Children and Young People (Scotland) Act 2014 (Consequential and Saving Provisions) Order 2015

Lord Wallace of Tankerness Excerpts

Tuesday 17th March 2015 Grand Committee

[Lord Wallace of Tankerness]

That the Grand Committee do consider the Children and Young People (Scotland) Act 2014 (Consequential and Saving Provisions) Order 2015.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, this draft order is made under Section 104 of the Scotland Act 1998. In summary, it proposes to do three things. Before explaining them in some—I am afraid—unavoidable detail, I would summarise them thus. First, we propose to amend Section 44 of the Children (Scotland) Act 1995 for the rest of the United Kingdom, with a related saving provision. Secondly, we propose to amend the definition of “child” for the rest of the United Kingdom in relation to the amended Section 44. Thirdly, we wish to make a minor corrective amendment to the definition of “secure accommodation” in the Criminal Procedure (Scotland) Act 1995 for the rest of the United Kingdom.

On the first of those, Section 44 of the Children (Scotland) Act 1995, which I shall refer to as the 1995 Act, makes provision to prohibit the publication of proceedings at children’s hearings and certain related proceedings before a sheriff. Section 44 was repealed, as it extends to Scotland, by the Children’s Hearings (Scotland) Act 2011 and replaced for cases going forward under that Act by a similar provision made in Section 182 of the 2011 Act. However, it is now clear that Section 44 is still needed to ensure that it continues to be an offence for a person to publish relevant information in relation to historic children’s hearings cases dealt with under the 1995 Act, and cases which began under the 1995 Act system and continue to proceed under that Act by virtue of the transitional arrangements.

The draft order is made in consequence of the Children and Young People (Scotland) Act 2014, which I shall refer to as the 2014 Act and which now reverses for Scotland the unintended repeal of Section 44 of the 1995 Act. I wish to reassure the Committee that while it is evident that the repeal of Section 44 was an error, no child’s welfare was jeopardised by it as the repeal was not commenced when the rest of the 2011 Act was commenced—the error having been identified before the commencement order. The 2014 Act also amends Section 44 for Scotland so that, going forward, it applies only to exclusion order proceedings under Section 76 of the 1995 Act. This is required as those proceedings remain under the 1995 Act and are not covered by the 2011 Act.

Given the United Kingdom extent of Section 44 of the 1995 Act, the draft order is required to give effect in the rest of the United Kingdom—that is, outwith Scotland—to both the amended version of Section 44, to restrict its future application to exclusion order proceedings under Section 76 of the 1995 Act, and to save the former version of Section 44 for both historic and ongoing children’s cases under the 1995 Act.

The second matter proposed is a related amendment to the definition of a child in Section 93(2) of the 1995 Act. Section 52(b) of the Criminal Justice (Scotland) Act 2003 made a change to the definition of child in Section 93(2) for the purposes of Section 44 of the 1995 Act, so that it was extended from persons under the age of 16 years to persons under the age of 18. However, that change was not extended to England, Wales and Northern Ireland. Just as the draft order seeks to bring the existing parallel texts of Section 44 into line, it seeks to have the same definition of child for Section 44 purposes for all jurisdictions.

Thirdly, the draft order also corrects a minor error made by the Section 104 order made in consequence of the 2011 Act. The previous Section 104 order amended Section 44(11) of the Criminal Procedure (Scotland) Act 1995 by substituting the definition of “secure accommodation” with a new definition that took into account the most up-to-date statutory cross-references for Scotland, England, Wales and Northern Ireland. However, the substituted definition contains an undefined reference to the “2000 Act”. The 2014 Act corrects this for Scotland by clarifying that the reference is to the Care Standards Act 2000. The draft order makes the same clarifications for the other jurisdictions.

This order again demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I can confidently say that this will be the last such order in this Parliament, so it may be for the interest of the Committee to note that 45 orders have been made under the Scotland Acts of 1998 and 2012 in this Parliament, since May 2010. In your Lordships’ House, 27 of these have been subject to the affirmative resolution procedure. There was an extra one in the other place which related to bonds, and therefore did not require to be affirmed by your Lordships’ House, and 17 of them were subject to the negative resolution procedure. That is indicative of the way in which the devolution settlement is flexible, and indeed of the commitment on the part of the Government to work to ensure that legislation passed in Scotland is applicable in other parts of the United Kingdom and that the devolution settlement works.

With that, I thank the officials in the Scotland Office, in various departmental offices and, not least, in my own office of the Advocate-General, for all the work they have put into these, as well as officials in the Scottish Government, because it requires a lot of co-ordination to get these orders to be brought forward and there has been a lot of co-operation here. I also thank the noble Baroness—I think this is the second time she has done a Scotland Act order—and her other colleagues, not least the noble Lord, Lord McAvoy, who I saw up until just a moment ago was engaged in the Chamber on the Corporation Tax (Northern Ireland) Bill. I appreciate the constructive co-operation they have given, and with those words I commend the order to the Committee.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his explanations, which are helpful. We support what seems to be the tidying up and correcting of some anomalies in the legislation. I also thank him for his generous comments. I know that he will have been somewhat surprised to see me here again today, having been expecting my noble friend Lord McAvoy, who discovered at the last minute that he was unable to be in two places at once. His skills extend some distance, but he could not quite achieve that. I will pass on the noble and learned Lord’s comments to him, and I know that he will welcome them. He has always found the Minister to be very co-operative and willing to engage in discussion of issues, which is appreciated. Again, the Minister will be surprised to see me—this is the second order I have done. My link is that I have a Scottish mother and I spent a lot of my childhood in Scotland; that alone does not qualify me, but I hope that it helps.

I have a couple of questions on this. I appreciate that Section 44 was repealed in error and that this is a step to correct that—to which we give our full support. When was it recognised that the mistake had been made? Was the issue ever raised in debates as the Bill was going through? The comments the noble and learned Lord made were helpful when he said that the repeal was not commenced, so no child had suffered as a result of that. That is clear, and it is helpful to have that information. However, for it not to be commenced, it must have been recognised very soon afterwards at least that there was a problem and that it should not have been repealed. Perhaps the Minister can help us by saying when that came to light; that is the only question we have on that. Overall, we support the order before us today.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness for her kind comments. I, too, know the tremendous talents of the noble Lord, Lord McAvoy, but being in two places at once probably defeats him.

The noble Baroness asked when it was recognised that a mistake had been made. Clearly, it was not recognised during the passage of the Bill, otherwise up until the final stage 3 in the Scottish Parliament it would have been possible to move an amendment. However, it was recognised before the Act was commenced in 2013. The error was noticed between the passage of the 2011 legislation and its commencement: therefore, when the commencement was done, it did not commence the repeal provision. When the Section 104 order, which was consequential to the 2011 Act, was brought before this Parliament, the error had been noted by then, so in no way did we seek to extend the appeal provisions to England, Wales and Northern Ireland. I repeat the assurance that because of that and because of the lack of commencement, no child has had their interest jeopardised.

Motion agreed.

Scotland: Constitutional Settlement

Lord Wallace of Tankerness Excerpts

Tuesday 10th March 2015 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what assessment they have made of the public reaction to their Command Paper Scotland in the United Kingdom: An enduring settlement.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the Government welcome feedback on the draft clauses as we continue to refine the draft legislation. We are holding events across Scotland to enable stakeholders to provide feedback on the draft clauses and how the new powers might be best used. Four events have taken place to date, with a further event in the borders later this month. Representatives from a wide range of sectors are participating, including from business, the voluntary sector, universities and schools.

[Lord Lexden (Con)]

Can my noble and learned friend explain how the Government’s proposals will provide a basis for an enduring settlement when the Scottish National Party is demanding yet further concessions? Is it not obvious that we need a new constitutional settlement, an explicitly unionist settlement, for our entire country, not further piecemeal changes in different parts of it, devised with short, artificial deadlines? When will our national leaders of all parties summon up the eloquence and conviction that is needed to make the case for an enduring union, which so many of us in this House, in the other place and throughout our country hold so dear?

[Lord Wallace of Tankerness]

I entirely agree with my noble friend on that need. The best way forward is to have an enduring union, to which I am certainly committed. The proposals in the White Paper which the Government produced at the end of January give effect to the agreement reached under the commission chaired by the noble Lord, Lord Smith of Kelvin. Not to have acknowledged and fulfilled the commitment given to the electorate would have been more damaging to the union. I have taken part in numerous debates in your Lordships’ House where noble Lords from all sides have called for a constitutional convention. That may well be the way forward after the election.

[Lord McAvoy (Lab)]

My Lords, on behalf of the Labour Party, I welcome the noble and learned Lord’s further commitment to the Smith commission’s proposals for devolution. If elected in May, the Labour Government will be committed to including the home rule Bill in their first Queen’s Speech and introducing it in their first 100 days. The Smith commission also expressed a strong desire for further devolution within Scotland. Do the Government have any proposals for ideas at this stage to ensure that devolution does not stop at the Scottish Parliament but goes further through Scottish public life?

[Lord Wallace of Tankerness]

My Lords, I welcome the noble Lord’s commitment on behalf of his party. It is important to say that all three United Kingdom parties have undertaken to make that commitment in their respective manifestoes. I also share the noble Lord’s view that devolution should not stop at Edinburgh, not least because in the constituency which I used to represent, there is a very strong view that there should be devolution within Scotland. Most of the powers to do that rest with the Scottish Parliament and the Scottish Government, but in public debate we should be making that point very clearly because we have had considerable centralisation under the present SNP Administration.

[Lord Stephen (LD)]

My Lords, does my noble and learned friend not agree that these are radical proposals, which represent a major step forward in the government of Scotland and which have been widely welcomed by most people in Scotland, except the SNP? It must always be remembered that the SNP was part of the Smith commission that signed up to these proposals and agreed them unanimously, then started to rubbish them as soon as they were announced. Does he not agree that this represents a far better, safer, more secure future for Scotland than independence based on an oil price of $110 a barrel, when today the price is less than $60 and sliding further?

[Lord Wallace of Tankerness]

My noble friend is right to remind us of what we might have been facing if Scotland had voted yes and of the black hole which would have emerged. It is also important that we continue that engagement; certainly, at the stakeholder event which I attended in Aberdeen there was considerable enthusiasm for the proposals that have been put forward. People very much welcomed the fact that the United Kingdom Government were engaging but it is important that the Scottish Government engage as well.

[Lord Wigley (PC)]

My Lords, to what extent does the noble and learned Lord accept that opinion polls in Scotland are a reflection on the reaction to this document? Have the Government ruled out any form of federal solution that brings stability with it and if there is to be a convention, can he give some assurance that it will not take as long as the investigation by the Kilbrandon commission, which took more than five and a half years and just kicked the problem into the long grass?

[Lord Wallace of Tankerness]

My Lords, the noble Lord knows the position of my own party with regard to federalism but we are not there yet. However, I believe that by implementing the recommendations of the Smith commission in these proposals, we will ensure that we are honouring our commitment. I take his view that a constitutional convention should not be an excuse for kicking this issue into the long grass. I was a member of the Scottish Constitutional Convention, which produced the blueprint for the Scottish Parliament that was legislated for by the Labour Government in 1997.

[Lord Forsyth of Drumlean (Con)]

My Lords, can my noble and learned friend tell me how he thinks the strategy of piecemeal devolution in Scotland in order to kill nationalism stone dead is going?

