Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2014

Lord Wallace of Tankerness Excerpts

Thursday 23rd October 2014 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2014.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

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

My Lords, I beg to move that the draft order laid before the House on 7 July now be considered. It might be helpful if I provide the Committee with a brief summary of what the order seeks to achieve. The order is made under Section 63 of the Scotland Act 1998, which allows for an order 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 instead of by the Minister of the Crown.

Section 70(3)(a) of the Child Support, Pensions and Social Security Act 2000 makes provision for the Secretary of State for Work and Pensions to set the cap on the amount that local authorities may spend on discretionary housing payments in a financial year. Pursuant to this, the actual cap is set out in the Discretionary Housing Payments (Grants) Order 2001.

This Section 63 order will transfer that function of the Secretary of State for Work and Pensions to the Scottish Ministers instead. This will enable the Scottish Ministers, by order, to determine the limit on the total amount of expenditure that may be incurred by a Scottish local authority in making discretionary housing payments in the financial year 2014-15—that is, the current financial year—and onwards.

The order allows the Scottish Ministers to decide at which level the cap on discretionary housing payments, to be made by local authorities, is to be set. This will give local authorities and Scottish Ministers increased flexibility to support claimants with their housing costs in this way, as they deem appropriate. The order demonstrates the United Kingdom Government’s continued willingness and commitment to working with the Scottish Government to make the devolution settlement work.

As noble Lords will be aware, the commission under the chairmanship of the noble Lord, Lord Smith of Kelvin, has been established to look at additional powers for the Scottish Parliament, and welfare issues may well be a significant part of its deliberations. However, these measures relate to the current financial year and I am sure that noble Lords will agree that it is right that we take them forward at this time.

The order was considered by the Scottish Parliament’s Welfare Reform Committee and was then passed without a Division in the Scottish Parliament on 20 August. It was considered, too, by the Delegated Legislation Committee in the other place on the 14th of this month and passed the following day. If your Lordships’ House approves this order, it will then proceed to the Privy Council. I therefore commend the order to the Committee and beg to move.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for explaining the order to the Committee. I want also to express my usual thanks to the Minister’s staff for making sure that I was briefed. I would be at quite a loss without those briefings and I want to put on record that appreciation.

The Labour Party supports this order, made under the Scotland Act 1998. As the Minister said, it transfers certain functions of the Work and Pensions Secretary to Scottish Ministers. The transfer concerns the ability to cap the entire amount of expenditure that may be required by a local authority in awarding discretionary housing payments. This amendment to the Scotland Act is supported, as it demonstrates the delivery of further devolution pledges and grants control to Scottish Ministers over a payment that they requested. There is total agreement between the two Front Benches on that.

However, one aspect of the order is worth mentioning for a couple of minutes, which is the two words, “bedroom tax”. I know that Ministers are trained to call it—what is it again?—discretionary housing payment or something like that, which is some cover-up for what is basically a bad tax on a lot of poor people. It is interesting that a Liberal party Minister is putting forward this measure because, quite frankly, it would not have survived without the Liberal Peers and MPs marching into the Lobbies to support the Conservative Government on the bedroom tax. I am very pleased that the Labour Party in Scotland played a very prominent role in putting pressure on the Scottish Government to come forward with something like this so that we can take the pressure off ordinary people in Scotland at least. As a unionist I express regret that the same situation cannot apply in England and Wales. However, having made that very slightly acrimonious comment—having a Liberal Minister in front of me, I just cannot seem to resist it—once again, I thank the Minister for his demonstration and commitment to devolution, which I suppose is in the long run a bigger subject.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord McAvoy, for his support for this order, and the support of his party. I did not think that he would resist the temptation to refer to the removal of the spare room subsidy—of course, it is the removal of a subsidy; it is not a tax. However, as I know that he is a keen follower of Liberal Democrat policy, he will know the position that my party has expressed in recent weeks with regard to that proposal. I will not abuse the Committee by elaborating on that here, but he will be well aware of it. However, he is right; this is an illustration of how the devolution settlement works and its flexibility I think I am right to say that this is the first Section 63 order in this Parliament—I think some of the earlier orders were debated under Section 104—and it shows that the Scotland Act has a number of different measures with which we can make the devolution settlement work, not only for the people of Scotland but also for that of the United Kingdom as a whole.

Motion agreed.

Scotland: Devolution Commission

Lord Wallace of Tankerness Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what progress has been made by the devolution commission, chaired by Lord Smith of Kelvin; and when they expect it to report.

