Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Stephen Excerpts

Wednesday 10th January 2018 Lords Chamber

These things all matter. The British Government as a whole—not just that concerned with Scotland—have to take these important matters seriously. If the result of this wish by the Scottish Government to fully integrate the officers currently involved in policing Scotland’s transport system goes ahead and it will have major consequences for the British Transport Police and its effective policing mission, or if other elements of government policy impact on it, we need to know. We certainly need to know before proceeding in the way the Government wish us to proceed tonight.

[Lord Stephen (LD)]

My Lords, as a former Transport Minister in Scotland who worked closely with the Labour Party to ensure that there was greater devolution of transport powers, particularly with regard to the railways in Scotland, of course I strongly support the principles of devolution that the Smith commission supported and which this Parliament legislated on. I also fully understand the position as explained by my noble and learned friend Lord Wallace of Tankerness, and as will no doubt be explained by the Minister again in his summing up. However, albeit that we understand the legislative position and there seems unlikely to be a vote this evening, we are very deeply concerned about what is proposed.

First, on the situation with Police Scotland, I was always opposed to the creation of a single police force in Scotland, and it has turned out to be a shambles and a failure. The noble Lord, Lord Forsyth, spoke about that eloquently. We have a situation where this decision by the Scottish Government and the Scottish Parliament to try to get rid of the British Transport Police in Scotland has clearly been taken for dogmatic, doctrinaire, nationalistic reasons. We have heard from speaker after speaker that there are deep concerns about operational policing, the possible impact on the train operating companies, potentially higher fares, and the minimum police numbers—the floor that the noble Lord, Lord Harris, correctly identified. There is much concern about this wrong policy. Surely, whatever the legislative or legal position, in these circumstances we can call out the SNP Government and urge the Minister strongly this evening to do something about this situation. If strong action is not taken now, the UK dimension of the institution that is the British Transport Police and the co-operation and policies that we have learned about this evening to support anti-terrorist measures will be scrapped by a Scottish Government who put removing the word “British” first, and the quality of the service and of the work being done by that institution will be undermined and pushed to the back.

I am sure that we could point to other areas where we see this sort of erosion and wrong policy. There is a long list of UK institutions of real excellence in this country—I think of the education system, the research councils and the health service—where this sort of approach would be the wrong one to take, but we could be seeing the thin end of the wedge here. There are real concerns about pushing the boundaries in other policy areas. This is not about devolution; it is about dogma and nationalism. Therefore, this evening we should be really concerned about what is happening here, and we must urge the Minister, in his summing up, to give the sort of reassurance that the noble Lord, Lord Foulkes, is looking for. This issue is really important and we need to do something about it.

[Baroness Adams of Craigielea]

My Lords, I shall not go over all the things that we have already gone through. I have grave concerns about this issue—I had concerns about a single police force in Scotland—but I do not think that this is how the Government in Scotland look at it. We have seen this approach from this Government from the beginning. They suck powers up from local government and they suck powers down from the UK. This is all about getting independence by the back door. The noble Lord is absolutely right when he says that it is the thin edge of the wedge. Every time we pass legislation in this House with consequences for Edinburgh, they will jump on it and suck it up. It really is incumbent on the Minister to see that they do not cut the borders between England and Scotland and between Scotland and Northern Ireland, creating a Scotland-only enclave and taking all the powers to themselves.

Scottish Independence Referendum

Lord Stephen Excerpts

Tuesday 14th March 2017 Lords Chamber

[Lord Dunlop]

I know that the noble Lord’s reputation goes before him, so I thank him for that offer. I strongly agree with what he said. We must respect the result of the independence referendum that took place in 2014. As Alex Salmond and Nicola Sturgeon said, it was a once-in-a-generation vote. Both sides signed the Edinburgh agreement, which committed to respect that result. Only two-and-a-half years after that vote, which was won by more than 10 points—a result that was fair, legal and decisive—the First Minister is now calling for another vote. All the evidence is quite clear that people in Scotland overwhelmingly do not want another divisive, disruptive referendum. They know the damage that it would do to the Scottish economy and Scottish jobs, taking the eye off the ball of the domestic agenda: schools, hospitals and getting the economy going again. That is what we should focus on.

[Lord Stephen (LD)]

My Lords, does the Minister agree that there is no justification for a second independence referendum and that the best way for that to be made clear is for the UK Government to make a simple, clear statement to the Scottish Parliament and the Scottish people on that issue? It is not what people in Scotland want, not now nor after Brexit. The SNP should stand by the Edinburgh agreement and stick to their word—that this was once in a generation, not a “neverendum” to be repeated and repeated. What we on these Benches and the people of Scotland want is a Scottish Government focusing on better outcomes for the people of Scotland on health and education, not what is best for the SNP and its obsession with independence.

[Lord Dunlop]

The UK Government and the Prime Minister could not be clearer: we do not think there that should be a further referendum on independence, for all the reasons that the noble Lord and others have given. Even at this late stage, the Scottish Government can and should take that referendum off the table.

Scotland Bill

Lord Stephen Excerpts

Monday 21st March 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, when I spoke on this matter on Report, having tabled an amendment which dealt with the issue in slightly different terms from those proposed by Amendments 1 and 2 on the Marshalled List, I said that I would come back to the issue at Third Reading. But, on consideration of the various rules and practices, I decided not to renew my amendment in recognition of the fact that it would not be proper to bring it forward in those terms.

I am grateful to the Minister for the statement he has made, which goes a little way to addressing the problem. But I feel very strongly that this is an example of a missed opportunity, which could have been taken to clarify exactly what the Sewel convention is, to remove some of the problems to which the noble and learned Lord, Lord Wallace of Tankerness, referred, and to deal with the complications raised by the use of the word “normally”.

As I stressed on Report, my concern was to preserve the sovereignty of Parliament, which the Minister mentioned in his brief address. The problem with the method he has chosen is that it opens up the possibility of a challenge to the sovereignty of Parliament, which is the greatest danger of all, because it puts at risk the enforceability of legislation where the spectre, if I should put it this way, of the Sewel convention may be hanging over it. I understand that the Minister has gone as far as he believes he can—but, like others, I regret that he was not able to go further.

[Lord Stephen (LD)]

My Lords, it seems that the Government had an important decision to make on this issue. Did they want the Sewel convention, or the legislative consent convention as it has now become known, at least in the Scottish Parliament, to continue as a convention or did they want to convert it into statute? In truth, the answer is that they are making a mess of that decision. In a sense they are trying to do both, and in doing so they are creating bad legislation. They are continuing the convention—we have been told that and I certainly hope that that is the case. I hope that all legs and all elements of the convention will continue to be operated between the Scottish Parliament and the UK Parliament, the Scottish Government and the UK Government. But the Government have decided to take one rather limited and narrow—although, I accept, important—part of the convention into statute, and to do so in as limited and as loosely worded a way as possible, with words such as “normally” and with new expressions such as “devolved matters” that have not previously been used or defined in statute.