[Lord Wallace of Tankerness]

My Lords, when the Scottish Parliament was established, many of us recognised that more would need to be done in due course. There was at that time recognition that we needed greater financial accountability because it is not healthy to have a Parliament that had total discretion as to how it spent money but little or no discretion as to how it raised that money. It was important that we recognised that in the 2012 Act which this Parliament passed, and the proposals that we have now strengthen that position.

[Lord Soley (Lab)]

I do not think we should forget that the no vote won in Scotland, or those people who voted no. Does the Minister agree that a constitutional convention is so important because we need to devolve power throughout the UK and doing that would change the nature and role of this House and the House of Commons? If we are to get that right, we need to take our time and give it a lot of thought.

[Lord Wallace of Tankerness]

My Lords, the noble Lord is absolutely right to remind us that the no vote won. It won by more than 10%, which was a clear margin. He is also right to say that in looking at these issues it is not only important that we get it right but that it is seen to be equitable to all parts of the United Kingdom, and indeed strengthens rather than weakens the union.

[Lord Tebbit (Con)]

My Lords, is it credible to put forward a policy that we will make our government of this country more effective by having more layers of government, with more Members of various Parliaments, councils and other strata of government, and more officials? That does not quite make sense, does it?

[Lord Wallace of Tankerness]

My Lords, there is nothing in the proposals that were in the agreement of the Smith commission and the draft clauses that would add another layer of government. The premise of my noble friend’s question is wrong.

[Lord Lang of Monkton (Con)]

My Lords, as this is the third enduring settlement that has been offered in the past 17 years to strengthen the union through devolution, and as three of the signatories of the Smith convention moved on rapidly, using it as something of a stepping stone to demand further change, does my noble and learned friend not agree that what is on offer is not so much an enduring settlement as a springboard to separation? I echo the words of my noble friend Lord Lexden to emphasise that this matter has not been properly debated in the United Kingdom context and that before anything else happens it should be fully debated in both Houses of Parliament, with the United Kingdom’s interests put to the fore?

[Lord Wallace of Tankerness]

My Lords, as I indicated in my answer to my noble friend Lord Forsyth, no one actually accepted that the 1997 or 1998 Acts were the final word. Clearly more needed to be done to ensure financial accountability; that is something that I hope that my noble friend would probably endorse as a good, democratic principle. These are matters that should be debated by the United Kingdom Parliament; it has heard that all three United Kingdom parties are committed to a Bill being brought forward after the Queen’s Speech, when there will be ample opportunity for debate.

Scotland Act 1998 (Modification of Schedule 5) Order 2015

Lord Wallace of Tankerness Excerpts

Wednesday 4th March 2015 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the Scotland Act 1998 (Modification of Schedule 5) Order 2015

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, this draft order will devolve competence to the Scottish Parliament so that it can enact legislation about certain safety measures in relation to all dedicated school transport in Scotland. I will give the Committee a brief explanation of how the draft order achieves this and why it is felt to be an appropriate and sensible use of the powers under the Scotland Act 1998.

The draft order is made under Section 30(2) of the Scotland Act 1998. Section 30(2) provides a mechanism whereby Schedule 4 or Schedule 5 to that Act can be modified by an Order in Council, subject to the agreement of both the UK and Scottish Parliaments. I am sure the noble Lord, Lord McAvoy, will recall that we debated a similar order on the Floor of the House last week.

The draft order will amend Part 2 of Schedule 5 to the Scotland Act 1998 to make an exception to the road transport reservation in Section E1 of Schedule 5 to that Act. The amendment will devolve power to the Scottish Parliament to legislate in relation to the regulation of the description of motor vehicles, by reference to their construction and equipment, which are used to transport pupils and students in Scotland to and from places where they receive education or training, such as schools and colleges.

There is an ongoing petition before the Scottish Parliament’s Public Petitions Committee that calls for provision to be made to ensure that every school bus in Scotland is installed with three-point seatbelts for every school child passenger and to ensure that proper regard is given to the safety needs of the children. Although it is the Scottish Government’s current position that the specific terms of dedicated school bus contracts are matters for individual local authorities, in an approach consistent with the petition I have just mentioned, Scottish Ministers have indicated that they intend to introduce legislation with the aim of ensuring that it becomes a requirement for seatbelts to be installed on all dedicated school transport in Scotland. This order will confer legislative competence on the Scottish Parliament to allow them to do so.

Once again, the order demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope the Committee will agree that this order is a reasonable use of the powers in the Scotland Act 1998. The draft order has passed Committee stage in the Scottish Parliament and we expect that Parliament to conclude its scrutiny by 19 March 2015. The other place is expected to consider this draft order in two weeks’ time. I commend the order to the Committee and I beg to move.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister and his staff for making sure that I was kept informed. He mentioned last week’s debate on the Floor of the House. Perhaps in future he should consider a joint invitation to the noble Lord, Lord Forsyth of Drumlean, to come along and liven up the proceedings. That would probably put the Minister in the position that he would expect—and get—the Labour Party to ride to his rescue, as we did last week.

The Minister is absolutely right: this is continuing support for the devolution settlement, which I am glad the current Government are continuing. He has outlined it. There is no need to go over it again. We support the order.

[Lord Wallace of Tankerness]

My Lords, as ever, I am grateful for the noble Lord’s support.

Motion agreed.

Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015

Lord Wallace of Tankerness Excerpts

Wednesday 4th March 2015 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the main purpose of the order is to give full effect to the Courts Reform (Scotland) Act 2014, which I shall refer to as the 2014 Act, and to make provision where the Scottish Parliament does not have the legislative competence to do so.

The order is made under Section 104 of the Scotland Act 1998 and makes necessary or expedient legislative changes in consequence of the 2014 Act. It is quite technical in nature. It maintains the status quo and ensures that courts in Scotland retain their specific powers in relation to devolved and reserved matters.

To provide noble Lords with some background, the 2014 Act implements the majority of the recommendations of the Scottish civil courts review of 2009, which was an independent review chaired by Lord Gill. As the Committee may know, Lord Gill was at the time of the review the Lord Justice Clerk of Scotland and is now the current Lord President of the Court of Session.

The 2014 Act is intended to make the civil justice system in Scotland more efficient, with most of that Act focusing on a restructure of the civil courts system in Scotland. The 2014 Act makes some additional provisions relating to criminal matters.

From 1 April this year, the functions of the Scottish Tribunals Service will be transferred to the Scottish Court Service as a result of provision within the 2014 Act, and that Act will rename the Scottish Court Service the Scottish Courts and Tribunals Service. It is intended that this transfer will protect the independence of the administration of devolved tribunals by separating it from the Scottish Government. It will also create a joint independent administration for both courts and tribunals, with one board chaired by the Lord President as head of the judiciary for both courts and tribunals.

The Pensions Appeal Tribunal for Scotland, or PATS, was established under the Schedule to the Pensions Appeal Tribunals Act 1943. While pensions are a reserved matter, PATS is currently administered by the Scottish Tribunals Service, since the non-statutory function of providing administrative support was executively devolved to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999. The order before us transfers the administration of PATS from Scottish Ministers to the Scottish Courts and Tribunals Service.

Section 2 of the 2014 Act updates existing powers to alter sheriffdoms and sheriff court districts in Sections 2(1) and 3(2) of the Sheriff Courts (Scotland) Act 1971. The order consolidates and re-enacts the compensation provisions in those sections and permits the Scottish Courts and Tribunals Service to pay compensation for loss of office or loss or diminution of emoluments in consequence of an order made under Section 2 of the 2014 Act.

Currently, the Court of Session may make rules to regulate procedure and fees in both the Court of Session and the sheriff court, and it is important that the Court of Session still has this ability both for reserved matters and those which are devolved. The principal powers under which these rules are made are contained within the Court of Session Act 1988 and the Sheriff Courts (Scotland) Act 1971. As powers which were conferred on the court by pre-devolution statutes, these rule-making powers cover both reserved and devolved matters. This means that the court has been able to make special rules governing practice and procedure in relation to reserved areas of the law such as immigration, financial services and terrorism.

The court’s rule-making powers are now to be contained in the 2014 Act, but, because of the current legislative competence arrangements, that Act can provide the rule-making power only for matters which are devolved. Accordingly, the order provides that these powers may be used to make provision which relates to a reserved matter, or which modifies the law on reserved matters; that is, provision modifying existing special rules relating to reserved matters. This preserves the pre-existing ability of the court to regulate practice and procedure regardless of whether the subject matter of the proceedings in question is devolved or reserved.

While the 2014 Act provides for the Lord President of the Court of Session to direct certain categories of sheriff court case as suitable to be dealt with by specialist judiciary, and for the Lord President or the sheriff principal of a sheriffdom to be able to designate particular members of the sheriff court judiciary as specialists in one or more areas, the order provides for these powers to be exercisable in relation to categories of case which relate to reserved matters.

Similarly, while the 2014 Act inserts new sections into the Court of Session Act 1988 to include the application of a second appeals test applying to applications for review of decisions of the Upper Tribunal for Scotland, the order extends these provisions to apply to the UK Upper Tribunal.

The 2014 Act provides that civil proceedings which a sheriff has competence to deal with, and in which orders of value are sought of an aggregate value which does not exceed £100,000, may be brought only in the sheriff court. However, this order prevents the 2014 Act applying to proceedings for the winding-up of a company, with the consequence that such proceedings will remain competent in the Court of Session regardless of any order for value sought.

Finally, the order makes consequential modifications to existing UK legislation. For example, the House of Commons Disqualification Act 1975 and the Northern Ireland Assembly Disqualification Act 1975 are each amended to reflect the abolition of the office of stipendiary magistrate and the introduction of new judicial offices of summary sheriff and part-time summary sheriff in the 2014 Act.

A further example of the consequential modifications made by the order is that, as the 2014 Act has repealed several pieces of legislation in so far as Scots law is concerned, it replicates these repeals for the rest of the UK, thus tidying up the UK statute book. A specific example of this is the repeal of the Judicial Offices (Salaries, etc.) Act 1952 by the 2014 Act. This order replicates those repeals for the rest of the UK.

I consider this order to be a sensible use of the powers under the Scotland Act 1998 and it once again demonstrates this Government’s continued commitment to working with the Scottish Government to ensure that the devolution settlement works. I therefore commend the order to the Committee. I beg to move.

[Lord McAvoy (Lab)]

Again, I place on the record my thanks to the noble and learned Lord and his staff for keeping me fully informed. It is with trepidation that I set foot in a Room when an order mentioning emoluments and compensation for legal people is being discussed. I am not that brave and prepared to tread that ground too much.

The noble and learned Lord says that is sensible devolution. It is a steady process that is working well and, on behalf of the Opposition, I fully endorse the order.

Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015

Lord Wallace of Tankerness Excerpts

Thursday 26th February 2015 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the draft Order laid before the House on 20 January be approved.

Relevant documents: 20th Report from the Joint Committee on Statutory Instruments, 25th Report from the Secondary Legislation Scrutiny Committee, 9th Report from the Constitution Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, as the House well knows, on 18 September last year the people of Scotland, including tens of thousands of 16 and 17 year-olds, voted in the Scottish independence referendum and made the historic decision that Scotland should remain part of the United Kingdom. The participation of our young people in that vote was truly historic. They showed that they were more than capable of being part of Scottish democracy when they helped their country to take the biggest decision we have faced for centuries. It demonstrated a desire to be involved in an event which would shape the future of their country.