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

My Lords, the noble Lord, Lord Smith of Kelvin, has already done his work and is today chairing the commission’s first plenary session. All of Scotland’s five main parties are taking part in this process. There is a clear timetable for the work and an opportunity for people across Scotland to participate. The Smith commission will produce a heads of agreement report by 30 November this year.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am grateful to the Minister for his Answer. However, does he agree with me that the Smith commission should not operate on the basis of party horse trading but on principles, particularly the principle that each power devolved should be appropriate to be exercised at that level, and that Holyrood should be given tax-raising powers sufficient to enable it to raise enough money to cover the expenditure for which it is responsible?

[Lord Wallace of Tankerness]

My Lords, I agree with the noble Lord that this should not be a question of horse trading. Ahead of today’s meeting the noble Lord, Lord Smith, indicated that he believed that there would be a will among the parties to reach agreement. I do not think that it would be appropriate for the Government to dictate to the Smith commission what the principles should be, although I do think that the noble Lord makes an important point about principles. The one important, fundamental principle is that all five parties should work to strengthen the Scottish Parliament within the United Kingdom. On 18 September, the people of Scotland voted for Scotland to remain part of the United Kingdom, and that is a principle we cannot lose sight of.

[Lord Palmer (CB)]

My Lords, given that there is a rumour going around that Scottish MPs in the other place will not be able to vote on only English matters, might those of us in this House who live north of the border be affected by the same rule?

[Lord Wallace of Tankerness]

My Lords, as we heard the Reading Clerk read out a moment ago, and have heard numerous times, we are Peers of the United Kingdom. That puts us in a slightly different position from those who are elected to represent specifically Scottish constituencies.

[Lord Purvis of Tweed (LD)]

My Lords, it is, indeed, a historic day when all five major parties in Scotland meet round the table to discuss the way forward for Scotland. This will require those parties that have published proposals not only to form an agreement on the basis of principles but to compromise and, indeed, for some—not exclusively the Labour Party—to go beyond the proposals that they have already published. If that is the case, which we all hope that it will be, will the Government commit to promote actively the result of this to make sure that all families and voters in Scotland are aware of these home rule proposals for the long term? Will the Government also commit to meeting their deadline for bringing forward draft clauses to bring forward the conclusions of the Smith commission for legislation?

[Lord Wallace of Tankerness]

My Lords, on my noble friend’s latter point, the Government have indicated that they will bring forward draft clauses and, indeed, will do so by Burns Night, 25 January 2015. My noble friend makes an important point about the importance of ensuring that people in Scotland know what these proposals will be. We have sometimes undersold the very significant additional powers that have been made available to the Scottish Parliament under the Scotland Act 2012.

[Lord Wigley (PC)]

My Lords, does the noble and learned Lord accept the words of the Prime Minister at Question Time today when he confirmed that full fiscal autonomy and full control of Scottish taxes were within the options of the Smith commission? If that is so, how can it be achieved within a unitary state, and does it not beg the question that, inevitably, we must move towards a federal or quasi-federal structure?

[Lord Wallace of Tankerness]

The noble Lord knows what my party’s position on federalism has been for the last 100 years-plus. However, the important thing is that the noble Lord, Lord Smith of Kelvin, and his commission are allowed to get on with their work on the basis of the submissions made to them and do not feel in any way that they are being hidebound by the views of either the Scottish Government or the United Kingdom Government.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, one of the more unfortunate developments in Scotland over the last two years has been the headlong rush to discuss more powers for the Scottish Parliament before discussing what to do with the additional powers in the 2012 Act. But given that situation, it is now vital that we have a sustainable settlement for the longer term. That will need all five parties to move from their current positions and the new commission to agree on the basis of principle. Have the Government set as an objective for the commission a sustainable, long-term settlement for tax powers in Scotland that will then allow the parties to get on and talk about what to do with the powers rather than about how many powers they have?

[Lord Wallace of Tankerness]

I thoroughly agree with the noble Lord with regard to the importance of the use of the powers. I like to think that the Administration of which he and I were part made very good use of our powers. That is important. It is also important that that is sustainable in the longer term to ensure not only that Scotland’s place within the United Kingdom is maintained but that it will be a balanced settlement, which we are ultimately striving for, that is fair to people in England, Wales and Northern Ireland.

[Lord Trimble (Con)]

My Lords, how within the commission will there be a provision to enable the British national interest to be reflected?

