Scotland Bill

Lord Stephen Excerpts

Monday 26th March 2012 Lords Chamber

[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.

[Lord Stephen]

None of this is simple. The Scottish Parliament came forward with some very practical and pragmatic solutions to try its very best to tackle this problem. Back in 2000, when we first looked at the problem, the big issue was how we treated Scots attending universities outside Scotland, because they, too, are prejudiced—in terms of some of the quite extreme language which has been used at times in this debate. For them, there is a system that is different from that for students from England, Wales and Northern Ireland when they choose to study at a university outside Scotland. I referred to the legal advice that we received that day when I said in the Scottish Parliament:

“We wished to treat all Scots the same, but a significant problem was drawn to our attention. Members have asked for the legal advice and I will try to be helpful on that point … Article 12 of the Treaty on European Union prohibits discrimination on the ground of nationality against nationals of other EU states. The imposition of fees on students who are students of other member states as a condition of access would amount to discrimination if the fees were not imposed on nationals of the host member state … We had to consider whether we, in Scotland, as part of the UK member state, could provide that Scots—who for this purpose would be regarded as UK nationals—did not pay tuition fees in the rest of the UK. Given the risks of challenge by other EU nationals and based on the best advice available, we produced the proposals that are before us today”.

In other words, if we had funded Scottish students to attend universities in England, Wales or Northern Ireland without payment of tuition fees, to put them on a level playing field with other students in Scotland, the Scottish Government could have been held liable to fund the tuition fees of all EU nationals from outside the rest of the UK who attended universities in the rest of the UK. This is a complex and difficult problem created, in many ways, by the EU legislation. “Change your lawyers”, I hear from the Bench in front in me, but we were given that advice by some very senior lawyers, one of whom is present on the Opposition Bench today—a noble and learned lawyer. We came up with what were called the Quigley principles—how many people remember them? It was all about creating some sort of level playing field. I am not going to get into the rather offensive language of ethnic cleansing or use the word “swamping”. We simply wanted to stop a surge in demand—a disruption of the system that currently allows over 20,000 students from the rest of the UK to study in Scotland. That is a significant number of students, it has been a pretty stable number of students and it has only stayed stable because we have managed to maintain a level playing field. We were given legal advice that this was the only legal way to do it—that quotas would not be acceptable.

[Lord Forsyth of Drumlean]

Did the noble Lord think of looking at what happens in Ireland? Ireland has free tuition fees; students cross the border from Northern Ireland to attend Irish universities and are treated in exactly the same way. What is the difficulty with replicating exactly that with Scotland?

[Lord Stephen]

I can only repeat that we were given very clear legal advice that that would not be possible. As I understand it, that was the best legal advice of the UK Civil Service. If that advice has changed, I am sure that Ministers in both London and Scotland would be interested to receive it.

[Baroness Brinton]

Perhaps I may assist my noble friend by reminding the Chamber that the EU advice is about a member state. Under the definition of a member state, Eire, Ireland, is one state; Northern Ireland is different. That is why the rules are different.

[Lord Stephen]

Based on the legal advice we were given, we had to come forward with a pragmatic solution. That was to increase the fees to students from England, Wales and Northern Ireland but not above what students were paying to attend their own universities. It was to maintain the principle of equality among those students, if you like to look upon it that way. That is a very different situation from that which has been described this evening.

It all started in 2000 and was introduced in 2001. When fees went up due to the decision of the then Government in 2006, we had to introduce a different system. My colleague at the time, the noble Lord, Lord McConnell, and I were First Minister and Deputy First Minister respectively. There was pretty much cross-party consensus that that was the right thing to do. English, Welsh and Northern Ireland students pay their fees personally, normally through the Student Loans Company or through local authority funding arrangements. However, an important point that has not been mentioned this evening is that payment for tuition in Scotland has, until now, been topped up by the Scottish Government to the tune of about £5,000 per annum for each and every English, Welsh and Northern Ireland student attending university in Scotland.

[Lord Sutherland of Houndwood]

The noble Lord assures us that there was interparty discussion within Scotland about these things. Was there any intergovernmental discussion and, if not, why not? I fear that that is what is lacking at the moment.

[Lord Stephen]

I agree with the noble Lord. The answer is that there was not enough intergovernmental discussion because the UK Government were entirely hostile to the notion that tuition fees should be removed for Scottish students. Their hostility was made known to us on more than one occasion. They were unhappy with what was proposed in Scotland.