In the run-up to the referendum, pledges were made to the people of Scotland. The three pro-union parties—the Conservative Party, the Labour Party and the Liberal Democrats—all made a vow to devolve further powers to the Scottish Parliament, should Scotland remain within the United Kingdom, thereby ensuring that Scotland retains the best of both worlds. In keeping with that vow, the day after the referendum the Prime Minister made the announcement that the noble Lord, Lord Smith of Kelvin, had agreed to lead a commission to agree what those new powers should be. The commission would work with the five parties represented in the Scottish Parliament to make that determination.

The commission invited submissions from political parties, a wide range of business and civic organisations and the wider public to help guide its consideration of what further powers should be devolved to the Scottish Parliament. Following due consideration of all submissions and views garnered by the commission, on 27 November 2014 the report detailing the heads of agreement was published. That report was welcomed by this Government, and, as this House is aware, on the 22nd of last month we published the draft clauses which will make up the substance of the next Scotland Bill to implement the recommendations in that report.

However, one of the recommendations made by the commission is being taken forward separately from that Bill: the recommendation that the United Kingdom Parliament devolves the relevant powers in sufficient time to allow the Scottish Parliament to extend the franchise to 16 and 17 year-olds for the 2016 Scottish parliamentary elections, should the Scottish Parliament wish to do so. That is exactly what this draft order seeks to achieve. Not to have taken this forward now, by means of this order, would have risked the Scottish Parliament having insufficient time to bring forward any subsequent legislation, should it choose to do so, to implement it and to have any necessary measures in place well in time for the 2016 Scottish parliamentary elections.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble and learned friend for giving way. The document to which he referred, Scotland in the United Kingdom: An Enduring Settlement, published in January, suggested that the alterations to the franchise should require a supermajority of two-thirds in the Scottish Parliament. The order being presented today bypasses that. If it was thought appropriate to have a supermajority to change the franchise in January, why is it not thought appropriate in February?

[Lord Wallace of Tankerness]

My Lords, that point was made by the Constitution Committee of your Lordships’ House, and I will deal with it when I come to deal with the points made by the committee in its report, published earlier this week.

The draft order is made under Sections 30 and 63 of the Scotland Act 1998, the Act that set out the original devolution settlement for Scotland and that continues to demonstrate that devolution is remarkably resilient and flexible. Several Section 30 and Section 63 orders have been made under that Act and, even with the new upcoming Bill, we do not expect that to change. Where a need for change is identified and agreed, those changes will be made by the most appropriate means.

By virtue of Section 30 of the Scotland Act 1998—which I shall refer to as the 1998 Act—this draft order will give the Scottish Parliament the power to legislate to reduce the minimum voting age to 16 at elections to the Scottish Parliament and to Scottish local government elections. The Scottish Parliament will also be given the power to legislate to make provision about the registration of electors in order to give effect to any such reduction in the minimum voting age. However, I wish to be clear that the draft order itself does not actually reduce the minimum voting age to 16 at both of these elections. Rather, it paves the way, by conferring the necessary legislative competence on the Scottish Parliament, to make the necessary legislation to achieve this, should it choose to do so.

Section 63 of the 1998 Act allows for an Order in Council to provide for any functions, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable by the Scottish Ministers concurrently with the Minister of the Crown. This draft order will give the Scottish Ministers the ability to exercise certain functions relating to the individual electoral registration digital service—which I shall refer to as the digital service—in or as regards Scotland, when giving effect to provision reducing the minimum voting age to 16 in Scottish Parliament or Scottish local government elections or both. Provision relating to the use of the digital service for applications for registration, or for verifying information contained in applications for registration, is otherwise reserved to the United Kingdom Parliament.

The draft order will also have the effect that, if the Scottish Ministers exercise the functions given to them in relation to the digital service, in certain cases the requirement to consult the Electoral Commission and the Information Commissioner, and to publish reports prepared by the Electoral Commission, will apply to the Scottish Ministers. I would like to make it clear that the Scottish Ministers will be able to exercise these functions given to them by virtue of this draft order concurrently with UK Ministers and subject to the agreement of a Minister of the Crown.

I appreciate that concerns about the draft order have been raised by the Constitution Committee of your Lordships’ House, and I turn to these now. A question was raised about the propriety of using Section 30 of the 1998 Act to make this change. As I have already stated, several orders have been made under Section 30 since 1999, and it is right that they should have been. Section 30 is a tailor-made power for altering, by an Order in Council, the legislative competence of the Scottish Parliament without the need for primary legislation. Section 30 orders, as they are known, are part of the agreed process set out in the 1998 Act. That Act, including that particular process, was fully scrutinised, and the Section 30 process approved, by this Parliament. Therefore, the use of a Section 30 order is an entirely appropriate way to take forward this matter.

Again, I remind your Lordships that it would not have been possible, in the time available, to deliver this important aspect of the Smith commission agreement if the provisions had been contained in a Bill to be brought forward after the next general election. Any consequent legislation brought forward by the Scottish Parliament to reduce the voting age to 16 for Scottish Parliament and Scottish local government elections will be scrutinised by the Scottish Parliament in the normal way.

On the point raised by my noble friend Lord Forsyth, the committee queried whether or not it was appropriate that this order does not include the supermajority procedure requirement. The order delivers the recommendation in the Smith commission which was agreed by all five political parties represented in the Scottish Parliament. Paragraph 25 of the agreement states that the Scottish Parliament should be given the power to legislate to enable 16 and 17 year-olds to vote in time for the 2016 Scottish Parliament elections should it choose to do so. The five parties represented in the Scottish Parliament which agreed this issue during the Smith process will therefore be responsible for bringing forward this change in that Parliament, should they choose to do so. This is a question not even of consensus but of unanimity. I am advised that earlier this morning the Devolution (Further Powers) Committee of the Scottish Parliament unanimously recommended that the Scottish Parliament approve this order. No other change to the operation and structure of the Scottish Parliament has that political consensus at the present time.

These are matters for future Scottish Parliaments to debate and any such change will, as my noble friend pointed out, be subject to a supermajority provision. However, we are talking about a recommendation that came forward from the Smith commission which commands unanimous support within the Scottish Parliament. We therefore believe it is not necessary to include a supermajority provision in the current order.

[Lord Forsyth of Drumlean]

My noble and learned friend is saying to the House that the reason that no supermajority provision is required is because it was a recommendation from the Smith commission. However, this document, An Enduring Settlement, which was the Government’s response to the Smith commission, said that there should be a supermajority for changes to the franchise or important constitutional changes. He has not explained why he has changed the Government’s position in a matter of weeks.

[Lord Wallace of Tankerness]

My Lords, the Government’s position has not changed. My noble friend will have heard that I said in my first paragraph in moving this order that it was laid before the House on 20 January 2015. That was before these clauses were published. It was always clear that there was not going to be a supermajority requirement for the order, which is on a proposal that commands unanimous support in the Scottish Parliament. There are further technical issues. The clause that deals with the supermajority is somewhat complex and would have led to unnecessary complexity in an order for which there is unanimous agreement that it should go forward.

I do not believe that it was ever the intention that this order would require the supermajority provision. To have done so might have led to accusations that we were going back on something that had been agreed. It was announced early on, before the clauses were published, that we would proceed by way of a Section 30 order to meet not only the spirit but the specific recommendation of the Smith commission that this part of the agreement should be taken forward ahead of the Bill to implement other aspects of it.

It is noted in the Constitution Committee’s report that the change made by this order does not directly affect the franchise for UK general elections, European parliamentary elections or local government elections beyond Scotland. Therefore the order has no direct constitutional implications for the rest of the United Kingdom. I emphasise that the power to set the franchise for voting in United Kingdom parliamentary elections will remain with this Parliament. It is not the Government’s policy to do that—indeed, it would be impossible—for the next general election in the four or five weeks that are left.

While the committee raises concerns that any reduction in the voting age in Scottish Parliament and Scottish local government elections may lead to pressure to extend the franchise for other elections, this is not exactly a new debate. Indeed, some parties represented in your Lordships’ House and one of the parties in the coalition—my own—believe that there should be a change in the franchise: it is not a new debate. During the debate on the order in the House of Commons, this was seen to be a positive development. While there may not be a consensus in this Parliament at the present time for changing the franchise for general elections, I am sure the debate will continue.

Rather than devolve only the powers necessary to allow 16 and 17 year-olds to participate in the 2016 and subsequent Scottish Parliament elections, as the committee pointed out the draft order devolves the power to enable the Scottish Parliament to legislate to lower the voting age to 16 in time for the 2017 local government elections in Scotland if it so desires. I can hear a Member saying that this was not in the Smith report. I was just going to explain why it is being done, albeit that it was not in that report. It is another very sensible, practical thing and the Government should be given credit when they do such things. The draft order does, indeed, go further than is specified in the Smith report but in terms of timing only. Unlike with Scottish Parliament elections, the noble Lord, Lord Smith, did not specify the timescales within which the Scottish Parliament should be given the power to enable 16 and 17 year-olds to vote in local government elections. However, the commission did recommend that:

“The Scottish Parliament will have all powers in relation to elections to the Scottish Parliament and local government elections in Scotland”.

The order clearly does not go beyond that overall recommendation.

Including the power to enable 16 and 17 year-olds to vote in Scottish local government elections in this order was felt to be beneficial and practical for two reasons. First, there is an issue of timing. If the Scottish Parliament wished to take forward such legislation, then the timing of the forthcoming Scotland Bill would make it very challenging to devolve the necessary powers in sufficient time for the Scottish Parliament, in turn, to legislate in time for the Scottish local elections in May 2017 without breaching normal electoral guidelines. Secondly, the franchise for the Scottish Parliament election is currently the same as that for the local government franchise and the former is set by reference to the latter.

Devolving only the legislative competence to reduce the minimum voting age for Scottish parliamentary elections would have meant that the Scottish Parliament would have needed to separate the Scottish Parliament franchise from the local government franchise. That would have introduced unnecessary complications into the registration system. In the absence of a strong policy reason to make the two franchises different, there seems no reason to separate them when all it would bring is unnecessary cost and complication for electoral administrators and potential confusion for electors.

Finally, the committee raised the issue of data protection and individual electoral registration, particularly in connection with individuals under the age of majority. Enacting provisions to protect the data of the prospective young voters is part of the implementation of the order. The Scottish Parliament is well aware of its obligations under the Data Protection Act 1998 and, generally, to adequately safeguard the information provided for, and used in, the process of registering electors. Further, as already mentioned, this draft order will give the Scottish Ministers the ability to exercise certain functions relating to the digital service. I can assure noble Lords that all information used by this system is treated appropriately and is adequately protected. The service is the name given to the series of interlocking digital systems which allow applications to register as an elector to be made online and for the personal information given by applicants to be verified against government data. It comprises the online application service, the secure environment which receives and directs data, secure connections to electoral registration officers and to the Department for Work and Pensions, the DWP processing environment and the interface with electoral registration officers’ election management software.

The other place approved this draft order on 2 February. If the approval of this House and the Scottish Parliament are also secured, then the order will go forward for consideration by Her Majesty in Council. When the order comes into force, the Scottish Parliament will have the legislative competence to bring forward the legislation necessary to allow 16 and 17 year-olds to vote in all Scottish Parliament, Scottish local government elections or both. The United Kingdom Government have fast-tracked devolving the power for this as an exception to the rest of the Smith package so it can be in place in time for 16 and 17 year-olds to vote in the 2016 Scottish parliamentary elections and the 2017 Scottish local government elections. It is my understanding that the Scottish Government intend to introduce this legislation, to lower the voting age, in the Scottish Parliament as soon as possible once this order has been made by the Privy Council. I commend the order to the House.