[Lord Wallace of Tankerness]

My Lords, as I indicated to the noble Lord, Lord McConnell, any agreement must be sustainable for the longer term and fair to other parts of the United Kingdom. I do not want to be tempted down the road of second-guessing the Smith commission but I have made it very clear that the one principle that cannot be challenged is that the people of Scotland voted to remain part of the United Kingdom. That principle must be upheld in any proposals that the commission comes forward with.

[Lord McAvoy (Lab)]

My Lords, as the Minister said, we should not second-guess the Smith commission. The details will come. However, does he agree that all parties must enter the process in good faith and want a conclusion to the process that respects the result of the referendum, which was decisive, and is in the best interest of the people of Scotland?

[Lord Wallace of Tankerness]

My Lords, obviously everyone wants the outcome to be consistent with the referendum outcome and in the interests of the people of Scotland. The noble Lord, Lord Smith, has already met the individual parties and said that he believes there is a will among them to reach agreement. I hope so and that it will be done in good faith.

[Lord Grocott (Lab)]

Was the Minister actually saying, in answer to an earlier question, that while it would be fine to create two categories of MP by withdrawing voting rights on certain matters from MPs from Scotland, there would be no question whatever of having two categories of Peer—a matter in which he would have a direct interest? That sounds to me suspiciously like wanting to have your cake and eat it. Surely, the only way that one can sustain a position of equality across the United Kingdom is to say no to any suggestion that there should be two categories of voting rights, either for MPs in the House of Commons or Peers here. Starting to have two categories of Member would be to take a very dangerous route towards the break-up of the United Kingdom.

[Lord Wallace of Tankerness]

My Lords, I think I was answering very directly the question asked by the noble Lord, Lord Palmer. I made the self-evident point that there was a difference between people elected to represent a territorial part of the country and Peers of the United Kingdom. However, the so-called West Lothian question is a live issue that has been around for far longer than even Mr Tam Dalyell. A number of proposals have been put forward, including comprehensive proposals from the McKay commission. I know that my right honourable friend Kenneth Clarke chaired a commission for the Conservative Party, and my right honourable friend David Laws has put forward ideas on behalf of my own party. It is important that these issues are addressed. The Prime Minister set up a committee under the chairmanship of William Hague to look at this issue, among other things, and I very much hope that it can proceed on a cross-party basis, if possible.

[Lord Cormack (Con)]

My Lords, is it not important that Mr Hague’s committee does not come to premature conclusions? What the noble Lord, Lord Grocott, said about categories of Members of Parliament and of this House is exactly right. What is at risk is the future unity of the United Kingdom, and any short-cut solution on the basis of the glib “English votes for English laws” will not necessarily safeguard the long-term interests of this country.

[Lord Wallace of Tankerness]

My Lords, I think that I am on safe ground in otherwise difficult territory in saying that the one thing that everyone is united upon is the importance of the United Kingdom. Proposals on any part of constitutional reform must be looked at on the basis of whether they will sustain the United Kingdom. There would be no point, having gone through the trauma of a referendum and having established Scotland’s place and integrity within the United Kingdom, going about constitutional proposals that start unpicking the ties that bind us.

Scotland within the United Kingdom

Lord Wallace of Tankerness Excerpts

Monday 13th October 2014 Lords Chamber

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

My Lords, as Deputy Leader of the House I wish to repeat a Statement made in the House of Commons by my right honourable friend the Secretary of State for Scotland entitled “Scotland within the United Kingdom”. The Statement is as follows:

“With permission, Mr Speaker, I wish to make a Statement to the House about the position of Scotland within the United Kingdom. As honourable Members will well know, on 18 September 2014 the people of Scotland voted in a referendum on independence. I am pleased to report to the House that by a margin of 10.6%, or 55.3% to 44.7%, the people of Scotland have voted to remain part of the United Kingdom.

The referendum was underpinned by the Edinburgh agreement signed between the United Kingdom Government and the Scottish Government in October 2012. That agreement ensured that the referendum would have a clear legal base, that it would be conducted in a way that commanded the confidence of both Parliaments, Governments and people and, most importantly, that it would deliver a fair, legal and decisive expression of the views of people in Scotland—a result that everyone would respect.

Over 2 million people made a positive choice for Scotland to remain part of the United Kingdom. The franchise for the referendum included for the first time ever in this country 16 and 17 year-olds, and, at a time when our elections have suffered from declining participation, the turnout across Scotland was nearly 85%—something that I am sure all across this House would welcome. Politics works best when people take an active interest in supporting the things that matter to them most. It also adds emphasis to the democratic result.

The decision of the people of Scotland was clear. They voted to continue to be a part of this family of nations, they voted to continue to work alongside people in England, Wales and Northern Ireland, and they voted for us all to remain together as a United Kingdom.