I now believe that the use of these words and the introduction of this vagueness has been quite deliberate on the part of the Government, to make it as ill-defined and declaratory as they possibly can. Why are they doing that? They are doing it to technically comply with the Smith commission’s recommendations, but this is not in the spirit of the Smith commission and it is not being done in a clear, sensible or coherent way. In summary, it is not a good way to legislate. If the Government’s excuse is that this is what the Smith commission told them to do, frankly, that is not a good enough excuse, because they can depart from the Smith commission—they have done so on the issue of abortion, for example—and the Smith commission was not perfect in every respect. On this issue it referred to only part of the Sewel convention—a mistake that I think the commission would readily admit to.

Scotland Bill

Lord Stephen Excerpts

Monday 29th February 2016 Lords Chamber

[Lord Stephen (LD)]

My Lords, this is all complex, although perhaps not as overwhelmingly complex as the fiscal framework itself. However, I am very pleased that the Government have brought forward amendments to respond to the views of the Delegated Powers and Regulatory Reform Committee. At this late hour, I do not intend going into all the detail, but it is interesting to note that, instead of—as the noble and learned Lord, Lord Hope, my noble and learned friend Lord Wallace of Tankerness and I proposed—deleting words and cutting back on these very wide and open powers to Ministers to change primary and secondary legislation here, in Northern Ireland and in other parts of the UK, the Government have introduced extra words to try to restrict those very wide powers. The restrictions are welcome; I would still have preferred such wide powers for Ministers—given inadvertently, I think—to be removed.

Doubtless, however, due to the political imperative, at this hour we will all accept the Government’s approach and amendments. I close by thanking the noble and learned Lord, Lord Hope, for raising the issue and the Law Society of Scotland for the hard work that it has done on the detailed wording that it provided to us in presenting our amendments. I hope that, through constructive opposition to the Government, we have a set of measures brought forward by them that respond to the correct concerns voiced about the nature of the Bill as drafted. I look forward to the Minister’s explanation, so that we can make sure that all the points of concern have been covered.

[Lord Forsyth of Drumlean]

My Lords, I wanted to delete this clause entirely in Committee, and was persuaded that the approach being taken by the noble and learned Lord, Lord Hope, was perhaps more forensic and justified. I agree with the noble Lord, Lord Stephen, that half a loaf is better than no loaf. This is a very useful example, both in the original draft and the slightly grudging response from the Government, which we can discuss when we come to debate the Strathclyde review and the Government’s attitude towards the use of secondary legislation.

Our previous debate, when we spent 10 minutes arguing whether the House of Commons ought to be able to discuss the fiscal framework, to my mind underlined an Executive who are increasingly treating Parliament as the ornamental part of the constitution. That is very regrettable.

I thank my noble friend for at least moving as far as he has, but I would not want him to think that the Bill as it stands is in any way acceptable. I hope that on a future occasion we will have more opportunity to discuss the increasing use of secondary legislation. If it is not a Henry VIII clause, perhaps it is now a Queen Anne clause, in deference to the noble Lord, Lord McAvoy, who thinks that this is putting the Scottish Parliament in the same position as it was in 1707.

Scotland’s Fiscal Framework

Lord Stephen Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for repeating the Statement on the fiscal framework and for the pivotal role that he has played in bringing about yesterday’s arrangement. First, we welcome unequivocally the news that an agreement has been reached on the fiscal framework. Thanks should rightly be extended to both Governments, the Deputy First Minister, the Chief Secretary to the Treasury and the Secretary of State for Scotland, as well as for a late intervention by the Chancellor. We congratulate and thank them all on working so hard to secure an arrangement, along with the officials of both Governments.

Yesterday’s agreement marks the removal of the final obstacle to the transfer of significant and substantial new powers to Scotland. As the Minister has already indicated, the noble Lord, Lord Smith, has said that the agreement,

“sees the recommendations of the Smith Commission delivered in full”.

In his Statement, the Secretary of State committed himself to publishing details of the agreement by the end of the week. Given that your Lordships’ House will be debating the fiscal and welfare elements of the Scotland Bill on Monday, we very much welcome this commitment. On that point, can the Minister briefly say whether he has an update on whether Committee rules will be applied for the final day on Report, as was suggested in Committee on Monday?

My honourable friend the shadow Secretary of State has, from the outset, called for greater transparency on the way these deals are negotiated. What this process highlights is that future intergovernmental relationships must be improved to make these powers work for Scotland. We all know that the major stumbling block was the indexation method used for the block grant adjustment. Under the compromise reached, there will be a five-year transitional period, which will cover the full term of a Scottish Parliament. Towards the end of this period, an independent review and recommendation will be published that will form the basis of a more permanent solution. We all hope and demand that agreement is reached. We would also welcome any further clarity that the Minister can provide on the transitional period. The Secretary of State has said that the new income tax powers will be available by April 2017, but the Deputy First Minister seems to have cast some doubt on that.

In the remainder of my reply, I will focus on the review. I welcome the fact that it will be fully independent, but can the Minister answer some very specific questions at this stage? How will the review body be chosen? Can he confirm that it will be done in a spirit of consensus with the full agreement of both Governments? What criteria will be used to determine its independence? This independent review is a guarantor for the United Kingdom and Scotland of the fairness of the final agreement and should assuage any doubts or problems about accepting it.

I close by saying once again how welcome this agreement is, and I hope that Monday will give us an opportunity to look at the issues in more detail. The priority for us now is to facilitate the passage of the Scotland Bill. It will be a historic date, and I believe it is now up to your Lordships’ House to deliver the Scotland Bill without delay.

[Lord Stephen (LD)]

My Lords, I thank the Minister for his Statement. It is certainly very good news that an agreement has been reached between the UK Government and Scottish Government on the fiscal framework. This agreement should allow the Scotland Bill to reach the statute book ahead of the Scottish Parliament elections and will introduce a very powerful range of new policy-making and tax powers to Scotland, which have been long supported by the Liberal Democrats on the journey to home rule. All of this delivers on the vow made by the UK party leaders and implements in full the recommendations of the all-party Smith commission.

However, I am sure there will be concern from all sides of this Chamber that we have not yet seen the full, detailed fiscal framework. Some of the arguments from the negotiations—which were of course all conducted very firmly behind closed doors, underneath the veil of secrecy—are still being repeated, most notably by the Scottish First Minister and others on her side of the argument. Nicola Sturgeon claims to have been fighting to defend the Scottish Government from cuts over a five-year period—first, she said of £10 billion, then £7 billion, then £3 billion and then, finally, £2.5 billion. She now claims that this threat—we will never know how real and present a threat it ever was—no longer exists.

What is certain is that under an independent Scotland, or if there was full fiscal autonomy, the cuts that Scotland would now be facing would be £10 billion—not over a five-year period, but each and every year. There would be no safety net or protection from the UK Government under independence. That would mean a cut over five years not of £10 billion, £7 billion, £3 billion or £2.5 billion, but of £50 billion under independence or full fiscal autonomy. What is also certain is that the Scottish Government have accepted the Treasury model for calculating the grant adjustment for each of the first five years.