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend is seriously misinformed on this matter. If he looks at the Smith commission’s report, he will see the principles that guided the commission, which included “no detriment” to other parts of the United Kingdom. That was one of the principles which all parties to the Smith commission agreed to and which informed the proposals with which it came forward. He is absolutely wrong to say that there was no regard to other parts of the United Kingdom.

[Lord Forsyth of Drumlean]

In which case, why on earth are we still retaining the Barnett formula and allowing Scotland to raise its own tax, if the principle was that there was “no detriment” to the rest of the United Kingdom? There was no representation from anyone from the rest of the United Kingdom; it was the political parties in Scotland looking at the position in Scotland.

My noble and learned friend, who is a very clever lawyer, is making a quite separate point. You can look at what is in the interests of Scotland in such a way that it creates no detriment to the rest of the United Kingdom, but that is not the same thing as looking at the interests of the United Kingdom as a whole and considering the knock-on implications. That is a matter for this House and, more particularly, the other place but they are being given no opportunity to debate and consider it. In the case of the changes to local government there has been no opportunity for anyone in Scotland, in the Scottish Parliament or anywhere else to consider that.

I return to my point. We had the Smith commission looking at Scotland. Then we had this ludicrous vow made in the last few days of the campaign—after I and many other people had voted, because many people voted by post. It was done without consultation with the party leaders in Scotland, hence the leader of the Labour Party in Scotland resigned and described her party as being treated like a branch office. Our leader Ruth Davidson, who did such an excellent job in the referendum campaign, was not consulted. This was three privy counsellors on the phone, cooking up a scheme. We have not had that style of government, where privy counsellors could consult each other and create legislative change of this kind, since the days of Wolf Hall. We should be very concerned indeed by the way in which this matter has been done and brought forward.

Then we had the childish timetable where the Government were required to respond from September by St Andrew’s Night, and then from St Andrew’s Night we had to have draft clauses by Burns Night. This is pantomime politics. Not only did we have these draft clauses by Burns Night but, a week later, we had the architect—the hero—of saving the union, Gordon Brown, telling us all that what he had produced and agreed by Burns Night was no longer satisfactory and that we needed to do something else. This is riding for trouble. We should consider constitutional matters carefully and they should carry consensus. We should consider the implications for the United Kingdom as a whole. It should never be driven by political expediency or short-term political consideration.

--- Later in debate ---

[Lord McAvoy]

This is not about what Gordon Brown says now. I cannot deal with a matter that Gordon Brown has no influence on other than within the referendum campaign. What was said in the Smith commission is agreed. Perhaps the noble Lord, Lord Forsyth, will send me these alleged quotes from Gordon Brown and let us move on. I remind the House that it was the disparaging remarks about Gordon Brown from the Benches opposite that inspired my defence of him. I will always come to his defence.

My noble friend Lord Reid is right: there may have been panic in London—I am not party to the higher echelons of power in London—but in the political parties in Scotland there was no panic. There were the strident calls of the SNP and its negative reaction to the referendum result, but that was it.

It is quite clear that the changes proposed in this order are welcome in Scotland. I am Scottish and involved in Scotland and I know that the order is welcome, and it is right that the Secretary of State has brought it forward. As I have said, the noble Lord, Lord Lang of Monkton, has done the House a service by raising these issues and allowing the Minister to respond to them. I make it absolutely clear—even if it invites further interventions—that we are fully behind this order. It reflects the Smith commission recommendations and the requests in Scotland that we should do this, and it is right that the Scottish Parliament should have the power to do so. It is also right and logical that the Scottish Parliament should be given the power to alter the franchise for local government elections.

I hope that we can move forward with consensus and use the consensus that exists in Scotland. Everyone knows that relations between the Labour Party and the Liberals have not always been consensual; the Conservative Party has certainly never been too consensual —especially when the noble Lord, Lord Forsyth, was Scottish Secretary, but I will not dwell on his guilty past—but the consensus is there. Without any doubt we fully support the order and wish to place that on record.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part in this robust and good natured debate. The noble Lord, Lord Forsyth, may have got a lot of things out of his system about the vow and so on, but I suspect that, when we come back after the election, at the Second Reading of the Scotland Bill which will bring forward the clauses, we will have a reprise of his speech and there will be even more things for him to get his teeth into.

The debate has ranged widely, from Wolf Hall, to the Stone of Destiny, to the roll of honour of those who took part in supporting the no campaign during the referendum. A number of important points have been made—for example, the one put succinctly by the noble Lord, Lord Reid of Cardowan, in his intervention on my noble friend Lord Stephen. There are inconsistencies in the things you can do at 15, 16, 17 and 18. You can get married and join the Armed Forces at 16, but the ages for driving and buying cigarettes are different. The order is not about ironing out these inconsistencies. An overview of the differences is for another time and another place; it is not what this order is about.

There was a degree of consensus around your Lordships’ House on the merits of a constitutional convention or convocation, which included the noble Lords, Lord Empey and Lord Maxton, and my noble friend Lord Forsyth, who pointed out that my own party supported it. It is not going to happen this side of the general election—it cannot practically be set up in the next three or four weeks—but, post-election, it is almost inevitable in some form. It will involve not only the political parties but civic communities, which is important, but that is for the other side of the election. It has happened before. In the debate we had in October after the referendum, views from different parts of the United Kingdom and from different parties were expressed about the importance of a constitutional convention.

One of the other themes was the thin end of the wedge, as it may be called. If voting at 16 happens in Scotland at the Scottish Parliament and Scottish local government elections, it may well happen elsewhere. My noble friend Lord Tyler made clear why he hopes that will be the case. With due respect to noble Lords who do not wish to see votes at 16, I could take technical shelter behind the fact that the order does not legislate for votes at 16 in Scotland for the Scottish Parliament; rather it confers the powers for the Scottish Parliament to do so. However, given that the Scottish Parliament has made it clear that it will do so I shall not hide behind the order, but it is important to remember technically what it does.

.

My noble friend Lord Stephen made the point that we have debated important issues, including the vow. It is quite clear that my noble friend Lord Forsyth does not like how we got here. I voted no, in spite of the vow, not because of it. I voted no because I wanted Scotland to remain part of the United Kingdom and I am delighted that we got the very convincing outcome to the referendum that we did. At the time, it was said that a vote for no was not a vote for no change. The noble Lord, Lord McAvoy, reflected that when he referred to the speech made by Mrs Margaret Curran in the other place. I will come on to the process in a moment.

[Lord Maxton]

I wondered whether the Minister voted by post before the vow, like the noble Lord, Lord Forsyth, and I did.

[Lord Wallace of Tankerness]

Yes, I did. I voted out of sheer conviction that the right thing to do was maintain Scotland’s place in the United Kingdom.

My noble friend Lord Stephen asked us to do a reality check on what we are about here. This is taking forward recommendations from the Smith commission. The Smith agreement is important, not least because it was endorsed by five political parties in the Scottish Parliament. Looking back, the Scottish Constitutional Convention engaged many parts of civic society in Scotland but, in terms of political parties, it included only the Labour Party, the Scottish Liberal Democrats, the Scottish Greens and the Scottish Socialist Party. It did not include two large parties: the Conservative Party and the Scottish National Party. The Calman commission, the recommendations of which led to the Scotland Act 2012, engaged the Labour Party, the Conservative Party and the Liberal Democrats, as well as others, but it did not engage the Scottish National Party. Here we have an agreement that has been fed into by representatives of five parties, including the Conservative Party, the Labour Party, the Liberal Democrats, the Scottish National Party and the Scottish Green Party.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend. How on earth can he say it included the Scottish National Party, which repudiated it as soon as it was published?

[Lord Wallace of Tankerness]

It is important to remember that the commission involved the Scottish National Party, which signed up to it. We are seeking, with this order, to implement one of the parts of that agreement. I have not heard anyone in this debate query whether we should be following this course. No one has acknowledged or faced up to the fact that, if this was done by primary legislation in a Bill after the general election, it would be almost impossible to do all the work required to get 16 and 17 year-olds onto the roll between Royal Assent—at the end of this year or even at the beginning of the next—and the election in May 2016. It was, therefore, necessary to do it by a Section 30 order. That order is what gave the Scottish Parliament the power to legislate for the referendum itself. No one has gainsaid that this is an appropriate way to honour the Smith agreement.

My noble friends Lord Forsyth and Lord Lang talked about some of the important data protection issues. My noble friend acknowledged that we are seeking to put in place some ways to take care of these. The order will allow the Scottish Government to set up their own system of identity checking for 14 and 15 year-old attainers and it will be for them to decide how this will be put into effect. I repeat what I said in my opening remarks: the Scottish Government are familiar with the Data Protection Act and must abide by data protection legislation. I recall that this important issue was raised when the legislation for the referendum was being drawn up. I have not since heard any complaints that proper procedures were not put in place to address these important issues.

The noble Lord, Lord Reid, and my noble friend Lord Forsyth spoke of an apparent inconsistency on the question of supermajority. As my noble friend Lord Stephen pointed out, it does not matter so long as you get to the end result and it is the right one. My noble friend Lord Forsyth quoted from page 17 of the command paper. That quote—which is in a box—is from the Smith commission agreement. The agreement itself does not suggest that there should be a supermajority for this one measure of extending the franchise to 16 and 17 year-olds and I do not recall anyone doing so. I know the logic that my noble friend Lord Lang and his committee pointed to, but my right honourable friend the Secretary of State announced very early on that we would deal separately with the power to extend the franchise to 16 and 17 year-olds and no one has suggested that the supermajority should apply to that. The Government’s position has not changed on that at any time.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend. I may be mistaken, but I thought that the Government published draft clauses that provided for a supermajority in these circumstances, in line with the Smith commission proposals. I thought I had asked him, at the Dispatch Box, why on earth we were introducing the alien concept of supermajorities and that the Government had defended it.

[Lord Wallace of Tankerness]

There is provision in the draft clauses for supermajorities covering a range of matters. The Smith commission recommended this but, so far as I can see, no one has ever suggested that it did so with regard to the extension of the franchise to 16 and 17 year-olds. The recommendation regarding extending the franchise for Scottish Parliament elections to 16 and 17 year-olds was a very separate one and we have proceeded on that basis. There has not been any switch in position, as has been suggested. As I indicated earlier, to include such a provision in the current order would involve detailed consideration on how to amend very key sections of the Scotland Act. For example, thought would have to be given to how the role of the Presiding Officer would be affected by this in deciding whether the provision is applicable and the relationship that the provision would have to the limits of the Parliament to make law. Given that there was never any dubiety about it, the better course was for the order to be in the simple form in which it is presented to your Lordships’ House today.

I fully acknowledge that it was not part of the recommendation that local government should be taken forward now. However, it makes good sense for practical purposes. The franchise for local government elections in Scotland is the same as that for Scottish parliamentary elections. I rather suspect that, if the Government had not done this, someone on the Constitution Committee might have said, “This is what you get if you legislate in haste. Does the Minister not appreciate that the franchise for local government is linked to the franchise for Scottish parliamentary elections? It will lead to considerable additional cost if they are separated”. It is a very practical thing to do and the timing is important. If this were to wait until primary legislation went through both Houses of Parliament and got Royal Assent, there would still need to be legislation done by the Scottish Parliament if it chose to. It would be very challenging to get that done, without breaking some of the timing rules, before the Scottish local elections in 2017.