Scottish students had their fees paid by the Student Awards Agency for Scotland and then, separately, the £5,000 payment from the funding council was given for their tuition. In other words, until now, English, Welsh and Northern Ireland students were part of the cap as well as Scottish students. It is important to make that point.

We introduced that pragmatic solution to a potentially major problem, which could have scuppered the proposal to get rid of tuition fees in Scotland. I have to say that many of my colleagues in the Labour Party, my friends whom I worked with in coalition, subsequently said that it was one of their proudest boasts, their proudest achievements through the Scottish Parliament to get rid of tuition fees in Scotland. It was certainly one of mine. As I said, back in 2000, we were disappointed with the legal advice that we were given at the time and wished that it were different. If it can be changed, let us change it.

The bigger question, in my view, is the one mooted by more than one noble Lord this evening: if Scotland were to be independent, how would the Scottish Government tackle the legal situation? It would be difficult to understand how they could legally respond to the challenges I have described. Free tuition would then have to be offered to all EU students, including those from Scotland, England, Wales, Northern Ireland and the rest of Europe. We have not heard a response from the SNP on that issue.

The situation now is that English, Welsh and Northern Ireland students are being moved outside the cap. That is another important point. The funding from students will now be sufficient to remove the need for a contribution from the funding council. Why is that? Self-evidently, because fees in England, Wales and Northern Ireland have been allowed to increase so much. There will now be the £9,000 per year limit, so English, Welsh and Northern Ireland students will be in the same position as international students, who have always been discriminated against—if that is the language we wish to use. They will be put in the same position as international students, but with a cap of £9,000 per year.

In my view, the preferred solution would be to remove tuition fees across the whole of the UK. That would work equally well in tackling the problem— removing it, to use a political phrase, at a stroke. The policy was never to fund all EU students. That is not what we wished to do; that was what the legal advice drove us to do.

[Lord Sewel]

The noble Lord has given us a detailed exposition of the funding difficulties. Perhaps he could carry that a little further in terms of what he thinks the effect on the Barnett formula would be if the Scottish Funding Council funded only Scottish-domiciled students.

[Lord Stephen]

As I understand it, there would be no effect on the Barnett formula, so the £85 million per year currently spent on the English, Welsh and Northern Ireland students to attend universities in Scotland would become available to the Scottish Government as those funding arrangements changed. The noble Lord, Lord Sewel, looks incredulous at that, but that is my understanding.

To finish, different policies for different parts of the UK so that different people, including students, can be treated differently sounds to me pretty much what decentralising power, devolution, is all about. It is surely the responsibility of those elected to the Scottish Parliament to introduce new ideas and new policies. What we found deeply uncomfortable was the notion that you could discriminate within a member state but not between member states. That seems nonsense, but I know of no other way to tackle it based on the legal advice and the pragmatic solution that we have chosen. Let us be honest, this is hardly a burning issue of major importance in the reaction of students and families across the UK, because we still have ready access through our pragmatic solutions for English, Welsh and Northern Ireland students to universities in Scotland and we continue to have Scots attending universities outside Scotland.

[Lord Flight]

Does the noble Lord agree that among those English students who are at Scottish universities and who are having to borrow money and build up their loans, there is quite a degree of resentment that their Scottish friends do not have that burden? To argue that this has no impact is candidly wrong.

[Lord Stephen]

I would argue very strongly that the difference is based on the different policy approaches that the UK Government and the Scottish Government have introduced to the funding of students and tuition fees. I repeat: I do not see that an English, Welsh or Northern Ireland student studying in Scotland is in a different position from that same student studying in their home country. To that extent, they are treated broadly equally.

I would much prefer that we had no tuition fees in universities across the UK, but, in conclusion, I am very pleased that there continue to be no tuition fees for Scottish students in Scotland.

[Lord O'Neill of Clackmannan]

There seems to be a new Scottish excuse running around. It seems to affect Rangers Football Club, the Scottish Football Association and the noble Lord, Lord Stephen: “That was the legal advice we got and it seemed all right at the time”. We as Scots have enjoyed a degree of financial support for a variety of reasons through the Barnett formula from the whole of the United Kingdom. It can be argued that from some of the nations of the United Kingdom there has been a degree of grudging of those payments, but the grudging might well have been set alongside the gratitude for having opportunities to benefit from Scottish institutions—in the case of this evening’s debate, not art galleries, such as the superb ones we now enjoy in Edinburgh and Glasgow, but the universities, which are just as important a part of our social and cultural heritage in the United Kingdom as a whole.