It is worth quoting Brian Taylor, the BBC’s political editor in Scotland. He asks “who has given ground” in the negotiations and states:

“The Scottish government has had to compromise. They have gained less than they wanted in terms of cash to assist the implementation of the new powers, including welfare powers. They have been obliged to concede that there will be independent scrutiny of Scotland’s fiscal position in the run up to the proposed review which will take place in six years time ... the Scottish government has accepted that it will be, technically, the Treasury model which is used for operating the fiscal framework … Already Liberal Democrats are saying that is an error by Scottish ministers - that it will be difficult to escape the Treasury model, even the reformed version, once it is in place. That it might, in short, prove costly in the longer term”.

So it is clear that this is not the beginning of the end, nor even the end of the beginning. Rather, it all remains to be fought once again in 2021. It is inconceivable that the SNP will not use the opportunity for further grievance and battling with the UK Government.

The political editor of the Courier wrote this morning:

“One dampener to put on this otherwise joyous occasion is the question of what happens in five years when we revisit the terms of the deal? Will we be locked in some kind of 2016 battle re-enactment? Will it be even bloodier if one side decides it doesn’t like the now-agreed system? It’s possible the battles have just begun”.

I trust that the Minister agrees that we should now grasp the opportunity to establish a federal fiscal commission to look independently and objectively at the issues of financing not only Scotland but other parts of the United Kingdom in a fair and well-informed way. We do not have to wait until 2021.

The spin of one Government against the other in these negotiations has not been helpful, and it will, I predict, be repeated in 2021. However, the Minister is right: the big issue is now delivering the new powers and for Scotland to make proper use of them.

In conclusion, and crucial to this Chamber, I hope that the Minister can give us a cast-iron assurance that the detail of the fiscal framework will be published in time for proper scrutiny ahead of Report next Monday. I suspect that he will readily give us such a reassurance, as he is acutely aware of the strength of feeling on this issue on all sides of the Chamber. He has also been very directly involved in the negotiations and has put a considerable amount of his own acumen and effort into reaching resolution. He has also put a great deal of effort into dealing with the representations and frustrations of the Members of this House, which have also been considerable. For all of that, he should be considerably thanked.

Scotland Bill

Lord Stephen Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord McCluskey]

My Lords, I need not repeat the arguments that the noble Lord, Lord Cormack, has put forward again so clearly. We need say nothing more about “normally” except that we were anxious to help to improve the Bill. This was not anti the Government or anti the Scottish Administration.

My second point relates to Amendment 12 in this group, which is to do with the question of justiciability. For the reasons that have been advanced at some length, so I need not repeat them, the noble and learned Lord, Lord Hope, and I are agreed that this word is justiciable. It would be very foolish of the Minister to reject the advice of a man as distinguished in the law as the noble and learned Lord. The word “normally” is bound to appear before a court. If the UK Government decide to legislate on a matter that is devolved and say, “This is not a normal situation”, and some person, whether in the Scottish Government or affected by the legislation, says, “No, it is not”, and it goes to court, the court cannot say, “We’re not going to resolve this matter”—it must answer the question. So to say that it is justiciable is exactly right, and it is wrong for the Minister to ignore that. The Minister kindly suggested that he and I should meet, and we did, but I am afraid that we simply agreed to differ on the issue of justiciability.

I should mention one other point that does not arise out of these two amendments precisely, which is that this is to do with the Sewel convention. I hope that the noble Lord, Lord Norton of Louth, will permit me to quote what he said in Committee on 8 December. In response to the argument that the Smith commission stated that:

“The Sewel Convention will be put on a statutory footing”,

he said, referring to the noble and learned Lord speaking from the Front Bench:

“Surely on his own argument the Government will have to withdraw Clause 2, not only on the grounds of what constitutes a statutory footing but because it embodies the words of Lord Sewel, which he spoke when the Scotland Bill was before Parliament, and not the convention as understood at the time the commission produced its report”.

The noble and learned Lord rejected that, saying:

“I do not accept that, because it appears that what is understood by the Sewel convention is the expression of that convention by Lord Sewel during the passage of the Scotland Act 1998 through Parliament”.—[Official Report, 8/12/15; cols. 1506-07.]

I must confess that it astonished me to hear that. Can the Minister make it clear whether the Government stick by that statement at col. 1507, which was repeated in response to the noble Duke, the Duke of Montrose? In due course I hope to move Amendment 12.

[Lord Stephen (LD)]

My Lords, I make it clear at the outset that we support the wording provided in his amendment by the noble and learned Lord, Lord Hope. Indeed, we agree very much with the noble Lord, Lord Cormack, that the word “normally” seems at best unhelpful in legislation.

Our first two amendments, Amendments 9 and 10, provide for the consent of the Scottish Parliament to be required when UK legislation makes or attempts to make any alteration to the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government—Scottish Ministers. The amendments would ensure that the current convention is fully reflected in the way it has been understood and applied in practice.

The part of the convention currently covered by Clause 2 is effectively only half of the convention. It is to apply when UK legislation makes provision for issues which are within the legislative of the Scottish Parliament. As has been stated, Clause 2 reflects almost exactly the words used by Lord Sewel in the House of Lords during the passage of the Scotland Act on 21 July 1998, when he said that,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/1998; col. 791.]

These comments in this Chamber effectively recommended the establishment of a convention but it has operated more widely than he indicated or anticipated. We should not blindly follow his words in 1998 rather than the convention as it works now. The constitutional practice of putting forward a legislative consent Motion where the legislative competence is being affected, amended or altered was applied, for example, to the Scotland Act 2012, and there are good constitutional reasons for both elements of the convention to be safeguarded. That should be the correct constitutional approach to the Scottish Parliament. Legislation which without consent reduced the scope of the Scottish Parliament’s legislative competence, would be just as controversial, and perhaps more so, than UK legislation which encroached on matters within its competence.

How long has the convention operated in this way? Since 1999, the convention has been understood to require the consent of the Scottish Parliament when UK legislation will alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers. This was exactly how it was expressed in the memorandum of understanding that was agreed between the UK Government and Scottish Ministers back in 1999. It is also reflected in Devolution Guidance Note 10, which was issued by the Department of Constitutional Affairs back in 1999 and gives information as to how the UK Government operate the convention in practice—and that is how it has been operated.

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[Lord Davidson of Glen Clova]

I feel that genies should not come out of their bottles; they should probably stay in their lamps. However, the point here is that, when one looks at this clause, no matter how one seeks to alter it, there is the potential—such are the fertile minds of our legal colleagues—to find one way or another in which any issue can be brought into court. My noble and learned friend the Advocate-General for Scotland, his predecessor and even his predecessor have frequently had to deal with issues by saying at no stage was this ever intended to go before a court, and yet we found that it did come before the courts, and in those areas the court had to make a decision whether it was a matter that was before the court or not. This is just the way our constitutional arrangements work. That has stood the test of time and it enables the finest minds of the Supreme Court to consider these types of issue. At this point, I will perhaps draw to a close, but if—

[Lord Stephen]

The noble and learned Lord has made many points but I think he would accept that there is very wide cross-party support for the amendments being submitted today on this matter. After the 18 minutes for which he has been on his feet, I think none of us is any the wiser as to what the political imperative to which he refers is.