I listened carefully to my noble friends Lord Forsyth and Lord Lang. My noble friend Lord Forsyth mentioned the referendum experience in a number of respects. Neither of my noble friends referred to the fact that 16 and 17 year-olds voted in the referendum on 18 September. I am not going to join those who thought that the whole referendum campaign was a great festival of democracy. Some of it was not very nice at all. Some noble Lords will recall messages that were not nice being tweeted and read out in our debates. However, people of all parties thought that the engagement of 16 and 17 year-olds worked. Schools held hustings and there was an opportunity for 16 and 17 year-olds to ask proper questions of MPs and MSPs from different sides. There was a turnout of 75%. If we have that turnout among those aged over 18—or 90, or whatever—in the forthcoming general election, it will be a significant improvement on 2010. Young people were not only involved and engaged: they turned out and may have set a lesson to the rest of us about how people might engage.

Therefore, the Smith commission agreement on this particular recommendation did not just come out of the air. As the noble Lord, Lord Empey, said, it is not as though, had Alex Salmond said, “Give us 15”, it would have been 15. I do not think it would have been; it was for 16 and 17 year-olds. The Smith commission was informed by that experience and by how those people had engaged.

It would be very odd if a number of people who could have voted, and possibly did vote, in the referendum were not allowed to vote in the 2016 election—as they would not be if this change does not take place. This agreement came forward and the Government, with the support of the Opposition, said that they would wish to see it happen. If we were suddenly to renege on that promise, the damage would be incalculable. It would be said that this is just the first of many other things that we would renege on. We are therefore asking the House to approve an order that transfers legislative competence and to do something that all parties in Scotland have asked for. As the noble Lord, Lord McAvoy, said, it is welcome in Scotland. We should not stand in the way of that. I therefore commend the order to the House.

Motion agreed.

Crown Prosecution Service

Lord Wallace of Tankerness Excerpts

Monday 23rd February 2015 Lords Chamber

[Lord Bach]

To ask Her Majesty’s Government what assessment they have made of the performance of the Crown Prosecution Service following recent cuts to its budget.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, by next year the Crown Prosecution Service will have successfully achieved cash savings of 24% since 2010-11 through structured cost reductions. By focusing on reducing the costs of accommodation, IT and HQ functions, the department has maintained or improved performance against many key performance measures.

[Lord Bach (Lab)]

My Lords, I thank the noble and learned Lord for his Answer. We all of course want to see the Crown Prosecution Service succeed. It has a vital role to play in our criminal justice system and, in recent years, has been particularly well led. However, as part of the cuts to which the noble and learned Lord referred and the 24% real-terms reduction in its budget, at the present time it has to advise and prosecute, among other things, some very old, serious and complex sex allegations. Does the noble and learned Lord support the recent request from the Director of Public Prosecutions for an up to £50 million increase in this year’s budget? What steps are his department taking to obtain the Chancellor of the Exchequer’s support?

[Lord Wallace of Tankerness]

My Lords, I think I am right in saying that this is the first time the noble Lord, Lord Bach, has been at the Dispatch Box in his new role as Shadow Attorney-General. I want to congratulate him on his appointment to that role. I share his view that the Crown Prosecution Service has performed exceptionally well and has been exceptionally well led in recent times. With regard to his specific question, he is absolutely right to say that there have been a number of large and complex cases, including historic child abuse, violence against women and terrorism matters. CPS officials are working closely with Her Majesty’s Treasury to analyse and manage the impact on the prosecution of the increasing number of large and complex cases to ensure that there are enough resources in place to tackle crime effectively and efficiently. The department will continue to assess and reprioritise resources where possible. Obviously, future funding will be determined as part of the spending review process in the normal way, informed by the analyses which are taking place.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, have the Government yet considered the recommendations of the recent Leveson review on efficiency in criminal proceedings, particularly concerning charging decisions, case ownership involving continuity of prosecution decision-makers and the early instruction of prosecuting counsel, and how these might help the CPS to increase efficiency within its budget? Have the Government also considered Leveson’s recommendation for 12 to 18 months of transitional funding to enable the CPS to implement the review’s proposals?

[Lord Wallace of Tankerness]

My Lords, I think it is fair to say that the Crown Prosecution Service is already doing much to improve efficiency. Obviously, we are well aware of the review undertaken by Lord Justice Leveson. The CPS finds it a very constructive piece of work. I can assure my noble friend that it is being given active consideration by the CPS.

[Lord Clinton-Davis (Lab)]

Is the Minister aware that legal practitioners are increasingly voicing their apprehension about the efficacy of the Crown Prosecution Service? What discussions has the Minister had with the practitioners? Is he not concerned about their lack of support for the CPS?

[Lord Wallace of Tankerness]

My Lords, I have not had the discussions that the noble Lord asks about but I am sure that my right honourable friend the Attorney-General is regularly in touch with all parts of the profession that have an interest in and are working with the Crown Prosecution Service. I have mentioned the cost savings that have had to be made and it should be put on the record that it is greatly to the credit of the staff working for the Crown Prosecution Service that they have sought to make these efficiencies while maintaining quality.

[Lord Elystan-Morgan (CB)]

My Lords, will the noble and learned Lord assure the House that, despite the financial stringencies, the criteria as to whether a case is of sufficient strength to justify prosecution remain exactly the same? Will he kindly tell the House how that role is currently enunciated?

[Lord Wallace of Tankerness]

My Lords, there is the code that is issued and I can assure the noble Lord that the tests remain the same: sufficiency of evidence that there is a realistic prospect of a conviction and, if that test is met, the ensuing public interest test. I think that that has been enunciated on a number of occasions.

[Lord Dobbs (Con)]

Is my noble and learned friend aware that the failure of the Crown Prosecution Service to prosecute the allegations of female genital mutilation recently was greeted with despair on all sides of this House? It is a crime and the evidence is absolutely clear, yet we have been unable to prosecute a single case in this country. Is there nothing that the Government can do to ensure greater effectiveness and a greater sense of justice in this matter?

[Lord Wallace of Tankerness]

My Lords, I can assure my noble friend that it is the resolve to bring to justice those who commit female genital mutilation where there is evidence to do so. Female genital mutilation is a form of child abuse and we should recognise it as that. With regard to the trial to which my noble friend referred, it was right for the Crown Prosecution Service to put this case before the court. On three separate occasions—once before the trial and twice during the trial—the judge dismissed applications by the defence to stop the case, thereby agreeing that the evidence should be considered by the jury. The jury considered the evidence and came to a verdict, which we respect. In this year, the 800th anniversary of Magna Carta, when we have talked so much about the jury system being a bulwark of our civil liberties, it is important that the jury system does work.

[Baroness Mallalieu (Lab)]

Is the noble and learned Lord aware that the situation in some parts of the country, in particular the West Country, is so serious that the Criminal Bar regards the Crown Prosecution Service as being on the point of collapse? The first part of many a criminal trial is spent by barristers trying to explain to the judge why advice that had been given in writing months before in relation to important parts of the preparation, with evidence and disclosure, has not been acted on as a direct result of chronic understaffing.

[Lord Wallace of Tankerness]

My Lords, I am not aware of any specific issue with regard to the West Country but I know that efforts are certainly made to reduce the number of cases that do not go ahead on the day or very early on because of the prosecution. It is my understanding that considerable steps have been taken to improve that position.

[Lord Howarth of Newport (Lab)]

My Lords, to what extent do the Government expect the Crown Prosecution Service to liaise with Her Majesty’s Revenue and Customs about decisions to prosecute? How satisfied is the noble and learned Lord about the state of liaison between the two organisations? How satisfied are the Government about the performance of the prosecuting authorities in relation to financial crime and tax evasion in particular?

[Lord Wallace of Tankerness]

My Lords, obviously where there is evidence and the tests are met, prosecutions should be brought. I do not have any specific information on the current liaison between the Crown Prosecution Service and Her Majesty’s Revenue and Customs. If there is anything of note I can find out about it and advise the noble Lord.

Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015

Lord Wallace of Tankerness Excerpts

Monday 26th January 2015 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the draft Order laid before the House on 4 December 2014 be approved.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 22 January

Motion agreed.

Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015

Lord Wallace of Tankerness Excerpts

Thursday 22nd January 2015 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the main purpose of this order is to provide for two new statutory appeals regimes. The first is in connection with decisions regarding electricity generating stations to be situated in the Scottish offshore region and the second is in connection with Section 36 consent decisions made under the Electricity Act 1989. These new regimes aim to establish a uniform statutory appeal regime to challenge certain marine licensing decisions made by Scottish Ministers across inshore and offshore regions.

The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient legislative changes to be made in consequence of an Act of the Scottish Parliament. This particular order is made in consequence of the Regulatory Reform (Scotland) Act 2014, which I shall refer to as the 2014 Act.

The 2014 Act is primarily intended to improve the way regulation is developed and applied in Scotland. It is the intention of the Scottish Government to strike a balance between the need to licence offshore renewable energy projects and a right to challenge those decisions. Therefore, the 2014 Act aims to amend the procedure for challenging decisions to enable any challenges to proceed quickly to the Inner House of the Court of Session. Currently, applicants for marine licences seeking authority under the Marine (Scotland) Act 2010 to carry out all types of licensable activity in the Scottish inshore region who wish to appeal Scottish Ministers’ decisions may appeal to the sheriff court. Third parties with title and interest may raise judicial review proceedings in the Outer House of the Court of Session.

Section 54 of the 2014 Act amends the Marine (Scotland) Act 2010 to provide for statutory appeals in connection with certain decisions made by Scottish Ministers. Those decisions relate to applications for marine licences in the Scottish inshore region in connection with electricity generating stations as well as to whether to hold a public inquiry in relation to the determination of such applications. The 2014 Act allows such appeals to be made by aggrieved persons to the Inner House of the Court of Session, provided that the court has granted permission for the appeal to proceed. To ensure consistency across inshore and offshore regions, this order amends the Marine and Coastal Access Act 2009 to provide for the same fast-tracked appeal regime in relation to such decisions for electricity generating stations to be situated in the Scottish offshore region.

Similarly, this order amends the Electricity Act 1989 to provide for that same appeal regime in respect of decisions made concerning applications for consent to construct, extend or operate generating stations, which is also referred to as Section 36 consent, as well as decisions on whether to hold a public inquiry in respect of such applications under that Act. This provision is required as there is currently no statutory right of appeal against Section 36 consent decisions.

Although the main purpose of the order is to provide for the two new statutory appeals regimes which I have just outlined, the order also makes minor or consequential changes to give the 2014 Act full effect. These include the following: first, the repeal of Sections 1(1)(d) and 5 of the Health and Safety at Work etc. Act 1974—the 1974 Act, which were repealed previously in England and Wales, but not Scotland, due to a number of extant regulations made in part under Section 1(1)(d) of the 1974 Act, but which now appear to be spent and suitable for repeal. Secondly, they include minor amendments to the Income Tax (Trading and Other Income) Act 2005 and the Corporation Taxes Act 2009 to ensure that the definition of a “waste disposal licence” in those Acts includes an authorisation under the integrated authorisation framework established by Sections 16 to 19 of the 2014 Act.