It must be recognised that we are talking here about something that is fundamental to the unity of the United Kingdom. There is access to institutions of higher education on the basis that it is available to all—although financially no longer free, which is an argument for another day. However, three sections of the United Kingdom are being discriminated against, yet the taxpayers within those parts of the United Kingdom are contributing to these institutions.

We have been told this evening of a tsunami of English students coming to Scottish universities—the word “tsunami” sometimes slips far too easily off the tongue; sometimes you forget that it has a “t” at the beginning—but that is probably unlikely. However, we might have a slightly different social composition of the youngsters who would be coming up to Scotland. This is because of the fact that they have to pay fees and that they have to pay what are almost the equivalent of London rental prices for student accommodation in a city such as Edinburgh, where there is tremendous pressure. In addition, as has been suggested, some parents are able to achieve Scottish domiciliary status by a bit of shrewd property investment, which, by the end of the four years their kids have been at the university, will more than repay them for the outlays that they made four years previously.

There is a degree of naivety here. We know that Scottish universities will have to face financial problems. Some of us might have known more about this had we been sent briefing notes, but, perhaps because of some of the speeches that we made in Committee, we were regarded as lost causes and it was decided that we were therefore not to benefit from them. We know that there are financial costs, but these are problems that, were there to be Scottish independence, which I do not want, would have to be confronted the first moment that the union jack came down and whatever it would be for Scotland—whether the lion rampant or the saltire—went up. Of course, this is why the silence from Salmond is so deafening, because he knows that this is the kind of issue that will have to be dealt with. What is more, our great Scottish institutions, which would suffer financially, are suffering already because of the manner in which the funding arrangements have been arrived at. We know that they are not getting the resources that they require.

If this were just a question of finance, resource and discrimination, we could have debates about that, but there is an irony here. Not every youngster who is Scottish and pursuing a degree-level course gets free education. If a youngster attends a further education college and is doing a level 5 or 6 technical qualification, which is to all intents and purposes equivalent to a degree, they have to pay their fees. Their fees are not paid from the largesse of the Scottish Government. There is no social justice to people having to pay to pursue vocational courses that, as some would argue, are even more valuable for the lifeblood of the Scottish economy than perhaps some other courses that are rather more interesting but not necessarily more economically relevant in the immediate short term.

I make that point because there is an inconsistency here—inconsistencies have been identified in a number of categories this evening. We may simply accept the argument that this is an example of gross discrimination, which is basically unfair and which is unsettling for the United Kingdom, and that it would be in everyone’s interests to look towards a renegotiation of the settlement. We are not arguing that universities be bankrupted overnight. We are not suggesting that they be swamped with students coming northward—students who, from what we can gather, would be coming not in buses but in their own sports cars and the like. All we are saying is that we have an opportunity this evening to confront an issue that threatens the unity of this kingdom. It requires us to look afresh and to use far more ingenuity rather than bureaucratic complaints or concerns about legal advice that may or may not have been appropriate at the time. We now have to recognise that within a different political context we need to have a degree of agility that involves negotiation and understanding on both sides. This amendment this evening would go no small way towards trying to achieve that.

Scotland Bill

Lord Stephen Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Williamson of Horton]

My Lords, as I attended 108 meetings of the Agriculture and Fisheries Council I must just very briefly intervene. Of course, it was very common in the council that a Minister from the Scottish Office—a Scottish member of the UK Government—led for the United Kingdom. This was quite right, because of the huge fishing interest of Scotland. That was perfectly reasonable. I do not remember any case where there was anything complicated about that.

I should add that some other member states did something quite different. For example, a representative of the regional government in Belgium spoke for Belgium on a number of occasions, and I think on one or two occasions a representative from a German Länd spoke for the German delegation in the council. That was not the British position but the position of two other member states.

[Lord Stephen]

Before the noble Lord sits down, perhaps I may point out that indeed that has happened: a Member of the Scottish Parliament has represented and has led for the United Kingdom at a European committee. Therefore, the pattern that the noble Lord has described is unusual but it has happened.