[Lord Davidson of Glen Clova]

I consider that it has never been the role of the loyal Opposition to increase the wisdom of Members of this House but we often attempt to leave them better informed. If I have wearied noble Lords over these 18 minutes, I apologise, but I offer this one little candle of comfort—I will weary them no more.

--- Later in debate ---

There is no difficulty in understanding what the United Kingdom Government, the Scottish Ministers and everyone else understood was meant by the Sewel convention, not only in October 2013 but when the Smith commission report was issued in 2015. That was the scope of the convention that the Smith commission recommended should be put on a statutory footing—not Civil Service working notes, not DGN 10 and not further requirements.

[Lord Stephen]

Does the Minister accept that since 1999 the practice has been that if there is a proposal to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers, the convention is that a Motion should go before the Scottish Parliament in relation to that matter? In other words, the convention on these separate issues has been that there would be a decision of the Scottish Parliament on that issue.

[Lord Keen of Elie]

I cannot accept that because of the language employed. It was not the convention that dictated that; it was a practice that grew up as a consequence of the convention having been entered into. It reflected, for example, working note DGN 10. That is why I say there was a clear understanding by the parties not only in 1999 but in October 2013 of what was meant strictly by the Sewel convention. I also commend to the noble Lord the heading to paragraph 22 of the Smith commission report, which was also agreed to by the parties to the Smith commission. It makes it abundantly clear what the parties understood was meant in this context by the Sewel convention.

I quite appreciate that over the years practice has developed and no doubt practice will continue to develop, which is one reason you do not want to freeze practice in statutory form. What you want to express in statutory form is the strict requirement of the Sewel convention and its scope. It is important to remember that by doing that we preserve not only the convention as it is understood and has been understood but the sovereignty of this Parliament. For this Parliament is sovereign and can legislate for devolved matters, just as the Scottish Parliament can legislate for devolved matters.

The matter that Lord Sewel was addressing when setting out the principle that this Parliament would not normally legislate with regard to devolved maters without the consent of the Scottish Parliament was this: to make it clear that, despite Parliament’s sovereignty, the devolved legislature would be left to get on with the business of legislating in devolved areas. No one wanted the prospect of legislative ping-pong between the two Parliaments. That is also set out—as I say, quite clearly—in the memorandum of understanding, as it has been revised on seven occasions and agreed to by the United Kingdom Government and the Scottish Ministers.

The question of the words “not normally” was raised. The noble and learned Lord, Lord McCluskey, among others, pointed out that the word would be justiciable. Of course, all the words of a statute are justiciable in the sense that you can go to a court and ask the court what it believes they mean. But it is not the word that is not justiciable, it is the issue. The question of whether the United Kingdom Parliament can legislate in devolved areas is not justiciable. It is for the United Kingdom Parliament to decide whether on some occasion it will do what it normally, usually or generally does, or will not do so, for it is a sovereign and supreme Parliament. That underlines the importance of the words “not normally” and to remove them from this clause would be to impinge on the sovereignty of this Parliament in a most unprecedented and extraordinary manner.

Scotland Bill

Lord Stephen Excerpts

Wednesday 24th February 2016 Lords Chamber

Moved by

[Lord Stephen]

29: Clause 35, page 37, leave out lines 17 to 33 and insert—
“Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, including appointments to non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions. The provision falling within this exception includes provision that reproduces or applies an enactment made in or under the Equality Act 2010, with or without modification, without affecting the enactment as it applies for the purposes of that Act. It does not include any modification of that Act, or of any subordinate legislation made under it, except—
(a) provision that supplements or is otherwise additional to provision made by that Act that enhances, but does not diminish, the protection and promotion of equal opportunities afforded by the provision made by that Act;(b) in particular, provision imposing a requirement to take action that the Act does not prohibit.”

[Lord Stephen (LD)]

My Lords, I spoke to Clause 35 in Committee. Protection from discrimination and the promotion of equality of opportunity are fundamental markers of any fair and decent society. As Clause 35 sets out how these issues will be dealt with in the context of the Scotland Bill, it is essential that the meaning of the clause is clear. Despite the Minister’s assurances in Committee, the Equality and Human Rights Commission and other key stakeholders remain concerned that this is still not the case. I am therefore moving Amendment 29, which is intended to make absolutely clear the extent of the Scottish Parliament’s legislative competence in relation to changes to the Equality Act 2010. I very much welcome the support of the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Davidson, and look forward to their support on this amendment in the Division Lobby shortly. We shall see.

As drafted, Clause 35 prohibits modification of the Equality Act 2010 but allows some limited addition. Whether a change to the Act is a modification or an addition will be difficult to assess. This lack of clarity will lead to confusion and potential legal challenge. However, Amendment 29 would make it clear that the important protections in the Equality Act will be maintained and can be enhanced. It would clarify that limited modification is permitted by the Scottish Parliament only where it is additional to and an enhancement of the present legislation. It would therefore become clear that the Scottish Parliament had powers to increase protection from discrimination, harassment and victimisation in the functions of Scottish public bodies by, for example, adding new protected characteristics prohibiting dual or multiple discrimination or enhancing remedies. In doing so, the amendment would ensure that the fundamental right to be free from discrimination and harassment is protected across Great Britain, but it also enables the Scottish Parliament to provide greater protections in relation to the Scottish functions of devolved public services. It would provide clarity that this could be done and ensure that the Smith commission commitment to devolve,

“the introduction of gender quotas in respect of Scottish public bodies”,

is delivered, while providing clarity that any such provision made by the Scottish Parliament could not go beyond the positive action permitted by EU law and reflected in the Equality Act 2010. In supporting greater efforts to ensure that women have fair representation on public boards, we want to ensure that this is not achieved through unlawfully discriminating against men or at the expense of other under-represented groups such as those from ethnic minorities and the disabled.

Amendment 33 relates specifically to diversity on public boards. As drafted, Clause 35 would limit the ability of the Scottish Parliament to encourage diversity on public boards in relation to any protected characteristics not within the present meaning of “protected characteristic” in the Equality Act 2010. This means that the Scottish Parliament would not be able to legislate to encourage diversity on public boards in respect of any new protected characteristics for which it might otherwise introduce protection. It would, for example, restrict moves to address under-representation on public boards of people who are intersex, should the Scottish Parliament decide to introduce this as a new protected characteristic.

Amendment 32 relates to the public sector equality duty, which is a potentially powerful tool contained in the Equality Act 2010. It requires public authorities and those exercising public functions to give proper consideration to proactively eliminating discrimination and advancing equality of opportunity. It is known as the general duty. The amendment, by devolving legislative competence for the general PSED, would enable the Scottish Parliament to impose stronger requirements on Scottish public bodies to eliminate discrimination, advance equality of opportunity and foster good relations between different groups. Scottish Ministers already have legislative competence in respect of the specific equality duties, which are duties in secondary legislation that tell public authorities how to implement the general duty. We have already seen how the stronger specific duties in Scotland under the existing devolved power have driven more transparency in relation, for example, to the gender pay gap in Scottish public authorities. Devolving legislative competence for the general equality duty would give the Scottish Parliament greater freedom to require its public services to do even more.