It is important that everyone now accepts this result. We should all move on from the 55% or 45% to working for 100% of people in Scotland, and that is what we are doing. The vow made by the Prime Minister, the Deputy Prime Minister and the leader of the Opposition during the referendum campaign is already being put into practice. The Smith commission, chaired by Lord Smith of Kelvin, was up and running on 19 September. Lord Smith will convene cross-party talks to reach agreement on the proposals for further devolution to Scotland. His terms of reference make clear that the recommendations will deliver more financial, welfare and taxation powers, strengthening the Scottish Parliament within the United Kingdom.

But this process is not just about the parties. The referendum opened up civic engagement in Scotland across sectors, communities and organisations, and Lord Smith has made clear he wants to hear from all of these groups to ensure that the recommendations he produces are informed by views from right across Scottish society.

By St Andrew’s Day, Lord Smith will publish heads of agreement. The Government are committed to turning these recommendations into draft clauses by Burns Night 2015. The timetable is demanding but that is because the demand is there, in Scotland, to see change delivered, and it is a demand we will meet.

On Friday, 10 October, all of the five main Scottish parties submitted their proposals to the commission. In the case of the Labour, Conservative and Liberal Democrat parties, these proposals reflect the positions published by the parties prior to the referendum campaign. The SNP and Green Party agreed to join the cross-party talks after the referendum, and they too submitted proposals on Friday.

Today I can confirm that the Government are meeting the first step in the further devolution process with the publication of a Command Paper. The Command Paper we are presenting today provides a clear, factual summary of the proposals for further devolution in Scotland published by each of the three pro-UK parties, as we committed to do during the course of the referendum campaign.

These party plans encompass a broad, complex and often interlinked range of topics from taxation to borrowing and from welfare to regulation. To inform and assist consideration of each of these proposals, the paper also sets out factual information about the current situation in these key policy areas, as well as presenting some background information about devolution in Scotland to date. This publication is wholly without prejudice to the work of the Smith commission, which will look at proposals from all of the parties and others and seek to establish the ground for consensus.

This will be the first time, in the development of Scotland’s constitutional future, that all of its main parties are participating in a process to consider further devolution: this is a truly historic moment and one that I very much welcome.

I am confident that with all five main Scottish parties working together, in collaboration, we will reach an agreement that will provide the enhanced powers to the people of Scotland and accountability for the Scottish Parliament while retaining the strength and benefits of being part of the United Kingdom. That was the message heard loud and clear during the referendum campaign and it is one that this Government—and all of Scotland’s political parties—are committed to supporting”.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am grateful to the noble Lord, Lord McAvoy, for his welcome of the publication of the Command Paper and indeed for what he said about the referendum. I join him in paying tribute to Gordon Brown, Alistair Darling and Jim Murphy. Gordon Brown’s speech on the day before polling day was one of the most electrifying that I have heard in a long, long time and it was very influential. I do not think that I know about even a fraction of the time and energy that Alistair Darling put into the Better Together campaign. He deserves all credit and praise for that. I think that Jim Murphy took more than one Irn Bru box as he went round Scotland. I know that his campaign was a great inspiration to many people who themselves were promoting the Better Together campaign up and down the country.

I agree with the noble Lord, Lord McAvoy, that as a result of this we should and must have a stronger Scottish Parliament. He asked about a Motion on the Order Paper. I understand that there is a Motion on the Order Paper of the other place in, I think, the names of the Prime Minister, the Deputy Prime Minister, the leader of the Opposition, Mr Alistair Darling and Mr Gordon Brown. As I understand it—I do not know whether it has been confirmed—there is to be a debate tomorrow. I should perhaps indicate that there will be a debate on devolution in your Lordships’ House on the 29th of this month, and I am sure that noble Lords from all sides of the House will want to take part in that.

The noble Lord, Lord McAvoy, also asked me about engagement with the commission under the chairmanship of the noble Lord, Lord Smith of Kelvin. I understand that the noble Lord will be undertaking a stakeholder engagement process, and I encourage all interested parties to respond to that. The commission also has a website, which is up and running and into which people can input ideas and proposals. He said that the test for the Labour Party would be whether the outcome of the discussions respects the outcome of the referendum. I very much endorse that. The importance of pulling resources across the United Kingdom was a message that came through very strongly, particularly in the latter stages of the campaign.