Scotland Bill

Lord Stephen Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I confessed that I knew nothing about it, but it seems a very sensible proposal. I have in the past suggested that because the Scottish Parliament sits only one and a half days a week, a solution to the West Lothian question would be that all Scottish Members of Parliament should sit in the Scottish Parliament for one and a half days a week and on those one and a half days the House of Commons could discuss those matters not related to devolved issues. This has not proved very popular with Members of the Scottish Parliament, for reasons that I cannot imagine. So in following the advice of the noble Lord, Lord Foulkes, they might protect themselves from being endangered by people like me, who might suggest that there were synergies in combining the roles of a Member of the House of Commons with a Member of the Scottish Parliament. I am sure that the Scottish Parliament will show considerable gratitude to the noble Lord in drawing this matter to public attention if, indeed, it has already got that Parliament rethinking its sitting days.

[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.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, it has been amply demonstrated by the remarks of the noble and learned Lord, Lord Boyd, that, as things currently stand, whole Bills can be delayed—possibly for months—should only a single provision be referred to the Supreme Court to determine whether it was within legislative competence. Section 33 of the Scotland Act 1998 contains a power to allow the law officers to refer Bills passed by the Scottish Parliament to the Supreme Court to determine whether they are within legislative competence prior to Royal Assent to the legislation.

The Scotland Bill provides the Government with an opportunity to re-examine this power. Indeed, as the noble and learned Lord indicated, the Calman recommendations encouraged a general sweep-up, and so within the Scotland Office and the Office of the Advocate-General we looked at all the different matters that had arisen and at where there were opportunities to amend, and some of these are reflected in other parts of the Bill.

It is very helpful that the Committee has been informed by the noble and learned Lord, from his many distinguished years of experience as Lord Advocate, as to how the process works. I should put on record from the UK Government’s side that officials in my department talk day in and day out to officials in the Scottish Government’s legal department on proposed Bills and orders to ensure that they come within competence. They discuss particular issues, and sometimes, when it is found not possible to get a solution under the legislation to be passed by the Scottish Parliament, orders under Section 104 of the Scotland Act can be brought forward to give effect to certain provisions. One sometimes sees headlines about the more controversial issues. We should not lose sight of the regular and valuable work done by officials in respective Governments to try and resolve many of these issues.

Likewise, officials within my department monitor Bills as they go through the Scottish Parliament. In a similar way to when the noble and learned Lord was Lord Advocate and during the 28-day period, these matters were looked at in my own department and ultimately referred to me to decide whether to refer them to the Supreme Court under Section 33. I share this thought with the noble and learned Lord. I recall from being a Minister when he was Lord Advocate the thoroughness with which that was done. Yet shortly after I took up office as Advocate-General, a case came before the High Court of Justiciary involving the competence of an order of lifelong restriction when someone had been convicted of an offence solely under the Firearms Act. That is of course a reserved matter. The question was whether the order was competent. The general view was that it was not, and ultimately the Crown did not defend the appeal. One of my officials said, “Who was the Minister who signed the original Bill as being competent?”. I had to hold my hand up, but I will not say who the law officer was who gave me that advice. It is fair to say that the other parts of the Bill stand with regard to the order of lifelong restriction and to offences that were either common law or related to devolved matters. That underlines the fact that a considerable amount of effort and work go into this.

With this clause, we sought to prevent unnecessary delays to Bills the majority of provisions of which are considered to be within the competence of the Scottish Parliament. In these circumstances, the affected Bill would be submitted for Royal Assent by the Presiding Officer, while the disputed provisions would not come into force until the Supreme Court had reached a decision and Scottish Ministers had made the appropriate commencement order.

As the noble and learned Lord indicated, this power has not been used to date. As I have indicated, that is testament to the engagement between the UK and Scottish Governments, both under the current Administrations and previous ones. We do not really need to be reminded of how much both Parliaments enjoy, particularly in the field of criminal justice, so-called Christmas tree Bills to which bits are added here, there and everywhere. No doubt there is a need to address some recent development, or some official remembers a particular problem that needs sorting out. It would be regrettable if a Bill whose provisions for the most part were well within competence had one particular clause thought to be outwith competence and that had to be referred to the Supreme Court for a determination that held up the whole Bill. We wish to address that issue.

The limited procedure that we propose seeks to do that. I will deal with some of the amendments before addressing some of the points raised by the noble and learned Lord.

[Lord Stephen]

Before moving on, might the noble and learned Lord at this stage or later in his remarks take the opportunity to refer to an issue relating to the SNP Government’s proposed referendum Bill, on which he will be aware of very clear legal advice to the UK Government? Given the current procedures and how they might be affected by the proposals in this Bill, what is his understanding of the position within the Scottish Parliament on involving the law officers in Scotland if the referendum Bill moved forward?