Amendments 31 and 34 relate to equality in political representation and therefore will be of great interest to all Members of the Committee. They would enable the Scottish Parliament to permit political parties to take stronger action in their arrangements for selecting candidates in order to reduce the under-representation of people with certain protected characteristics in the Scottish Parliament and Scottish local government, extend the period in which all-women candidate shortlists are permitted, and require political parties to publish diversity information in relation to candidate selection. I note that the Minister’s response in Committee referred to the Smith commission’s position that the Scottish Parliament will have no powers over the regulation of political parties. However, I argue that the provisions that could and should be devolved under these amendments relate to equality of opportunity for election candidates, not to issues of political party regulation.

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Turning finally to the public sector equality duty, the Smith commission did not call for further devolution of the duty and indeed was specific that the Equality Act 2010 should remain reserved. Scottish Ministers already have wide-ranging devolved powers under the PSED, which enable them, through the setting of specific duties for enabling the better performance of their obligations under the general equality duty, to require Scottish public authorities to update and publish equality statements, and report on their performance in relation to equalities, among other requirements.

[Lord Stephen]

I very much welcome the information that the Minister has had consultation with the Scottish Government on these issues but I wonder what consultation and discussion have taken place with the Equality and Human Rights Commission on all these matters.

[Lord Dunlop]

The Government consult the Equality and Human Rights Commission on an ongoing basis and I am happy to write to the noble Lord to address the specific point about what consultation there has been on this.

Scottish Ministers may specify Scottish public authorities which are to be subject to the PSED; for example, under their devolved powers in relation to the PSED they can require gender pay gap information to be published by Scottish public authorities, something that the Government are now also planning to implement for larger private employers across Great Britain. To devolve the duty risks the creation of additional burdens for private and voluntary sector bodies that provide some public services, through excessive contractual requirements imposed by Scottish public bodies on their suppliers; for example, requiring Scottish public bodies to ensure that private sector providers report on their gender pay gaps or carry out gender pay audits as a contractual condition would be burdensome, especially to smaller employers. It would also alter the careful balance we have struck between delivering a package of measures to implement the Smith commission and maintaining a coherent, GB-wide framework for the duty as a whole. I therefore urge noble Lords to withdraw their amendments.

[Lord Stephen]

My Lords, I thank the Minister for his response and the Labour Party for supporting these amendments. I welcome the support of the noble Lord, Lord McFall, alongside his colleagues, the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Davidson. The important point here is that these are good, detailed and well-argued amendments that were submitted with the advice and support of the Equality and Human Rights Commission. They were notified in Committee and it seems disappointing that there has not been consultation between the Government and the commission, which is the body given statutory responsibility for these matters. The idea here is not to be controversial or difficult but to be entirely constructive on matters of detail. These good amendments are very much in keeping with the spirit of the Smith commission. I am not minded to divide the House on the matter this evening. I do not think that much divides us and what the Minister said has been extremely helpful. However, on balance, the Equality and Human Rights Commission has indicated that there was a need for greater clarity in these areas. These amendments would have strengthened the Bill and it is disappointing that they will, it seems, not now appear on its face. I beg leave to withdraw Amendment 29.

[The Deputy Speaker (Lord Geddes) (Con)]

My Lords, this is a slight technicality but we are in fact discussing Amendment 30 and not Amendment 29. The noble Lord, Lord McFall, may wish to press or withdraw his amendment.

Scotland Bill

Lord Stephen Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Elton]

My Lords, we should be coming to a conclusion, so I do not wish to detain your Lordships for long. However, I remark that my noble friend Lord Selkirk, in a wonderfully elegant and skilful speech, invited your Lordships, not unreasonably, to delay the Bill. What gives my noble friend Lord Forsyth’s amendment weight and reason is the joint letter from the two chairmen of the two senior committees of this House, which has scarcely been addressed in this debate at all. They have both said, after considerable deliberation, that it would not be proper or wise for us to proceed until we have the fiscal framework before us. We therefore have to find some means of doing that—if possible keeping within the timetable, which is an unreasonable one. It was not unreasonable to start with but it has become so because of the extraordinary foot-dragging of the seeking of the agreement itself. That is not our fault.

It is also important to remember that we are here for a purpose. It is the reasonable purpose of seeing that the legislation we pass is fit for purpose and does not handicap unnecessarily or unfairly any part of the United Kingdom. From what I have heard this afternoon I understand that that is something we cannot fairly do until we have the framework.

What other devices are there to achieve this compromise of timing? I am sure it is already in my noble friend the Chief Whip’s mind but there is, of course, the device of recommitting clauses that have been taken in Committee at a later stage when circumstances change. I remind the noble and learned Lord, Lord Hope—I hope I have got my procedure right—that the clause stand part procedure is in Committee and therefore there are no opportunities to suddenly excise a clause that has already been voted in. It is asking to decide the same issue twice in opposite senses. Therefore the idea of a recommital which gets round that decision seems a reasonable one. I put that to your Lordships as well as my noble friend Lord Forsyth’s plan B, as it were, which also has its merits, but I think they are less good because there would be less chance to do anything with this Bill once it is on the statute book.

[Lord Stephen (LD)]

My Lords, all of this emphasises the need for more open government. We have very limited information on the fiscal framework negotiations and neither Government have won plaudits for transparency and openness. From the UK Government there has been little more than, “We met. Good progress was made,” and possibly, occasionally, an overview of the agenda. I quote from the meeting held as recently as last Friday. This is supposed to be us coming to the end of the negotiations:

“MINISTERIAL MEETING ON SCOTTISH GOVERNMENT’S FISCAL FRAMEWORK – 19 FEBRUARY 2016”—

the title takes up more space than the minute of the meeting, which states:

“The Rt Hon Greg Hands MP, Chief Secretary to the Treasury and John Swinney, Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy met in London today. They had a useful further discussion on Scotland’s fiscal framework. The discussion made progress in a number of areas. The two governments have not yet been able to reach an overall agreement”.

This is the sort of information that we as parliamentarians are being asked to rely on. The UK Government appear to believe that this is the best way to conduct these intergovernmental negotiations. I suspect that a major reason for this is the Treasury, which has a long track record of secrecy in all matters and doubtless feels that this has served its purposes well over the decades. The annual Budget negotiations with spending departments is probably the best example of this. By default we accept that the Treasury tends to be secretive, but I do not believe that this makes for good government. The more open we can be, the better. People should be encouraged to get more involved in politics and helped to understand government and the issues facing Governments. Too much is still done behind closed doors. This is a very big issue for the future of Scotland and the United Kingdom. So far everything has been done behind closed doors.