When the Scotland Bill 2012 was going through this House and the other place, the Government set out three principles: any proposal should have cross-party support; it should be based on evidence; and it should not be to the detriment to other parts of the United Kingdom. I believe that these are sensible proposals and, within the context, as emphasised by the people of Scotland in the referendum, they should also secure Scotland’s place in the United Kingdom.

[Lord Purvis of Tweed (LD)]

My Lords, it is remarkable that a 300 year-old union between nations peacefully and democratically renewed itself. It is incumbent on this Parliament and the parties within it to carry through their vows. As the noble Lord, Lord McAvoy, said, it is very welcome that the publication is ahead of time in commencing its work. Liberal Democrats, with our colleagues and friends in the campaign for Better Together, indicated that a vote of no in the referendum was not a vote for no change.

The Command Paper’s analysis of the proposals by the three parties will assist in informing the public for their participation in the Smith commission. If the vow by the SNP is to be held, that this is a once-in-a-generation vote, then the proposals coming out of the Smith commission and those that will form the draft clauses, as the noble and learned Lord indicated, will also need to stand the test of time for the long term. That is why I and others in this Chamber have put forward for consideration a conference on the new union with a wider scope for other parts of the United Kingdom reform process too.

Will the noble and learned Lord also reflect on my view that if these proposals are to stand the test of time, and if the results of the Smith commission and the draft clauses will, in effect, be home rule proposals, then every household and voter in Scotland will need to be aware of them and their consequences? It will be insufficient for the Government simply to publish draft clauses that may well form part of a referendum. It will be important for the Government to make sure that every household in Scotland, through a publication direct through the letterbox, will be aware of the proposals and the potential opportunities for them, so that this is for the long term and for our lifetime.

[Lord Wallace of Tankerness]

My Lords, I agree that these proposals must stand the test of time and re-emphasise the fact that Scotland and the United Kingdom remain united. It would not be right for the people of Scotland, who voted so decisively to remain part of the United Kingdom, if we then adopted proposals that started to unpick and unravel the union. I do not believe that that is what people expect.

My noble friend and the noble Lord, Lord McAvoy, are right to draw attention to the fact that the Command Paper has been published ahead of time. I am not sure whether there ever was a budget, so I cannot say that it was within budget. My noble friend asked me to make commitments about sending things to every household. I am not sure that I can make such commitments on the hoof, but I take his point. It is an important point because I sometimes think that we have never been given the full credit for what Parliament passed in the Scotland Act 2012. Indeed, someone who was campaigning on the yes side said to me, “Why did you guys and girls never make more of the powers that have actually been transferred?” We have seen in the past few days, with the Finance Secretary John Swinney making tax proposals on the replacement of stamp duty, land tax and landfill tax, that these powers are now real. With the Scottish rate of income tax kicking in in April 2016, substantial powers are already in train and being delivered on the back of a commitment made by each of the three parties in their manifestos at the last election. So when some people question our willingness to hold to what we commit to, we need to point not only to what we did then, but also to what the Labour Government did in 1997.

[Baroness Liddell of Coatdyke (Lab)]

My Lords, I am very glad that the noble and learned Lord emphasised the 2012 settlement, because I think that is something that people were not aware of in the course of the referendum campaign. I also thank the noble and learned Lord for emphasising the scale of the majority for the no vote, because, in the past few weeks, I have sometimes wondered if we did actually win. We have learnt that those who shout loudest do not necessarily find themselves on the winning side. It was the quiet majority in Scotland that voted no and were sometimes frightened to admit that. Does the Minister agree that, regardless of the outcome of the Smith commission and the conclusions of all the major political parties in this House, that will not assuage the views of the separatists and that we will have to return again and again to emphasise the scale of the majority for remaining part of the United Kingdom?

On a specific point, the Command Paper contains a number of proposals for variations in income tax and other economic measures. What action will be taken to ensure that there is no adverse effect on macroeconomic policy, because any adverse change in macroeconomic policy will affect not just the people of Scotland but the people of all of the United Kingdom.

[Lord Wallace of Tankerness]

My Lords, the noble Baroness is absolutely right to emphasise that there was a decisive outcome. Just as we are being held quite properly to give effect to the commitments which all parties made in the referendum, so the Scottish National Party should be held to the commitment made by the First Minister that the referendum was a once-in-a-lifetime or once-in-a-generation matter.

I have already named three Members of the other place. I would also like to take the opportunity to thank the noble Baroness. Many Members of your Lordships’ House contributed much in terms of campaigning for this referendum and I wish to thank them too.