If law officers were to advise the Presiding Officer that the Bill, or any other piece of legislation—the noble Lord, Lord Steel, will have much experience in this regard—was not legislatively competent, would that advice become apparent at any stage? Need that advice become public in any way? This is a matter of huge interest at the moment in Scotland.

--- Later in debate ---

[Lord Wallace of Tankerness]

I express the view of the United Kingdom Government; I shall leave it at that. There is good reason why the convention is there, and it has been quite rigidly adhered to by law officers of all Administrations, in Scotland and the United Kingdom generally.

The noble Lord, Lord Stephen, also asked about the legal advice given to a Presiding Officer. The Ministerial Code arrangements for that are clearly not the same. Off the top of my head, I could not say whether that legal advice would be made available or not, or what the response would be if someone wanted to FoI it. It might well be that it is advice given by a lawyer and that there are categories of exemptions for legal advice. It might be a matter that would end up in the courts—I am not going to express a view on it.

[Lord Stephen]

My point is that when my noble and learned friend and I were in government, I recall that we went to quite extreme lengths to make sure that a piece of legislation was within legislative competence. The noble and learned Lord, Lord Boyd, has already referred to those matters. Part of the hard work that was done was to ensure that a piece of legislation would get the approval of the Presiding Officer. My understanding was always that if there was a conflict with the Presiding Officer, we would work on the legislation and make sure that it was within legal competence, as defined by the Presiding Officer. From what has been said this afternoon, a Government can, as I understand it, in effect defy the ruling of the Presiding Officer and push forward with the legislation, and no one in the Scottish Parliament—indeed, no one in Scotland—would be aware that the Presiding Officer had been overridden. That is my understanding of what the noble and learned Lord, Lord Boyd, and my noble and learned friend indicated. I suppose the question is: in what way would it be known that, for example, the referendum Bill had been laid before the Scottish Parliament even though the Presiding Officer had not approved it as being within legislative competence?

[Lord Wallace of Tankerness]

Perhaps I can clarify for my noble friend that Section 31 of the Scotland Act 1998 is relevant in this regard. It states:

“A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament”.

Subsection (2) says:

“The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view”—

or in the case now, in her view—

“the provisions of the Bill would be within the legislative competence of the Parliament and state his decision”,

so the Presiding Officer has to state their decision as to whether it is within competence.

Let us take this away from the question of the referendum Bill, because our ambition here is not to get into that position; it is to reach an agreement, preferably on a Section 30 order. However, in general, the Presiding Officer has to decide whether the provisions of the Bill would, in their view, be within the legislative competence of the Parliament, and has to make that decision public. It is still the case that the Parliament could proceed to debate and process the Bill notwithstanding that, but there are obviously political ramifications. I could imagine some pretty lively debates if that was to be the case.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I treat the noble Lord, Lord Steel, as a friend of mine; in fact, he was at the party as well. He will not be coming to my 80th, that is for sure—no, that is a very good point.

It illustrates the absurdity of it all. When I was a Member of Parliament for Carrick, Cumnock and Doon Valley, which we considered a relatively safe seat, I had meetings all over the place. I produced literature and spent almost the limit to make sure that I got elected. In 1997, I ended up with the largest majority in Scotland as a result. We worked hard to get elected. It seems absurd, having worked hard year in, year out to get elected as a Member of Parliament in that constituency from 1979 to 2005, I just floated in easily to the Scottish Parliament. It is a strange system.

[Lord Stephen]

Not having been invited to the birthday party, can I, perhaps unfairly, point out that the voting system was to be proportional, which was agreed through the constitutional convention? The Liberal Democrats, as always, proposed a fair and appropriate system—the single transferrable vote in multimember constituencies. My clear recollection is that the Labour Party, in conceding a proportional system of election, was prepared to agree to anything except the system that was being proposed by the Liberal Democrats. Therefore, it was the Labour Party that devised the system that we now have in the Scottish Parliament. I would welcome it if the noble Lord, Lord Foulkes, and other members of the Labour Party were now suggesting a fairer system of proportional representation. Perhaps the noble Lord will give his backing to the single transferrable vote.

[Lord Foulkes of Cumnock]

I was commending the noble Lord, Lord Forsyth, and David Cameron earlier for not being party political in terms of support for the union and for not looking for party advantage. As the noble Lord, Lord Stephen, will find out, I am doing the same in relation to this. I will come to that in a moment.