There is another dimension to this beyond the issue of secrecy. At both UK and Scottish levels we have been asked to, “Trust us, we’re the Government”. Governments, however, can be trusted only so far and Governments are ultimately answerable to the people and to the parliaments. Their powers are not, and must not be, unfettered. There can be real advantages to openness, particularly when they are dealing with, and are answerable to, the parliaments.

However much we may wish to support the passage of this Bill, there will come a point when we have to say that we need to see the fiscal framework, at least in its final draft form. This week we are reaching that final point with the Bill. We are supposed to move on from the Committee stage today to Report on Wednesday, but the negotiations between the Scottish and UK Governments are still to be concluded. Indeed, it is widely reported in the media that there is still a dispute. As parliamentarians in this Chamber, we have not been told the detail of this dispute but it is certainly all about the detail of the formula to be used, or indeed which formula is to be used, to calculate the funds to come to Scotland once the new tax-raising powers have been introduced. Surely there is bitter irony in negotiating this with an SNP Government, because with independence there is no formula and no safety net. The situation as we all understand it is that all that is swept aside: goodbye Barnett, goodbye population weighting and goodbye all forms of protection.

It seems inconceivable that we can proceed to complete Parliament’s consideration of the Bill without much greater openness and clarity on this issue and on the fiscal framework and all its clauses in general. Ideally, the terms of a final agreement need to be revealed to us. However, failing that and accepting that the UK Government cannot force a final agreement, we need to see the full draft of the fiscal framework identifying the area, or areas, of dispute and explaining the different proposals of the two Governments. Without that, the progress of the Bill is in serious danger of grinding to a halt, so I am very sympathetic to the view of the noble Lord, Lord Forsyth.

My noble and learned friend Lord Wallace of Tankerness has suggested, for example, that we might be able to pass the Bill subject to a commencement order, which would require a legislative consent Motion from the Scottish Parliament. The noble Lord, Lord Forsyth, has suggested another possible approach today in the event that we cannot reach a final, agreed position on the fiscal framework. All these arguments carry considerable force and a lot of work needs to be done on this in the coming hours. However, all of us know that stopping the Bill now, and stopping it in the House of Lords, would have huge practical and symbolic consequences, which could threaten the delivery of the extra powers promised to Scotland ahead of the Scottish Parliament elections in May. There would be the most profound political consequences. So, as we have listened carefully to the noble Lord, Lord Forsyth, we should listen carefully to the Minister’s response.

[Lord Hughes of Woodside]

I accept the point that the noble Lord has made about the dangers but does he not see that that is precisely what the SNP is playing for: to prevent an agreement before the election, as that is what it will fight the election on?

[Lord Stephen]

If that is the case, we must flush the SNP out on this, and we must be transparent and open about the progress that has been made and what is being offered by the UK Government in terms of the fiscal framework. The UK Government must be prepared to defend their position as fair and reasonable.

Whatever the result today, I believe that the arguments for greater openness and transparency on the fiscal framework will apply with even greater force when we reach Report. That will be the critical stage for the future success of the Bill.

[Lord Hollick (Lab)]

My Lords, the Economic Affairs Committee, which I chair, and the Constitution Committee both concluded after extensive inquiry that, in the absence of any information about the fiscal framework, it will be impossible for the House to assess whether the Bill will cause detriment to all or part of the United Kingdom. As the noble Lord, Lord Forsyth, pointed out, we are talking about billions of pounds which could move between the rest of the United Kingdom and Scotland, so this is no small matter.

I think the Government have accepted the logic of that position, which is why we are taking Parts 2 and 3 out of order in today’s Committee. In his opening remarks, the Minister said that there will be ample opportunity on Report to scrutinise the fiscal framework. If, as he has hinted and as newspapers have reported, the fiscal framework is to be published in the next few days, would he agree that ample scrutiny can take place only if the procedural rules of Committee stage are applied to Report stage? Will the Minister confirm that he and his noble friend the Chief Whip will press for that?

Scotland Bill

Lord Stephen Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Davidson of Glen Clova]

I rise to speak to the amendment standing in my name and that of my noble friend Lord McAvoy. This amendment has a variety of different effects, but the overall intent is to ensure that the Scottish Parliament has the capacity to—I use the term my noble friend would have used had he been here—smash the glass ceiling of equality in public and political life.

The amendment makes provision for the Scottish Parliament to have legislative competence in respect of the public sector equality duty. It also makes provisions for equality of opportunity in relation to the functions of Scottish and cross-border public authorities. It clarifies that the Scottish Parliament can make modifications to the Equality Acts 2006 and 2010, but only in so far as they enhance the protection and promotion of equal opportunities. It makes provision for the powers of the Equality and Human Rights Commission to be applied in relation to any modifications to the aforementioned Acts as well as increasing the accountability of the commission to the Scottish Parliament. Crucially, it would also allow the Scottish Parliament to bring forward the necessary competence for gender quotas in relation to candidates standing for the Scottish Parliament and at local government elections.

The Bill before us already includes the ability to legislate for women’s representation on public boards, which of course is welcome, but we want to see that go further. We want to ensure that there is a commitment to bring about equality in every walk of Scottish life, including in politics itself. We are now in a position where the economic case for women’s equality in public life has been made and won. It could not be clearer. One of the contributors to this change in attitude is found in the work of my noble friend Lord Davies of Abersoch. His contribution to the debate should not be understated. In his final report he stated:

“It is a sign of our evolution ... that few British business leaders now ask why we need more women at the top, the business case is raised less and less as energies are now focused on how to achieve women in leadership positions and how to sustain the change”.

He also says:

“The business case is even stronger today as Chairs report on the positive impact women are having at the top table, the changing nature of the discussion, level of challenge and improved all round performance of the Board”.

However these successes should not be limited to one particular field. Scotland has come a long way on equality, with women leading the majority of the political parties in the Scottish Parliament, a female First Minister and a female Presiding Officer. But we say that that is still not good enough. In the Scottish Parliament only 36% of MSPs are women, while local government is falling way behind, with apparently only around 20% of women elected councillors. It is this discontinuity that lies behind the notion of candidate quotas in parliamentary and local elections.

I stress that this is not a party-political point, nor should it be. For us to bring about a change in culture and attitudes, we need support from all political parties and buy-in from a cross-section of our society. This is why the tireless work of campaigns such as Women 50:50 is so important. I pay tribute to its contributions in this field and thank it for its assistance in advance of Committee.

At present there are too many barriers preventing women reaching their full potential, in Scotland and indeed across the UK. The low number of women studying STEM subjects and the prevalence of low pay among women in Scotland fortify this point. One is seeking with this amendment to address this particular obstacle. Kezia Dugdale, the Labour leader in Scotland, is doing just that, along with Members across the Scottish Parliament, with her commitment to ensuring that at least half of Scottish Labour’s new candidates for this year’s Holyrood elections will be women. It is a crucial commitment, but we now need the tools to get on and deliver on a wider scale. We believe that this amendment is the mechanism for doing that. I beg to move.