Finally, they include the extension of Sections 47 and 50 of the Copyright, Designs and Patents Act 1988—the 1988 Act—to Part 3 of the 2014 Act. The sections of the 1988 Act provide, inter alia, that copyright is not breached by copying material that is open to public inspection in pursuance of a statutory requirement, or which is on a statutory register, or by acts done that are specifically authorised by Acts of Parliament. This amendment is necessary as the move from environmental regulation under various UK enactments to the new powers in Part 3 of the 2014 Act has the unintended consequence that the provisions of Sections 47 and 50 of the 1988 Act would no longer apply. The order applies those sections of the 1988 Act to the relevant sections of the 2014 Act to ensure copyright is not breached. Similar provision is also made in respect of the Copyright and Rights in Databases Regulations 1997.

I consider this order to be a sensible use of the powers under the Scotland Act 1998. It again demonstrates that this Government continue in their commitment to working with the Scottish Government to ensure that the devolution settlement works. I commend the order to the Committee. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his detailed explanation, which I found extremely helpful. I was struggling with the copyright changes and it is helpful to understand why they were brought forward.

I have a few comments and only a couple of questions. My understanding is that the order is purely consequential; there does not appear to be any new policy development coming through. However, what impact will it have, if any, on the development of offshore wind facilities in Scotland? Will it have a substantial impact on it?

In article 4 of the order, subsection (4) of proposed new Section 36D of the Electricity Act 1989 states:

“An application under this section must be made within the period of 6 weeks beginning with the date on which the decision to which the application relates is taken”.

Is six weeks the normal period of time, or was it chosen as the most reasonable period of time to allow for an application made under that section?

Again in article 4 of the order, subsection (2)(b) of proposed new Section 36D states, as one of the conditions that has to be met for a court to grant permission for an application to succeed, the court would have to be satisfied that,

“the application has a real prospect of success”.

That also appears as one of the conditions in proposed new paragraph 5C(2)(b) of Schedule 8 to that Act on page 4. Is it normal legislative language that the court should grant permission only if there is a real prospect of success? I am not sure whether I have seen that language; I have seen “reasonable” but I am not sure that I have seen “real”.

Could the Minister also clarify what the language in proposed new paragraph 5C(2)(a) means. It states that the court must be satisfied that,

“the applicant can demonstrate a sufficient interest in the subject matter of the application” .

I am unclear exactly what that means.

From what I have seen I think we can support the order. However, those points of clarification would be helpful.

[Lord Wallace of Tankerness (LD)]

My Lords, I thank the noble Baroness for her general support of this order. It is consequential, and it is neutral in terms of whether it will give rise to more applications for offshore wind turbines. However, in the regimes that are in currently in place, the Scottish Parliament can competently legislate for the inshore marine area but not the offshore marine area. This order is to ensure that there is consistency between the two regimes. It simplifies matters by giving direct access to the Inner House of the Court of Session—the equivalent to the English Court of Appeal—rather than having to work up through the sheriff court and subsequent appeals, as was the case previously.

The noble Baroness also asked whether the period of six weeks was normal. I rather suspect that it replicates the arrangements already in place. As to having a sufficient interest in the subject matter, it is normal, especially in more recent times, that there should be some interest or title to sue. I have to be careful about the use of that term of art. However, not just anyone can come off the street and raise an issue. There has to be some nexus between the aggrieved person and the proposal under challenge.

[Baroness Smith of Basildon]

I thought my asking a question might allow for further enlightenment when I saw the Minister seeking advice.

If someone does not have sufficient interest, why would they make an application? It seems to be a given. I do not understand why a person would make such an application to the court if they did not have any interest in it.

[Lord Wallace of Tankerness]

They might just have a remote interest and generally be interested. For the sake of argument, let us say that the development was somewhere off the east coast of Scotland and this was a person who was just generally interested in wind farm developments and was living in a stately pile in Argyll. You would not actually say that there was a sufficient interest for them to merit a title to raise an action. I am told that the six weeks replicates what was under the 2014 Act. That is certainly my understanding; if that is not the case, I will certainly write to the noble Baroness.

I will also have to check up—as we are introducing this measure, as it were, at the behest of the Scottish Government—as to whether the term, the “real prospect of success”, is normal. I know that there have been substantial reforms of the Scottish civil jurisdiction in very recent times and much of it is still to be implemented, but I will write to her and confirm whether that is a new term of art or something that goes back into the mists of time. The general point is that we are giving effect to something the Scottish Parliament could not legislate for under the 2014 Act, to ensure that there is consistency between what it can legislate for and what it can not.

Motion agreed.

Scotland: Draft Legislation

Lord Wallace of Tankerness Excerpts

Thursday 22nd January 2015 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, with the permission of the House I will repeat a Statement made by my right honourable friend the Parliamentary Under-Secretary of State for Scotland in the House of Commons. The Statement is as follows.

“With permission, Mr Speaker, I wish to make a statement to the House about the further devolution process in Scotland and the publication of draft clauses to implement the Smith commission agreement. The draft clauses published today deliver a substantial package of new powers to the Scottish Parliament. We are publishing ahead of the Burns Night deadline, demonstrating this Government’s commitment to honouring the vow made to the people of Scotland during the referendum, and meeting the timetable we set out during the referendum to deliver further powers to Scotland.

The referendum on independence held on 18 September 2014 saw Scotland vote decisively to remain within our United Kingdom family of nations, retaining the strength, security and stability of being part of the UK. But the Scottish people did not vote for no change. During the referendum campaign the Prime Minister, the Deputy Prime Minister and the leader of the Opposition made a joint commitment to deliver more powers to the Scottish Parliament. The Smith commission, chaired by Lord Smith of Kelvin, was the result of that commitment. All five main parties in Scotland came to the table and reached agreement on the proposals for further devolution to Scotland within the United Kingdom. The Government welcomed the fact that this was the first time that all of Scotland’s main parties have taken part in a process to decide the future of devolution, and this landmark agreement was signed by all five parties. I am grateful to Lord Smith and the members of the commission for their work.

The commission’s heads of agreement were published on 27 November and the Government committed to bringing forward draft clauses to implement the agreement by Burns Night, 25 January. This was a challenging timetable, but by publishing a Command Paper and draft clauses today I am pleased to say that the Government have delivered on their commitment in advance of that deadline.

The clauses published today will make it possible to quickly translate the Smith commission agreement into law at the beginning of the next Parliament. The draft clauses provide for an already powerful Scottish Parliament to become further empowered and more accountable to those who elect it. As a result, the Scottish Parliament will become one of the most powerful devolved Parliaments in the world.

I will begin with the constitutional measures. The biggest transfer of powers to the Scottish Parliament and Scottish Minsters since the start of devolution comes with greater flexibility for the Scottish Parliament and the Scottish Government to manage their own arrangements, with statutory recognition of the enduring place of a Scottish Parliament in the UK’s constitutional arrangements. Our commitment to the process has already been evidenced by the steps the Government have taken to enable the Scottish Parliament to extend the franchise to 16 and 17 year-olds in time for the 2016 Scottish Parliament elections, with an order now laid before both Parliaments.

Turning to the fiscal framework, the package gives greater financial responsibility to the Scottish Parliament with an updated fiscal framework for Scotland that is consistent with the overall UK fiscal framework. As the Smith commission agreement set out, the new fiscal framework will be agreed and implemented jointly by the UK Government and the Scottish Government through the Joint Exchequer Committee, with suitable engagement with both the UK and Scottish Parliaments.

For the first time, more than 50% of the money spent by the Scottish Parliament will be funded by the Scottish Parliament. This is an important step, which builds on the measures brought forward by this Government in the Scotland Act 2012 and further increases the financial accountability of the Scottish Parliament to the people of Scotland.

Under the tax clauses Scotland will receive extensive new tax powers without losing the essential elements of our unified tax system that support the single market and make the United Kingdom such an attractive place to do business. The Scottish Parliament will be given the power to set the rates of income tax and the thresholds at which these are paid for the non-savings and non-dividend income of Scottish taxpayers. This is the most significant tax in Scotland and a powerful redistributive tool.

The first 10 percentage points of the standard rate and the first 2.5 percentage points of the reduced rate of value added tax will be assigned to the Scottish Government—which means the Scottish Government will retain half the VAT revenue generated in Scotland. The clauses also give the Scottish Parliament the power to charge a tax on air passengers departing from Scottish airports and on commercial exploitation of aggregates in Scotland.

Turning to the welfare clauses, these provide for key welfare measures to be designed by and delivered in Scotland. The Scottish Government will be responsible for a number of benefits, including those for disabled people and carers. Issues relating to long-term unemployment will be tackled with specific consideration of local circumstances. As set out by the Smith commission, universal credit will remain reserved but the Scottish Government will have certain flexibilities, including the power to vary the housing cost element. Scotland will also continue to share the benefits and strengths of the UK-wide system for pensions, labour market benefits and Jobcentre Plus.

Additional clauses build on the already significant powers of the Scottish Parliament and Government in a range of other policy areas. To give a few examples, there are new powers for the licensing of onshore oil and gas extraction, powers to introduce gender quotas in respect of public bodies in Scotland, and powers to police the railways. Together, these clauses give greater responsibility for more decisions affecting Scotland to be made in the Scottish Parliament and paid for by revenue raised by the Scottish Parliament.

Later today, ministerial colleagues will host an event in Edinburgh to present the Command Paper and clauses to representatives of civic Scotland. This will signal the next phase in the work. The clauses are presented today in draft. They will require further preparation to make them ready for introduction in a Scotland Bill in the next Queen’s Speech, and it has been made clear that this will be taken forward by whoever leads the Government after the next general election.

To get the clauses fully ready the Government wish to engage with experts from civic Scotland, and we are committed to engaging with the Scottish Government and Her Majesty’s Opposition ahead of finalising the clauses for introduction. Questions of commencement and implementation will need to be answered, and in order to do this we will need to understand what the Scottish Government intend to do with the new powers.

It will be necessary for the fiscal framework to be agreed alongside the introduction of the Scotland Bill, and of course Lord Smith made further observations to which we need to pay heed. In some areas he recommends further devolution from the Scottish Parliament to local authorities in Scotland. He also recommended better working between the two Governments and the two Parliaments.

The Command Paper and draft clauses provide for a more responsible and accountable Scottish Parliament inside a strong United Kingdom. By publishing ahead of time, the Government are demonstrating that they are meeting their guarantee to the people of Scotland. The clauses ensure a set of proposals that do not cause detriment to the UK as a whole or any of its constituent parts. The Government remain committed to ensuring that Scotland and the whole of the United Kingdom continue to prosper from our single domestic market, our social union and the strength that comes from the pooling and sharing of risks.

People in Scotland made it clear that they want to keep the advantages of a UK pound, UK pensions, UK Armed Forces and a strong UK voice in the world. The clauses allow that to happen. This is what Scotland voted for. It is what all parties in the Smith commission process signed up to. And it is what we are delivering today. I commend this Statement to the House.”

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for advance sight of his Statement. Today we again mark another milestone in the delivery of the vow made to the people of Scotland before the independence referendum. The timetable set out by my right honourable friend the Member for Kirkcaldy and Cowdenbeath during the referendum campaign has now been exceeded at every stage. A Command Paper on the process towards further powers appeared just 25 days after the referendum. The conclusion of the Smith commission and agreement by all five of Scotland’s political parties happened before St Andrew’s Day, just 10 weeks after the referendum. And today, ahead of schedule, as the Minister said, we see the draft clauses which will form the basis of the next Scotland Bill.