We were told by the architects—it is coming back to me now. It was not the noble Lord, Lord Steel, who was guilty, but probably Henry McLeish who was the architect; he is the guilty person. If he is not, he is getting blamed for it now, but I am sure that he is.

--- Later in debate ---

[Baroness Liddell of Coatdyke]

My Lords, I can put on the record now that right from the start of the discussions about the Scottish Parliament, I was opposed to the voting system. It got to a stage where the minute I came into a room, eyes would glaze over. As a consequence, I lost the ability to make my arguments. To some extent, my opposition was based on recognition of the difficulty of having regional list Members and the problems that it would create for individual constituency Members where you had someone who could helicopter into your constituency and cherry pick the issues. It makes it very difficult even if it is a member of your own party who is the regional list Member. It makes it very difficult to run a consistent service as an elected representative. Time after time I was told that I was old-fashioned and that I was being tribal. My heart told me that I wanted first past the post, because that was the way that my party would win; but my head told me that for a new system of government, for devolution, we had to find some other way of doing things—but I was extremely unhappy with AMS. As the Minister knows, that is parallel to the system which operates in New Zealand, where there has just been a referendum and, ironically, they have voted to keep it.

Having said that, I agree with my noble friend about the hotchpotch of systems and the problems caused by non-contiguous constituency boundaries. In a couple of instances, I may have been responsible for that because of decisions that I took as Secretary of State. You do not always get the opportunity to take the decisions that you would want to take. However, I am opposed to the proposal that my noble friend has put forward—not because I am opposed to the idea of a review, but because I think that when you have been comprehensively beaten in an election, you do not turn around and say, “We’ve got to change this”. I accept that the Government of whom I was a member could have done something about a review, and the coalition could have done something about a review before the Scottish Parliament elections. Frankly, however, I think that we have missed the boat. It would be interpreted as the unionist parties saying, “We was robbed”. We have just been saying that we must be absolutely certain that the referendum is fair and transparent and that the decision will be accepted by the majority, which is very important. I think that we have missed the boat.

[Lord Stephen]

Would the noble Baroness be prepared to take a different view if the Scottish Government were in favour of a review of the voting system? My understanding is that the SNP Government would prefer a different form of voting system, perhaps even one in line with the system that the noble Lord, Lord Foulkes, might be persuaded to back, and similar to the proposals set out by my noble friend Lord Steel. If that were the case, would it not fundamentally change the argument that she has just made?

[Baroness Liddell of Coatdyke]

I thank the noble Lord for that intervention. It would change my position. I would snatch off their hand if they proposed a review of the voting system. I would be surprised if they wanted to do it now when the voting system has so decisively played in their favour and they have developed a sophisticated strategy of ensuring that regional list Members forensically target seats where there is a prospect of winning. My former seat of Airdrie and Shotts, which used to be one of the safest in Scotland, now has a SNP Member of Parliament because of that very forensic, very clever targeting of constituencies and issues.

It is with considerable regret that I say to my noble friend that I do not think that this is the time for this House or this Parliament to call for a review, because it would be misinterpreted. However, it is not often that I get a chance to say I told you so. There are one or two people, who will not be listening now, to whom I said that. It is a case of I told you so.

Scotland: Constitutional Future

Lord Stephen Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, all I can say is that there has been ongoing discussion between Ministers of this Government and the Scottish Government since May of last year on a whole range of issues, including those relating to the Scotland Bill and UK Ministers trying to ensure that they can get some information from the Scottish Government about the referendum. I do not think that the details of this specific consultation document were discussed in detail but we have certainly been challenging the Scottish Government to indicate to us how they think that they could deliver on their manifesto commitment.

On the boycott, I very much hope that that will not happen and that people will realise in Scotland that what is being proposed here is a way forward. My noble friend Lord Forsyth expressed it absolutely succinctly: what is happening is a way forward for them to have their policy delivered in a legal way without it being challenged in the courts, which would be in no one's interest. That would lead to uncertainties and bad feelings, and perhaps be an indecisive outcome. That would be in no one's interests. Perhaps, in the cold light of day, it will be seen that what is proposed here is a sensible and very reasonable way forward. I hope that sense and reason will prevail.

[Lord Stephen]

My Lords, I would like to probe further the fury of the SNP on this issue. Will the Minister confirm that these proposals merely aim to create a fair, appropriate and legal framework that will allow a referendum on independence to take place—a referendum that will in fact be organised by the Scottish Government on terms fixed by the Scottish Parliament, all as promised by the SNP? Will he confirm that Alex Salmond and his Ministers will be able to set the wording of the referendum question, provided that the Electoral Commission agrees that it is not biased, rigged or gerrymandered in any way?

