powers. This brings me to the principles that underlie this entire subject, these being accountability and equity. The Secretary of State for Scotland said:

“The Bill is not about transferring power for power’s sake; it is about creating accountability”.—[Official Report, Commons, 21/6/11; col. 282.]

I have to make my own position very clear on this principle of accountability. I am strongly in favour of it. If the Scottish Parliament is given additional tax-raising and borrowing powers, it is a fallacy to believe that these would necessarily be used irresponsibly, for a very simple reason. All Governments wish to be re-elected, and no Scottish Administration will be returned to power if they force up taxation to an intolerable extent or cut essential services far more than is acceptable to the electorate. Finding the most appropriate level between levying taxation and funding public services will always be a matter of balance and judgment. The devolved Parliament should be allowed to reach such conclusions and put them before the electorate.

The Scotland Bill does not make any specific changes to the method by which grant is allocated by Westminster to the devolved Governments, but I would like to refer to the calls by the noble Lord, Lord Barnett, for his long-standing population-based formula to be replaced by one based on need. The noble Lord, Lord Morgan, referred to the importance of this subject. The position of the coalition Government, as I understand it, is that the top priority is to tackle the deficit and to stabilise the public finances. There is of course no consensus on the needs indicators that would have to be chosen if the formula was ever to be replaced. My own position is that until the legislation we are considering is enacted and is operational, the Government should stay their hand over changing the formula. The Bill we are debating will give the Scottish Parliament the new powers and flexibility it would need if Barnett was to be changed with far-reaching subsequent effects on the block grant.

The executive summary of the Calman commission report made this statement:

“Until such time as a proper assessment of relative spending need across the UK is carried out, the Barnett formula should continue to be used as the basis for calculating the proportionately reduced block grant”.

I mentioned that a needs assessment would be contentious. I can only say that if the results of that assessment reduced the Scottish block grant significantly this would give rise to a third principle. There should be the possibility of substitution if there is to be reduction. In other words, if several billions of pounds were to be chopped off the block grant overnight, the Scottish Parliament would need to have the necessary flexibility to be able to find the most appropriate balance between funding services and levying taxation. This Bill will help to meet that point and makes the Parliament more accountable for the level of a substantial portion of its tax and spending. Indeed, I would contend that if there were to be a reduction in the Scottish block grant without the possibility of substitution, which this Bill will allow, there would be an adverse reaction and friction in Scotland, which could inflict lasting damage on the union.

The question that those who oppose a measure of financial autonomy for the Scottish Parliament have to answer is, “Why are the Scottish people unfit to be allowed a measure of financial responsibility?” I believe that their duly elected representatives should be allowed more discretion to frame their own fiscal policy. They should be allowed to raise more of their own funding as well as to engage in expenditure. While the centuries-old ties that bind the Scots to their more numerous southern neighbours may have been loosened somewhat in recent years, it must be emphasised that the Scots people have shown no appetite for breaking them completely, but they have consistently expressed a desire for their Parliament to have more power.

One of the great benefits of the union is that it replaced centuries of warfare across the border with a sustained era of peaceful development, notwithstanding the odd Jacobite rebellion. In the case of my own family, I am descended from both the Douglases and the Percys, who used to kill each other in very considerable numbers. It always struck me that this was not the best way to settle disputes and, fortunately, the Act of Union 1707 consigned such hostilities to the dim and distant past. In fact, with my father being a Douglas and my mother a Percy, it could be argued that I am a product of the union.

I intend when the time comes to commend to Scottish voters the case for the continuity of the United Kingdom. I take absolutely the point of the noble Lord, Lord Steel, that there must be a straight question on whether or not the people of Scotland want independence, and not a slanted question. I would wish to campaign in the strongest and most positive terms when the planned referendum is held. I do not believe that passionate support for the union is in any way incompatible with backing for giving the Scottish Parliament increased powers, especially over financial matters.

In conclusion, I would like to commend to the House the splendid words of Scotland’s national poet, Robert Burns, when he wrote his famous poem, The Dumfries Volunteers. His words were as follows:

“Be Britain still to Britain true,

Amang ourselves united;

For never but by British hands

Maun British wrangs be righted”.

Just to reassure the House, Robert Burns was by no means a dangerous revolutionary but was indeed one who understood the importance of fiscal responsibility. Just in case anyone may wonder, he was in fact by profession a tax collector and exciseman, who believed in the rule of law.

This legislation delivers an important coalition commitment. It will increase the responsibility and accountability of Scottish legislators and allow the devolved Parliament to come of age.