[Lord Stephen (LD)]

My Lords, I shall speak to the amendments in my name and that of my colleague, my noble and learned friend Lord Wallace of Tankerness. As has been stated, Clause 35 relates to the important issue of protection from discrimination and the promotion of equality of opportunity. These are fundamental markers of a fair and decent society. The protections in the law should be strong, and the meaning and effect of Clause 35 must be clear. I believe that we have not yet achieved the parity that is both important and required.

The Equality Act 2010 is widely held to be perhaps the best anti-discrimination law in the world. Thanks to the Act, wherever you live or work in Great Britain, you have a right to fair treatment regardless of your sex, race, age or sexual orientation or if you are disabled. Clause 35 needs to be explicit that the important protections in the Equality Act will be maintained right across Great Britain, and that modifications should be permitted by the Scottish Parliament only where they enhance the protections in the present legislation. As currently drafted, Clause 35 does not yet achieve that. While there is an attempt to differentiate between modifications to the Equality Act 2010, which are not permissible, and additions, which are, these provisions lack the required clarity. I thank the Equality and Human Rights Commission for its support and advice in framing these amendments.

Amendment 52A would make it absolutely clear that the Scottish Parliament had powers to increase protection from discrimination, harassment and victimisation by Scottish public bodies by, for example, adding new protected characteristics, prohibiting dual or multiple discrimination or enhancing remedies. It would also ensure that existing productions could not be eroded in Scotland.

The public sector equality duty is a positive duty, requiring public authorities and those delivering public functions to have regard to how they can promote equality of opportunity. It has great potential to play a transformative role for those experiencing disadvantage and discrimination. Amendment 52A would give the Scottish Parliament greater freedom to require Scottish and cross-border bodies that deliver public services in Scotland to do more to tackle entrenched inequality. We have already seen how the stronger specific equality duties in Scotland have driven greater transparency on the pay gap, for example, which means that it is clearer where action now needs to be taken. To devolve legislative competence for the general equality duty would give the Scottish Parliament far greater freedom to require its public service providers in Scotland to do even more positively to promote equality of opportunity.

The amendment would also ensure that the Smith commission commitment on gender quotas is delivered, while ensuring that the Scottish Parliament could not go beyond the extent to which positive action is permitted by EU law. We want to increase the efforts made to ensure that women have fair representation on public boards, in Scotland and elsewhere in Great Britain, but this must not be achieved through disproportionate barriers to participation by men.

On political representation, Amendment 52A, taken together with Amendment 52E, would enable the Scottish Parliament to allow political parties to take stronger action to ensure greater diversity in their selection of candidates for the Scottish Parliament and Scottish local government elections. However, the Scottish Parliament would not be able to legislate to extend the use of shortlists restricted to those sharing other protected characteristics. While this approach may be appropriate for women, who make up over 50% of the population, it would be disproportionate if it were to be used for far smaller groups, as it would thereby exclude very large sections of the population from such shortlists. These amendments reflect the position in the Equality Act 2010, which was widely debated and agreed by all parties at the time to be a proportionate, fair and appropriate position.

Amendment 52B relates to diversity on public boards. It would remove an interpretation of the term “protected characteristic” which would limit the ability of the Scottish Parliament to encourage diversity on public boards with regard to any characteristics not currently protected by the Equality Act 2010, such as marital status. The Scottish Parliament should have the power to go further than the current protections, should it wish, on this important issue. Amendment 52C may be covered by the government amendments, and I look forward to the Minister’s clarification on this and his response to the other issues that I have raised.

[Lord Dunlop]

My Lords, I echo what the noble and learned Lord opposite and the noble Lord, Lord Stephen, said. The Government are committed to safeguarding equality, tackling discrimination where it arises and promoting transparency; for example, in pay. That is not to say that supplementary initiatives and protections in addition to those offered by the Equality Act do not have a part to play, as the Smith commission saw.

The equality provisions in the Bill relate to public sector bodies in Scotland and will enable the Scottish Parliament to make provision for the promotion and enhancement of equality in the public sector without any extension to the private sector. That is an important point to make; I know that that issue was raised by the House of Lords Constitution Committee. It is important to remember that the Smith commission was explicit that the Equality Act 2010 as a whole is to remain reserved. The Government are confident that the Bill ensures that the benefits of a cohesive framework of discrimination law remains across Great Britain.

In delivering Smith, the equal opportunities clause strikes the right balance between conferring greater competence on the Scottish Parliament for safeguarding and promoting equalities in public bodies and the importance of preserving a GB-wide legal framework. The Government’s delivery of paragraph 60 of the commission agreement ensures that we continue to reserve the 2010 Act while providing the Scottish Parliament with the ability to legislate for specific provisions such as gender quotas. Through the general exception that we are providing, the Scottish Parliament will be able only to add to and supplement the 2010 Act. It will not be able to reduce protections but, instead, will be limited to increasing and promoting protections in relation to public bodies.

Scotland Bill

Lord Stephen Excerpts

Tuesday 19th January 2016 Lords Chamber

Moved by

[Lord Stephen]

59: After Clause 50, insert the following new Clause—
“Business associations
(1) Part 2 of Schedule 5 to the Scotland Act 1998 is amended as follows.
(2) In section C1 (business associations) at the end of the Exceptions insert—
“(c) the law on partnerships and unincorporated associations,(d) the creation of new forms of cooperative enterprise,(e) the creation of new forms of mutual enterprise,(f) the creation of new economic interest groups where the European Economic Interest Group under regulation EEC 2137/85 is not available because the members do not come from more than one state.””

[Lord Stephen (LD)]

My Lords, Amendments 59, 60 and 61, which are tabled in my name and that of my noble and learned friend Lord Wallace of Tankerness, are Liberal Democrat amendments, but they have been very much inspired by the hard work of the Law Society of Scotland. I thank it and Michael Clancy, in particular, for the detail that has gone into these amendments.

Amendment 59 adds further exceptions to the reservation to the UK Parliament of the creation, operation, regulation and dissolution of types of business association. Under the Scotland Act 1998, the UK Parliament can make law to create business associations, such as partnerships and limited companies. Law can also be made concerning the operation, regulation and dissolution of these associations.

Section Cl of Part 2 of Schedule 5 has a number of exceptions to this reservation. These include the creation, operation, regulation and dissolution of particular public bodies, or public bodies of a particular type established by or under any enactment and charities—your Lordships can see that lawyers have helped me with the wording. A business association is defined as any person, other than an individual, established for the purpose of carrying on any kind of business, whether or not for profit. “Business” includes the provision of benefits to the members of an association. We believe that the exceptions from the reservations should be amplified to include the law of partnership and unincorporated association, and to provide for the creation of various types of new forms of enterprise to allow flexibility for businesses to grow in Scotland.