What is the SNP moaning about? As the consultation document makes clear, the most recent Scottish Government document on all this said that they wanted to have a referendum as soon as possible—and a referendum on independence, not on devo-max or on anything else. That is not, I remind the House, SNP policy. Is it not the truth that Alex Salmond is now desperate to have a second question to give him and his party an emergency escape route from the political meltdown that he will face when he loses a vote on independence? We should not give him that lifeline.

[Lord Wallace of Tankerness]

The simple answer to that is that we want a decisive referendum, and one of the key means of delivering that is to have one question. That is why the draft order that we propose makes provision for just one question. It would allow for provisions in relation to the UK Parliament for UK-run referendums to be applied to the Scottish Parliament and the Scottish Government, but we believe that that one question will resolve matters and we should not be muddying the water with devo-max—whatever that means. No one has a clue what it means; it was not in the SNP manifesto. What was in that party’s manifesto was a question about Scottish independence, and that is what we believe we are assisting the Scottish Parliament to deliver. I hope that the SNP will recognise that this Government are being very fair and reasonable in trying to achieve that end.

UK: Union

Lord Stephen Excerpts

Thursday 3rd November 2011 Lords Chamber

[Lord Stephen]

Does my noble and learned friend agree that rather than being for the UK Government it should be for Alex Salmond and the SNP to spend some of their own time and money explaining what full independence really means? For example, is it not time that Alex Salmond told us how many military bases would remain in Scotland? How would he split the Scottish pension system from the UK system? Would he create an entirely new tax and benefits system for Scotland; and if, as he says, he wishes to retain sterling as Scotland’s currency, would EU membership allow this? If it would, what powers would he intend to have to instruct Mervyn King and the Bank of England on monetary issues, or would he just leave that to George Osborne?

[Lord Wallace of Tankerness]

By asking that question, my noble friend makes it very clear that the First Minister of Scotland and his party have a host of questions to answer, not least on the currency because there are even those who think that if Scotland wished to join the European Union it would be obliged to adopt the euro. Andrew Hughes Hallett, who is on the First Minister’s Council of Economic Advisers, indicated that, as was reported earlier this week. It would be rather odd. Some countries, but not many, adopt the currency of a foreign country but have no powers. It just underlines what a weak position Scotland would be in.

Scotland Bill

Lord Stephen Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Stephen]

My Lords, I begin by agreeing with my noble friend Lord Soley that the timing of this debate, given its self-evident importance, is less than ideal. However, there have been many very valuable contributions. It is perhaps worth starting with the summary given by my noble and learned friend Lord Wallace about the history of all this. This particular Bill and review all began back in 2007, immediately after the Scottish election that took place in that year. There was a sense that, after 10 years or so of its operation, we needed a full and serious review of the working of the Scottish Parliament and its effectiveness and the possibility of more powers for the Parliament. We needed to put in place what became the Calman review to achieve that.

It is important to underscore that the scale of this review has been extremely serious, significant and substantial. In my view, great credit should go to the noble Lord, Lord McConnell of Glenscorrodale, for helping to trigger the review. He had just fought a very close election campaign, essentially on a manifesto of no change to the powers of the Scottish Parliament, yet he took on the proposal to trigger this review. So too did the leader of the Scottish Conservatives—now their outgoing, and perhaps final, leader—Annabel Goldie. Not everyone in her party agrees with this review, as we have seen in the Chamber this evening, but she was prepared to put her reputation at stake and work with the Labour Party and the Liberal Democrats to trigger the review.

My position at that time, as leader of the Liberal Democrats in Scotland, was a far easier one, because, as noble Lords will be aware, the Liberal Democrats support home rule, a federal structure for the United Kingdom, greater powers for the Scottish Parliament and more decentralisation. My concern was that the whole thing would not go far enough and that it would not be substantial. To give one simple point of clarification, I should point out to the noble Lord, Lord Forsyth, that in establishing this review, we had to wait for the election of Wendy Alexander as the new Scottish Labour leader before finalising the commission, its membership and so on. The plans were already in place when she became party leader, and therefore her plans to support the referendum—to “bring it on”, as noble Lords may recall, and as he referred to earlier—did not actually come until later in her leadership.