The noble Baroness asked about the macroeconomic powers and specifics with regard to proposals in the White Paper. It is fair to say that the purpose of the White Paper is to bring together the different proposals and put them in the context of the current situation. It is not therefore doing a subsequent analysis. It is very much a matter for the Smith commission to consider the implications for particular proposals. I have no doubt that a view from the noble Baroness would be properly considered by members of the commission.

[Lord Strathclyde (Con)]

I congratulate the Government on this Statement and the response of the Labour Party by the noble Lord, Lord McAvoy, for its unity of view. It fulfils the first part of the promise that was laid out during the referendum campaign and which has been monstrously slurred by the separatists over the course of the last few weeks. The noble Baroness is right and I share her view that when it comes to the commission of our colleague, the noble Lord, Lord Smith, he will find it very difficult to produce anything that the separatists themselves will not say is too little, too late, not enough, will not do, and breaks the fundamental promises given during the referendum campaign. I very much hope that the Government will be wise to that and give full support to the noble Lord, Lord Smith, in his endeavours.

My noble and learned friend correctly pointed out the scale of the victory in the referendum for those who wished to remain part of the United Kingdom. This Statement is rightly about strengthening the Scottish Parliament. However, there is another side to this equation, which is also strengthening the United Kingdom and strengthening other parts of the United Kingdom within the overall devolution settlement. The two or three issues do not need to be tied together, but they cannot be left behind. We have to come forward with constitutional proposals which are going to be fair for representation and for taxpayers right across the United Kingdom. It is only in that way that we will avoid in another generation being faced with an argument about separatism again.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend for his words and for the contribution that he made in chairing the Conservative Party’s contribution to the debate on the powers of the Scottish Parliament. He is right to indicate that it is Scotland within the United Kingdom. I think we made it clear that it is time for the United Kingdom to come together and move forward. Part of that will be a balanced settlement that will be fair not only to the people of Scotland but also to the people of England, Wales and Northern Ireland. He will be aware that my right honourable friend the Prime Minister has asked the Leader of the House of Commons, my right honourable friend William Hague, to draw up plans for that. I hope that they can be taken forward on a cross-party basis. But my noble friend’s underlying point is correct: we need to ensure that there is a sense of fairness in all parts of our United Kingdom.

[Lord O'Neill of Clackmannan (Lab)]

My Lords, I think that there is a feeling of relief rather than triumphalism in Scotland. Many of us who were the poor bloody infantry in the campaign were conscious that it took rather a long time for the no campaign’s message to be expressed with the clarity that resulted in the 10% majority. It is also to be said that this document is welcome because it is a clear exposition of what the three main elements in the no campaign had to say. It is also welcome because there is no reference to any change in the representation in Westminster at this stage. We have to recognise that issues of that nature could poison the well from which the noble Lord, Lord Smith, will want to sup. Therefore, we have to be careful that in trying to produce what might be devo-max or devo-increased we do not lose sight and end up with Westminster-lite. One of the problems in this campaign has been the inability of many of us to get across the fact that Westminster is an effective institution and that working in partnership with an enhanced Scottish Parliament can provide better government not just for Scotland but for the whole of the UK.

[Lord Wallace of Tankerness]

My Lords, picking up on the point made by my noble friend Lord Purvis, it is important that we remind people that Scotland has two Governments and two Parliaments. Work done in this Parliament has important implications for the people of Scotland across a wide range of issues. If, as the noble Lord, Lord O’Neill, has indicated, we were a bit slow in the no campaign to put that forward, we made the case powerfully towards the end. It is a lesson for us that we do not ignore the many things that are done by the United Kingdom Government and the UK Parliament. Of course, we have our political differences over them but, over substantial and important areas of policy, they matter to the people of Scotland. Perhaps it is incumbent on all sides that we do far more about spelling that out.

[Lord Reid of Cardowan (Lab)]

My Lords, without extending the—

[Lord Martin of Springburn (CB)]

I shall speak in order to tidy things up. The noble and learned Lord is right—the turnout was fantastic. I am proud to live in the constituency of East Dunbartonshire where the turnout was 91% and where they overwhelmingly voted no. Unfortunately, there are elements in the media and the so-called “45 brigade” who say that we should have another referendum. It is important that the cost of this referendum is put clearly to the taxpayers of the United Kingdom. There was a great deal of talk and concern about the poor who had to go to food banks and all the rest of it. We should therefore know the amount of resources that had to be put into that referendum so that anyone who says that they want another referendum soon would at least know the cost of the one that we had three weeks ago.