The Partnership Act 1890 already regulates partnerships in Scotland and recognises in some respects the differences between Scottish and English law in this area. The Law Commissions reviewed partnership law and published a report in November 2003 that dealt with the Partnership Act 1890 and the Limited Partnerships Act 1907, with particular reference to independent personality, continuity of business irrespective of changes of ownership, simplification of solvent dissolution and model partnership agreements. In 2006 the Government announced that they rejected the Law Commissions’ recommendations on general partnerships but that they intended to implement the recommendations specifically relating to limited partnerships. That change was carried out by way of the Legislative Reform (Limited Partnerships Order) 2009. However, some of the reforms concerning general partnership reform could be of benefit to Scottish businesses, and an effective means of executing these reforms could be through the Scottish Parliament legislating on these matters. Currently that is not possible, so this amendment would enable the Scottish Parliament to carry out the legislative changes that the Scottish Government may wish to consider and which are contained in the Law Commissions’ joint report. The Parliament should also have the freedom to create new forms of enterprise as listed in the amendment.

Amendment 60 would fully devolve the regulation of solicitors, no matter what function they performed, to the Scottish Parliament and allow the Parliament to make law for licensed providers under the Legal Services (Scotland) Act 2010 in the areas of immigration and asylum, insolvency practice or financial services. There is no provision that reserves the regulation of the Scottish legal professions. Nevertheless, in the Legal Profession and Legal Aid (Scotland) Act 2007, which regulates,

“the making of complaints about legal services”,

it was provided that that Act did not apply to complaints about the provision of advice, legal services or activities relating to consumer credit, insolvency practitioners, financial services or immigration. This was because the Scottish Government took the view that the supervision of the legal profession when giving advice about these reserved matters or providing services was itself reserved, and was therefore a matter for the UK Parliament to regulate. In other words, the Scottish legal professions are regulated partly by the Scottish Government and partly by the UK Government, according to what advice or services they are providing.

In Section C3 there is an exception from the reservation of competition law that covers the regulation of the legal profession, but that exception applies only for the purposes of that section. The problem is that the provision of advice, legal services or activities relating to consumer credit, insolvency practitioners, financial services or immigration is considered to be reserved. Irrespective of whether this view is correct—the Minister and others may reflect different views on this—it is suggested that the Scottish Parliament should be able to regulate all aspects of the Scottish legal professions. That includes alternative business structures formed between solicitors and other professionals as licensed providers under the Legal Services (Scotland) Act 2010.

Finally, Amendment 61 deletes the reservation to the UK Parliament of regulating estate agents in Scotland under the Estate Agents Act 1979. Estate agency in Scotland works within the context of Scottish land law practice and conveyancing, which is, as we all know, different from the law applicable to other parts of the United Kingdom. Were estate agency in Scotland to be devolved, the Scottish Parliament would be able to make law relating to estate agents which would be more closely aligned to the Scottish legal system and the needs of consumers in Scotland, and which would allow the Parliament to legislate fully for licensed providers comprising estate agents under the Legal Services (Scotland) Act 2010. The inability of the Scottish Parliament to legislate in this area is a stumbling block to completion of the legislative framework for alternative business structures in Scotland.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con)]

The noble Lord, Lord Stephen, has spoken on a number of amendments which relate to the amendments put forward by the Law Society of Scotland. I echo what the noble Lord said about the role played by Michael Clancy and all his hard work. I can see that he is sitting in the Box this evening, and I met him last week to discuss these amendments.

Your Lordships will be aware that the context of this Bill is, as we have discussed many times, the implementation of the Smith commission agreement. The commission considered a range of areas for devolution, and the amendments spoken to this evening do not fall within the scope of that agreement. If noble Lords permit, I will briefly explain why, in addition to this, the Government do not support these amendments.

Principally, the UK Government are committed to ensuring that the UK is one of the best places to start up and run a business. To devolve legislative competence for the creation of new business entities or health and safety to the Scottish Parliament would add complexity and confusion to the business landscape in areas where we are already considered world-class. We are also committed to protecting consumers, and to devolve one aspect of the regulation of estate agents would lead to fragmentation of the approach across Great Britain. The Government consider that this would be ineffective and could harm consumers. We are striking the right balance of powers in the Bill while maintaining the strength and security and benefits for British business and for our consumers.

Amendment 59 would allow the Scottish Parliament to legislate for partnerships and unincorporated associations and allow the Scottish Parliament to create various new forms of enterprise in Scotland. The pressures that businesses face are generally the same throughout the UK and, therefore, when considering whether new business entities are appropriate, it is right that we should take a UK-wide view. It would not be right to have competing regimes of business regulations north and south of the border, and therefore I urge the noble Lord to withdraw the amendment.

Amendment 60 is unnecessary because regulation of the legal profession in Scotland is not a matter reserved by Schedule 5 to the Scotland Act 1998. However, the legal profession in Scotland advises on a diverse range of issues, including matters such as consumer protection, for which this Parliament retains responsibility for legislating. The Scottish Parliament does not have the legislative competence to make provision that relates to a reserved matter or modifies the law on reserved matters. This means that the Scottish Parliament cannot make provision specifically targeted, as the amendment proposes, at the regulation of insolvency practitioners, which is reserved by Section C2 of Schedule 5 to the Scotland Act 1998. Given this explanation, I urge the noble Lord not to press this amendment.

Finally, in addition to Amendment 61 being outside the scope of the Smith commission agreement, it is inappropriate. The Estate Agents Act 1979 is just one of the pieces of legislation that apply to the regulation of estate agents in order to protect consumers. Devolving this aspect of consumer protection policy while reserving other aspects, such as unfair and misleading practices, would lead to fragmentation of the approach across Great Britain. This would be ineffective and could harm consumers. Therefore, I urge the noble Lord to withdraw the amendment.

[Lord Stephen]

I thank the Minister for his response, although clearly he does not agree with me or with the Law Society of Scotland on this issue. He mentioned fragmentation. Another word for that is devolution. The same argument about areas that are considered to be world-class could apply equally strongly to health, education, transport or housing. I can see no inconsistency whatever in saying that throughout the United Kingdom we will have world-class health and world-class education but with differences—substantial differences in some cases—between the Scottish system and the system in other parts of the UK.

It seems to me that the point about business and partnerships was well taken by the Government of 1890 in this country, who made separate provision, as I said in my previous speech. Back in 1890 there was a Partnership Act—I am sure that the Minister will be able to get briefing on this in due course—that recognised the differences between Scotland and the rest of the UK, so what is being proposed here is in no way ground-breaking. It would be interesting to find out the colour of the Government back in 1890 when this measure was introduced, but it was long, long before the introduction of the new Scottish Parliament through the Scotland Act in 1999.

I also differ with the Minister in relation to going no further than, or implementing only, the Smith commission proposals. I think it is fair to say that that has been a pretty constant reference from the Government Front Bench. In quite a few respects the Government already have gone further—for example, the amendment in relation to abortion was not contained in the Smith commission report—so why not go further when it is a sensible measure, when it could be of advantage to Scottish consumers and Scottish business, and when it is something that is quite technical and detailed but has been given a lot of thought by the Law Society of Scotland and would make for sensible, better devolution?

I hope that the Minister might see sense and come back to us at the next stage with some amendments in this area but, for the moment, I beg leave to withdraw the amendment.

Amendment 59 withdrawn.