I would like to pay tribute particularly to Professor Sir Kenneth Calman, but also to the lay people—businesspeople and young people from across Scotland—as well as the senior party political figures who participated in the Calman review. I would also like to pay tribute to the noble and learned Lord, Lord Boyd, the noble Lords, Lord Elder and Lord Selkirk, and the noble Earl, Lord Lindsay, and particularly to the noble and learned Lord, Lord Wallace of Tankerness. I am delighted that he is now in charge of the Bill in this House. I think it should also be mentioned that there was one other political activist involved in all of this, Audrey Findlay. She deserves considerable credit, not least for her work alongside the noble and learned Lord, Lord Boyd, the noble Lords, Lord Elder and Lord Selkirk, the noble and learned Lord, Lord Wallace of Tankerness, and the noble Earl, Lord Lindsay. It was quite a task for her to be part of that heavyweight team.

It was hard and serious work, but we achieved unity. That involved compromise. It could have been simply tinkering at the edges—a polishing of what was achieved in 1998—and, at one point, I feared that it might be. Yet, in my view, the commission came up with a radical set of measures particularly in relation to taxation that went far beyond what we were told that the Treasury would live with when the review was first established. That is another point to emphasise: getting the UK Government to support the Calman commission, and getting the Treasury directly involved in the review, was difficult to achieve, but we got there in the end and they played a very important role in shaping the proposals that are now part of this Bill.

It is simply not tenable for any Parliament to receive a £30 billion cheque each year but have responsibility only for spending that money without having any role in raising a single penny. I tried to explain the system once to the Chinese Finance Minister during a visit to St Andrew’s House in Edinburgh, probably just after a lunch with my noble friend Lord Steel as Presiding Officer down at the Parliament. After I had given the best explanation I could, he responded by saying “Ah, I understand now. It’s very similar to the way we fund Tibet”. At that point, I wondered whether the problem was my explanation or whether we perhaps had a fundamental problem with the system in Scotland. The Scottish Parliament was, and today still is, 100 per cent dependent on another Parliament for its funding. In my view, that is not sustainable and more powers to create a more buoyant tax base are required. Perhaps more powers than are in this Bill are required in time, but this remains a strong start.

For the Liberal Democrats all of this was, as I have mentioned, a natural progression building on our original commitment to home rule, our commitment to the Scottish Constitutional Convention, the progress through Parliament of the Bill which became the Scotland Act and then the excellent work of the Steel commission, chaired by my noble friend Lord Steel, in looking at how to create a stronger, more effective Scottish Parliament. This Bill is not only of great significance but has been progressed far more quickly than we might have imagined when the Calman commission was established. Having been thought of in the summer of 2007, the commission was established by the Scottish Parliament in December that year, with an interim report in 2008 and a huge volume of work done by the commission and its members in the period up to the final report in 2009, which was at the 10-year mark. It was then endorsed at a UK general election in 2010 and is moving forward into legislation in 2011. It has moved speedily—far more so than I originally anticipated—and has had a far greater impact on Scotland than the Scottish Government's “national conversation”, which took place over the same period.

In my view, the UK remains too centralised. We have heard discussion tonight of some other nations. My noble friend Lord Maclennan mentioned Australia, in some parts of which 55 per cent of the tax base is raised at the state level. In some regions of Spain, 100 per cent of taxation is raised at the regional level. The USA, Canada and Germany—the list goes on—all raise substantial taxes at a federal or regional level and all have substantial devolved powers. Democracy can still work—indeed, can flourish—with systems of devolved administration and federal taxation. Wide, broadly-based tax-raising powers at local or regional level, in my view, give strength to democracy rather than undermine it. We need to see more of this in the United Kingdom. Some would argue that 33 per cent is not enough; my noble friend Lord Forsyth mentioned that. I have some sympathy with that view but this Bill is, I repeat, a substantial start and should be strongly supported.

Finally, at one point we thought the Calman proposals might settle things, perhaps for the following decade. However, in May this year that all changed so this Bill is neither the end nor the beginning of the end. A very big constitutional debate lies ahead. We are at an early stage in all of that but it is a profoundly important, historic stage in Scotland's future. There is a great responsibility on all of us who share the view that we should work powerfully together to prevent Scotland's separation and block independence. I believe it is impossible to overstate the importance of this. If we pull together as Liberal Democrat, Labour and Conservative representatives to activate everyone in Scotland who opposes independence—and there are many, I believe—the campaign can and should be won. These are defining times for our nation’s future, and this Bill must act not just as a foundation but as a launch pad for a strong and effective cross-party campaign to keep Scotland as part of the United Kingdom.