[Lord Wallace of Tankerness]

My Lords, I am sure that the different strands of costs will be published by the Scottish Government as well as such costs incurred by the United Kingdom Government. It would be very damaging indeed for us to continue to have these debates as they were very divisive. Those of us who live in Scotland know just how divisive they were. As the Secretary of State said in his Statement, it should no longer be about the 55% or the 45%, it should be about the 100%, which is what we are committed to address.

[The Earl of Caithness (Con)]

My Lords, the Statement makes reference to “working for 100% of people in Scotland”. Does my noble and learned friend agree that all the legislation to date has been for 100% of Scotland, including the Scotland Act 2012, and that Scotland has received more than its fair share under the existing arrangements?

[Lord Wallace of Tankerness]

I anticipated my noble friend’s question. We should not talk any longer about the divisiveness of 55% and 45% and should focus on ensuring that we deliver as best we can for the 100%.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I want to add something about understanding the context of what happened in those last 10 days. I am deeply worried. I absolutely welcome the publication of the Command Paper today and fully congratulate everyone involved in the campaign. Many on the other side of the argument conducted themselves well—not everyone but most people. We are now in a situation where expectations have been raised almost exponentially by the vow given in the last 10 days of the campaign. None of the three main parties’ proposals published today meet that expectation. The discussions that take place over the next few weeks must be serious. They must look at the detail of what my noble friend Lord Robertson, the noble and learned Lord and I spent weeks, months and years in the mid-1990s looking at when trying to get tax and financial proposals right for the Scottish Parliament. Unless these discussions are meaningful and go deep into the detail, we will not reach a settlement that will stand the test of time, even if we also solve the other issues in the United Kingdom that have been mentioned by noble Lords. I ask the noble and learned Lord to urge all those involved to be very careful. Having raised the expectations, we do not want to bring them back down again and find ourselves in a never-ending debate and unable to move on to other issues.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord McConnell, is right to emphasise how much detailed work went into the constitutional convention proposals, in which he, I and the noble Lord, Lord Robertson, were involved, and the work in terms of the taxation proposals now embodied in the Scotland Act. It is now two and a half years since that Act was passed. That shows the time that it has taken to get them implemented and to get it right. I agree that we should be under no illusion about that. I do not think for a moment that the noble Lord, Lord Smith of Kelvin, is under any illusion as to the challenge he is facing.

On the final point made by the noble Lord, Lord McConnell, about getting on with the powers and using them, he and I did a couple of events during the referendum campaign where we said some of the things that the Scottish Parliament had done. I very much hope that a right and proper debate about the extent of powers will not be used as an excuse for not using the powers that are already there. They should be used to tackle many things in Scotland, including education, health, transport and policing, which are crying out to be addressed.

[Lord Steel of Aikwood (LD)]

I wonder whether my noble and learned friend saw the lead story in the Scotsman on Saturday, which began with the sentence:

“The battle lines have been drawn in the fight to shape post-referendum Scotland, as the SNP government yesterday unveiled demands”.

Does he agree that my former constituent, the noble Lord, Lord Smith, will have a difficult time in the few weeks that he has to produce the report? If this commission is approached on battle lines grounds, there is an obligation on those who lost the campaign to recognise that they did lose. There is also an obligation on those who won to recognise that 45% of the population voted the other way. We must hope that what will come out of the Smith commission is the maximum amount of home rule consistent with common sense and that the parties will approach the commission in a constructive and consensus-seeking spirit and not in a battle line way.

[Lord Wallace of Tankerness]

I agree with my noble friend that a battle line approach will not be productive. I accept that the time is tight for the noble Lord, Lord Smith of Kelvin. I rather fear, however, that if we were to suggest any slippage the cries of betrayal would be even louder so I think it is important that we do stick to that. However, it is important too that people entering into these talks do so with a view to trying to achieve a lasting outcome. Simply to make a concession, for example, on monetary union, that was going to be made anyway in the context of independence, I do not consider a concession.

[Lord Kerr of Kinlochard (CB)]

I totally agree with the sentiment expressed by the noble Lord, Lord Steel of Aikwood, but I fear that the noble Lord, Lord Strathclyde, is more likely to be correct in his prediction of the outcome of the Smith commission. It would have been better—there is no point saying this—to have defined in advance what further devolution would make sense. Some of us in the House said that. I feel it was a great pity that in 2012 the Edinburgh agreement left only one question on the paper. My concern now is that the difficulties of reaching a consensus on this in the Smith commission will be greatly increased if extraneous issues are brought in. It was a great pity that the West Lothian question emerged at 7 am on the morning after the referendum. I thought that was a very great pity. I hope the noble and learned Lord will agree that in present political circumstances, whatever the mathematical logic of the West Lothian question, the correct answer is get over it.