Before I turn to our response to the draft clauses and the Command Paper laid before the House today, I want to provide an absolute guarantee from these Benches. As my right honourable friend the leader of the Opposition has now made clear on a number of occasions, the powers agreed by the Smith commission will be delivered, and the next Labour Government will include a new Scotland Bill in our first Queen’s Speech. Labour created the Scottish Parliament in 1999, we supported more powers for the Parliament in 2012, and we will create a powerhouse Parliament with these new powers when we are in government.

Labour made it clear at the outset of the Smith commission process that we wanted a settlement that: first, respected the decisive outcome of the referendum, with a strong Scotland inside a UK where we pooled and shared risk; secondly, moved the maximum possible power from Westminster to the Scottish Parliament; and finally, did not make Scotland worse off. We are satisfied that the Smith commission delivered this outcome, and we can say with confidence that with these clauses we will be delivering home rule—the full powers Scotland needs.

As the Command Paper notes, the powers that these clauses will confer on the Scottish Parliament mean that it will control around 60% of spending in Scotland and retain around 40% of Scottish tax. This will make it the third most powerful devolved assembly in the OECD.

Before I turn to the detail of the clauses I wish to press the Minister—in a friendly way—on two areas that I hope he can address in his reply. The Command Paper makes explicit reference to the Barnett formula, and the agreement of all five parties during the Smith commission to the continuation of the formula. Can he provide just a bit more clarity about how the adjustment to the block grant will take place, and how discussions with the Scottish Government to agree this are progressing?

I also wish to press the Minister on an item on page 40 of the Command Paper, which reproduces the commitment in Smith that:

“MPs representing constituencies across the whole of the UK will continue to decide the UK’s Budget, including Income Tax”.

Given the Chancellor’s comments at the Treasury Select Committee on Tuesday, can the Minister provide an absolute reassurance that this part of the Smith agreement will be respected, as it is not addressed in the Command Paper?

I now wish to turn to the detail and the precise powers that the clauses will confer, specifically over job creation, tax and social security. The clauses confer full power over income tax and a number of other taxes. We welcome the clarity provided by the Command Paper on the areas to be devolved.

We welcome the extension of powers over VAT going further than the Smith commission, but will the Minister explain why this change was made? On welfare, the clauses have the effect of transferring extensive new powers to the Scottish Parliament, in the region of £2.5 billion of welfare spending, in addition to the powers to create new benefits. Will the Minister confirm that the clauses as drafted respect the spirit and letter of the Smith agreement and allow the Scottish Government to create new benefits? Will he also explain the process that will now be taken forward to examine in more detail the consequential arrangements to adjust the Scottish block grant to reflect what will now be devolved to the Scottish Parliament?

My honourable friend the Member for Glasgow East has already raised with the Secretary of State, and at Scottish Questions, our desire to see the job-creating powers of the Work Programme passed to Scotland at the earliest opportunity. It continues to be our view that this could be achieved using a Section 106 order to transfer responsibility to the Scottish Government immediately. This would reduce any uncertainty about the effect of continuing contracts in Scotland and would allow others to start to remedy what we regard as a failure of this Government’s Work Programme in Scotland, which sees only one in five people into a job. Will the Minister again consider bringing forward these powers now?

Finally, I would welcome more clarity from the Minister on the devolution of the Crown Estate. Will he clarify the process that will be followed to determine the transfer scheme, and how long this process might take? Will he also explain to the House how the Government will ensure that the Smith commission’s recommendation that the powers are further devolved to our island communities will be seen through? Many in our rural and island communities will want guarantees about the devolution of the Crown Estate and that powers will be passed to the islands, as both the UK and Scottish Governments promised during the referendum.

This is another milestone in Scotland’s home rule journey. Today, we on this side of the House welcome the Command Paper and the draft clauses. I am pleased that the Government have stated their commitment to further consultation with us and with Civic Scotland. There is still work to be done, and we commit to carry this work through if it is not concluded by the election and we form the next Government. On 18 September 2014, the clear will of the people of Scotland was expressed. The Smith agreement was the response to that call for change that we heard. Today, one thing is clear—Scotland will have a powerhouse Parliament.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord very much for his comments and for his welcome of these clauses, which, as I think he acknowledged, implement ahead of time the spirit and letter of the Smith commission agreement. It is also particularly welcome that he indicated that any future Labour Government would take these clauses forward in the Queen’s Speech. It is important to note that that has been said today by all three parties which signed the pledge prior to the referendum, so those who might try to cast doubt on the commitment are just mischief-making. There is a very clear commitment on the part of all the parties that that should be done.

The noble Lord asked about the Barnett formula and the adjustment to the block grant. There is within the Command Paper, in the section dealing with the fiscal framework, an indication as to how the block grant will develop. As tax will be the responsibility of the Scottish Parliament, the amount of tax generated will be deducted from the block grant. The Smith commission said that there had to be some means of indexation; it was quite good at saying that, but did not actually set it out. However, this will be discussed. The Command Paper sets out how it is intended to be done with regard to the devolution of income tax agreed in the Scotland Act 2012. There clearly will have to be discussions and I am pleased that the Deputy First Minister, Mr John Swinney, has already indicated to my right honourable friend the Secretary of State a willingness on the part of the Scottish Government to engage in these discussions on the fiscal framework. Whereas at the moment roughly 90% of the Scottish Parliament’s funding comes from the Barnett formula, once the 2012 Act arrangements and the Smith proposals are implemented it will reduce to 35%.

The noble Lord also asked about MPs’ voting and accurately quoted the passage from the Smith commission. There clearly is an issue, which has been raised, not only in regard to tax but on a number of issues. He is aware that the Government published a Command Paper on 16 December that looks at those issues. It is very difficult sometimes to disentangle what is devolved and what is not devolved. I certainly remember when—I was the Minister responsible for higher education in Scotland—this Parliament passed laws in relation to tuition fees in England and Wales, which had very direct consequences for Scotland. Sometimes it is too simplistic to say that just because it is not devolved it does not have implications for Scotland. But there is a legitimate debate to be had.

The White Paper sets up a number of options that the Conservative Party put forward and ones that my own party put forward. I am sure that the noble Lord’s party has its own view on this. The important point to make on this, however, is that the proposals that we are discussing today stand alone. They are not contingent—as we have made abundantly clear on a number of occasions—on any arrangement or Motions that might come forward with regard to “English votes for English laws”, as it is sometimes referred to.

With regard to VAT, the noble Lord asked why we went beyond the Smith commission—as well as the first 10% of the standard rate we will also assign 2.5% of the reduced rate of VAT. The answer is that, obviously, if the reduced rate is 5% one cannot assign 10%. We did, however, think it was in keeping with the spirit that we would assign half the revenue that comes from the reduced rate of VAT.

The noble Lord asked about welfare and it is certainly our belief that we have honoured the spirit of the Smith commission. In this, he is quite right to say that some £2.5 billion of welfare spending will be devolved to the Scottish Parliament. He asked about the detail of that, which is clearly considerable; none of us shies away from that. A ministerial working group on welfare has been established, which will be jointly chaired by my right honourable friend Mr David Mundell, Parliamentary Under-Secretary of State, and Mr Alex Neil, who is the Scottish Government’s Cabinet Secretary with responsibilities in this area.

The noble Lord asked about the Work Programme. There have been discussions between his honourable friend the shadow Secretary of State for Scotland and my right honourable friend the Secretary of State on this. We take the view that this is a package. The only measure we have accelerated is the Section 30 order in relation to votes for 16 and 17 year-olds because of the necessity of getting that on the statute book in good time for the 2016 election. The Government support the devolution of the Work Programme but it must be done in a way that reflects the fact that Smith will mean that we have a shared welfare and unemployment support system between Scotland and the rest of the United Kingdom. That is why we believe it has to be taken forward as a package. We do not know what the Scottish Government would do, and therefore do not think it would be right to take the risk that there would be no alternative programme or adequate transitional arrangements if we were to do it in very quick order. That is why we believe it should go forward as a package.

Finally, we have tried to devise a way in which we can devolve the Crown Estate, as the Smith commission recommended. I certainly share the noble Lord’s view that devolution does not stop in Edinburgh. He might expect me to say that, as I am a former parliamentary representative for the Northern Isles, which had very strong views on the Crown Estate. But, of course, further devolution is a matter for the Scottish Parliament. It is important, however, to put on record and remind the House that in his report the noble Lord, Lord Smith of Kelvin, as well as talking about further powers to the Scottish Parliament, made the point that it was important that the Scottish Parliament looked at ways in which it could devolve further powers to Scotland’s many communities.

[Lord Forsyth of Drumlean (Con)]

My Lords, I thank my noble and learned friend for repeating the Statement. He said that this is what the people of Scotland voted for, but it is certainly not what I voted for. I regard it less as a milestone; it is probably more likely to be a tombstone for the United Kingdom if we continue in this way by making piecemeal constitutional reform.

I wish to ask my and learned noble friend about the draft clauses in a constructive manner. Clause 4 introduces the extraordinary new concept of a “super-majority”, whereby matters can be passed by the Scottish Parliament only by a two-thirds majority. That includes, according to the draft clause,

“the persons entitled to vote as electors at an election for membership of the Parliament”.

As I understand it, we have just given the Scottish Parliament the power to alter the election franchise for 16 year-olds. Before the ink is even dry on this, we are already changing it. Why are we introducing this concept of a two-thirds majority being required to alter,

“the number of constituencies … the number of regions …the number of regional members”,

and,

“the systems by which members of the Parliament”,

are to be introduced? Is that going to apply to Westminster and the Welsh Assembly? This is a huge constitutional innovation. What is the justification for it?

To reflect the points made by the noble Lord, Lord McAvoy, why is there nothing in these draft clauses that sets out how the Barnett formula funding will be affected by the implementation of these powers? Surely that has to be there in primary legislation so that there is no question about how that will operate. As to the narrative on the paper, all that it says about funding is that,

“the Scottish Government’s Barnett-based block grant will be reduced to reflect the tax revenues that the UK Government will forgo as a result of devolution”.

What on earth does that mean?

[Lord Wallace of Tankerness]

My Lords, picking up on that final point, it means what it says: if there is devolution of income tax, which we are proposing to implement, the UK Government—the Revenue and the Treasury—will not receive the income tax receipts from Scotland on earned income and therefore the block grant will be reduced accordingly. That will be indexed. Box 1 on page 29 of the Command Paper describes how this is intended to work in terms of what we have already passed with regard to the Scottish rate of income tax under the 2012 Act. The noble Lord will see how it is intended to work with regard to the proposal that Parliament has already passed, one that can proceed for income tax as a whole and, indeed, for other taxes.

With regard to the two-thirds majority, it is not such a novel procedure as my noble friend suggests, because, although I suspect that he opposes it, it was nevertheless passed by this House when it introduced the Fixed-term Parliaments Act early in this Parliament with regard to any early general elections that might be called in the other place. We are actually implementing what the noble Lord, Lord Smith of Kelvin, recommended, which is that for matters as fundamental as the franchise, the number of constituencies and the electoral system we will provide “an adequate check”, as he put it in his commission’s report, on the Scottish Parliament. After all, it is a unicameral Parliament and a Government of a single party should not ride roughshod over the interests of other parties on a simple majority and completely change the electoral system. That is why the commission believed that on matters as fundamental as that, given that that power is being transferred from this Parliament to the Scottish Parliament, there ought be an adequate safeguard—and that safeguard is a two-thirds super-majority.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, first, I welcome very much the announcement that a joint arrangement has been put in place between the UK Government and Scottish Government on the implementation of the welfare provisions because that is an area in which there could be real trouble ahead. I wonder whether a similar mechanism is already in place, or is likely to be in place soon, for the recommendations on improved working between the Scottish Government and the UK Government and between the Scottish Parliament and the UK Parliament. I should be interested to hear the Government’s response on that. Secondly, the power to vary taxation—not the power to retain it—falls quite far short of the spending power of the Scottish Parliament under these proposals. Given the current expectations and instability that exist in Scotland and throughout the union, do the Government really believe that this is a recipe for stability in the medium term?

[Lord Wallace of Tankerness]

My Lords, the noble Lord raises an important point about the other recommendations in the Smith commission report on better intergovernmental and interparliamentary relationships. This is something which the Calman commission looked at although, regrettably, nothing much seemed to come of it. At the meeting of the joint ministerial committee which took place in December, the Prime Minister and the First Minister discussed these matters and there was an agreement, as a start, on looking at how to improve the current memorandums of understanding to address that issue. On parliamentary matters, there was a recommendation that the Presiding Officer of the Scottish Parliament should have an early meeting, after these clauses were produced, with Mr Speaker. I am not sure whether that is in place but I endorse the view that there ought to be better parliamentary relationships, at least for better understanding and for less of the misunderstanding that can sometimes arise.

In answer to the second part of the question, this is an enduring settlement. As was reflected in the comments of the noble Lord, Lord McAvoy, from the Opposition Front Bench, 60% of government spending in Scotland will be the responsibility of the Parliament and 40% of the tax raised in Scotland will contribute to that spending. In each case, that is twice the OECD average for devolved administrations. We are building and creating an enduring settlement, but the noble Lord is right to say that it will require a lot of work and engagement between the respective Governments in terms of both the fiscal framework and the welfare provisions.

[Lord Stephen (LD)]

My Lords, despite the low-key nature of the title of today’s Statement, does my noble and learned friend agree that these detailed clauses are of crucial importance to the future constitutional arrangements for the whole of the United Kingdom? They not only deliver on the vow of the party leaders, but they deliver, for Scotland, the most radical home rule measures ever seen in this country. These measures are now supported, quite remarkably, by the leaders—and the vast majority of the membership—of the major parties in all the Parliaments of the United Kingdom. Does he agree that it is vital that these measures must now be delivered, not only in the Queen’s Speech in May of this year but also in an Act of this Parliament in a new Scotland Act that should be delivered, if at all possible, by the end of 2015? I wonder whether my noble and learned friend can comment on the timetable for the shortest possible time for delivery of these proposals into legislation. Finally, does my noble and learned friend accept that, after home rule for Scotland, the next challenge is to deliver real devolution of powers, right across our regions and nations, in a federal United Kingdom?

[Lord Wallace of Tankerness]

My Lords, I am sure my noble friend would expect me to agree and I do, as my own party aspires to a federal United Kingdom. He rightly used the words “home rule”. This has been a campaigning issue for our party for more than 100 years. I am sure that Mr Gladstone would be very proud of what we have delivered today. He is right that we need to move on from here. There is a lot of work still to be done and we will ensure that today is not the end of the process. At official and ministerial level there is recognition of what more must be done so that a Bill is in preparation and ready to be brought forward after the Queen’s Speech following the election. The legislative timetable is not entirely in my hands, but it must be feasible to deliver this by the end of this year or, if not, in the early months of 2016. Having done it, I think all of us would want the issue to be about how the Scottish Parliament is going to use these powers. For so long we have had debates about what the powers are, whereas many people are asking how the powers can be used to improve the lot, and the social and economic well-being, of the people of Scotland.

Finally, I agree that the devolution of power is something which my noble friend and I in our party aspire to. But, as I have already said, the comments coming from some leading members of the Scottish National Party MSPs in recent weeks about centralising power and the attacks that there have been on local government in Scotland are very alarming. We have seen too much centralisation in the last two or three years in Scotland. I very much hope that a fresh wind of decentralisation will sweep through Scotland.

[Baroness Adams of Craigielea (Lab)]

My Lords, I also welcome the Statement that the noble and learned Lord has made today. I am glad to hear him say once more that all five parties signed up to this. But he will forgive me a little wobble because, on the day after the Smith commission reported, four SNP councillors in Renfrewshire burned that report outside the council offices. I have to wonder just what the commitment of the SNP is to this agreement. Will he clarify further what discussions have been made on further devolution to local Government? As he has already said, the Scottish Parliament has already sucked much of the power from local government to the centre. How far have the talks got on devolving some of that power back?

[Lord Wallace of Tankerness]

Any of us following the Scottish media, and probably even further than the boundaries of Scotland, saw that appalling scene when the report was burned. In fact, I have an instinctive gut horror at people burning any literature or writing and I find it very insidious. The SNP members of the commission signed that report and should be held to that. If they start complaining, they should be reminded of that. Nor was it signed at a low level: the Deputy First Minister signed on behalf of the SNP, along with Miss Fabiani. Therefore, it was signed at a high level and backsliding will be exposed.

What can be done about local government is a matter for the Scottish Parliament, which we can pursue within our respective parties. I do not think that it is really a matter for this Parliament to start legislating for local government in Scotland but we can create some of the mood music. I know from debates we have had in your Lordships’ House that from all parts of the United Kingdom and all parts of the House there has been a strong view of the need to decentralise more power in this country.

[Lord Cormack (Con)]

My Lords, if we are to have stability and if this is going to be an enduring settlement, would it not be reasonable, particularly bearing in mind what the noble Baroness said a few moments ago, to have within the final Bill a clause which rules out a referendum for at least 10 years?

[Lord Wallace of Tankerness]

My Lords, my noble friend will recall that the referendum required a Section 30 order to be passed by this House. It was certainly the view of the United Kingdom Government that there was no legal competence within the Scottish Parliament to do so and there is nothing in these draft clauses that would change that. It would still be a matter for this House and the other place to pass a Section 30 order if there were to be a further referendum.

[Lord Maxton (Lab)]

My Lords, unlike the noble Lord, Lord Forsyth, I am a supporter of devolution and have been for a very long time. I also want to make it clear that, like the noble Lord, Lord Forsyth, I voted by post; I voted before the vow; and I did not vote necessarily for further change or devolution to Scotland. I voted no to the simple question of whether Scotland should be an independent country. That is my first point.

My second point is that it is all right to say, “It’s a matter for the Scottish Parliament and the Scottish Government to deal with local government” but that was part of the Smith commission report, which the SNP accepted. What guarantees does the Minister have from the Scottish Government that they will implement further devolution to local government rather than just say that it is a matter for the Scottish Government and the Scottish Parliament to do that? It is not enough to say that. It has to be a guarantee before we start legislating on anything else.

[Lord Wallace of Tankerness]

My Lords, I too voted by post before the vow was made. However, it is also fair to say that the vow raised an expectation, and if a vow which was made was not honoured then that would be a serious destabilisation of the United Kingdom. With regard to the second point on devolution from the Scottish Parliament, in fairness that appears not in the report itself but in the foreword by the noble Lord, Lord Smith. I seem to recall that when he delivered his report he indicated that those were personal reflections, and those reflections have chimed well with many people. That is why it is incumbent on us within our respective parties to try to make sure that the drive for greater decentralisation and devolution within Scotland is carried forward.

[Lord Steel of Aikwood (LD)]

My Lords, the speed with which the Secretary of State for Scotland and others have managed to put together this package is quite remarkable. It is certainly very welcome that the first signs are that the Scottish Government will co-operate in implementing these proposals. In the previous 10 days I have come across a number of people who voted yes in the referendum, who feel now that they had a narrow escape from what could have been a disaster. We could be sitting here discussing an independent Scotland based on oil revenues which are nothing like those anticipated at the time of the referendum. Therefore, is the noble and learned Lord surprised to learn that a lot of people are now realising that we had a very narrow escape? Finally, is there any sign yet that we will get an all-party agreement on a constitutional commission or convention after the election?

[Lord Wallace of Tankerness]

My Lords, my noble friend is right to say that we had a very narrow escape. I dread to think what kind of discussions we would be having now if the vote had gone the wrong way on 18 September. There have been indications of support across parties with regard to a constitutional convention, although I do not think that there is any concrete proposal in place, or any plans at the moment to set one up prior to the election. I endorse my noble friend’s comments about the speed involved. I pay particular tribute to officials in many departments of government, not least in the Scotland Office and in my own office. They were given 37 working days. When the pledge was made with the deadline of Burns Night no one had worked out that it was a Sunday, so that de facto reduced the number of days that were available. They did a tremendous amount of work, and I am very conscious too that there is more work to be done.

[Lord McFall of Alcluith (Lab)]

My Lords, like other noble Lords I voted by post, and I voted for the fiscal integrity of the United Kingdom. I was very pleased to see that the Smith commission unanimously endorsed that fiscal integrity, whereby there would not be two classes of Members of Parliament, and said explicitly that all Members should vote on the Budget. I am asking the Minister a simple question: is that the case? Will all Members vote on the Budget: yes or no?

[Lord Wallace of Tankerness]

My Lords, I cannot say what will happen in a future Parliament. All Members will vote on the Budget that will take place in this Parliament, for which I have collective responsibility as a member of the Government. I do not know what will happen in a future Parliament. There is a debate, but the noble Lord is right to point out what the Smith commission said on that. The noble Lord knows as well as anyone just how difficult it would be on—for example—income tax. That is a shared tax because, while rates and bands will be devolved, personal allowances will remain a matter for the United Kingdom Parliament. The definition of income and what constitutes a tax base will be a matter for the United Kingdom Parliament, and I do not know how to disentangle that.

[Lord Empey (UUP)]

My Lords, is it not the case that this is the fourth set of constitutional proposals in the past 12 months? Is this therefore not a case of constitutional crazy paving where there is no plan? Each proposal is a different shape and serves a different purpose. The point I want to concentrate on is the first part of these clauses covering the issues of the constitutional composition, and in particular the Sewel convention. When is a devolved Parliament not a devolved Parliament? As a result of these clauses, can the Minister confirm that this Parliament will still be able to vote and decide on devolved matters if and when it felt that that was required?

[Lord Wallace of Tankerness]

My Lords, what we have done is put the Sewel convention on to a statutory basis. The noble Lord can see how it has been set out, although it may not immediately be clear from the clause. However, it has been added after Section 28(7) of the Scotland Act 1998, which makes it clear that the Westminster Parliament can still legislate.

[Lord Lexden (Con)]

My Lords, is it not obvious that today’s proposals are bound to increase the demand for English votes for English laws, on which the Government have produced no firm proposals at all? As to Mr Gladstone and home rule all round, that was not his plan. It was the brainchild of the great unionist, Joe Chamberlain.

[Lord Wallace of Tankerness]

I think he changed his mind after that, but I salute my noble friend’s historical knowledge. There is a legitimate issue here. As I have indicated, last December the Government published a Command Paper, but there would not appear to be any consensus. Three versions have been produced by the Conservative Party, including one from my noble friend Lord Norton of Louth, and there was one from the Liberal Democrats. It is clear that there is no consensus, but there is consensus on what we are proposing today.

Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015

Lord Wallace of Tankerness Excerpts

Tuesday 20th January 2015 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the draft order laid before the House on 18 November 2014 be approved.

Relevant document: 14th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 13 January.

Motion agreed.