[Lord Wallace of Tankerness]

My Lords, I do not think it was ever possible for three parties to come together in the heat of a referendum campaign and hammer out a single proposal. Many of our opponents would have loved us to have spent our time doing that rather than getting on with deploying the case for the United Kingdom. That is why we now have a Command Paper that sets out the proposals. I reassure the noble Lord, Lord Kerr, that while it is the case that the position on the West Lothian question is being looked at, it has been made clear by everyone that the extra powers for Scotland are not contingent or conditional on that. It is important to underline that.

Leader of the House

Lord Wallace of Tankerness Excerpts

Tuesday 15th July 2014 Lords Chamber

[Baroness Royall of Blaisdon (Lab)]

My Lords, before exercising the privilege of leading tributes to the noble Lord, Lord Hill of Oareford, I welcome the noble Baroness, Lady Stowell of Beeston, to her new role as Leader of the House. The whole House rightly paid tribute to her for the consensual manner in which she piloted the same-sex marriage Bill through your Lordships’ House, and I am sure that she will use those skills as Leader of the House. I wonder whether her skills could also be used to offer a peacemaking role between Mr George Clooney and the Daily Mail—but I will leave that to the noble Baroness.

It will be a pleasure to work with the noble Baroness, who I am sure will secure the Government’s business in the Lords in a style that fits with its traditions and places the proper emphasis on effective scrutiny and the willingness of government to rethink from time to time. I also know that she will not forget that in the strange but wonderful position she has as Leader she wears two hats—Leader of the Conservative Benches and Leader of the whole House. The whole House will be united in its support for the noble Baroness as Leader. I trust that press reports that she will not be a full member of the Cabinet are not true.

I turn to the noble Lord, Lord Hill of Oareford. I start by thanking him personally for the warm and productive working relationship that he and I had during his time as Leader. His door has always been open, as has his mind. He has shown himself to be a consensus builder with inner steel. He was endorsed for such skills in his new commissioner role by the Prime Minister, who this morning said:

“He has proven a skilled negotiator, respected by all parties”.

Whether he can extend those skills to negotiations with Nigel Farage remains to be seen—but if anyone can, perhaps it is the noble Lord.

This might not help his credentials within his own party, but as someone who leads the Labour Benches, which believe that our present and future must lie in a reformed EU, I was relieved that we have such rational chap in Brussels, notwithstanding our differences over the EU Referendum Bill. This morning he said that one of his challenges was,

“how to strengthen public support in many countries for the European Union”.

I trust that he includes the UK in this.

While I fear that some of his colleagues in the Commons want us to leave the EU come what may, I know that the noble Lord will work with colleagues in the Commission to bring about reform. However, I offer him commiserations for having to deal with some elements of his own party who will want to breathe down his neck, harrying him towards the exit.

The noble Lord survived the experience of the Maastricht Bill in No. 10 and I have no doubt that he will survive the tensions of being a Conservative Commissioner. From these Benches, we wish him well.

[Lord Wallace of Tankerness (LD)]

My Lords, I associate the Liberal Democrat Benches with the very warm wishes expressed by the noble Baroness, Lady Royall of Blaisdon, to my noble friend Lord Hill of Oareford.

Perhaps I may paraphrase Benjamin Disraeli by saying that everyone likes flattery, and when you come to an outgoing Leader of the House, you should lay it on with a trowel. You may wonder why from these Benches I am quoting Benjamin Disraeli. The truth is that the noble Lord, Lord Hill, pointed me in the direction of this quote when I spoke to him on the phone this morning.

I actually need no prompting whatever to pay a very warm tribute to the noble Lord, Lord Hill. I valued him as a Front Bench colleague from 2010—but particularly since I was appointed Deputy Leader of your Lordships’ House in October last year, I have had a warm and constructive working relationship with him. He has been an exemplary and thoughtful Leader of your Lordships’ House, protecting the interests of the House and of individual Members in everything that he has done during his term of office. I can sincerely say that his overwhelming concern has always been to protect the good reputation of this House, and he has regularly returned to this in our many conversations together. Party politics aside, we have genuinely worked very well together and I hold him in very high regard.

I echo the noble Baroness, Lady Royall, in saying that the noble Lord had a consensual way of working in the House and a particular concern for detail that I believe will stand him in good stead in his new role in Europe. The outgoing United Kingdom Commissioner was also a Leader of your Lordships’ House. We may reflect that, to operate in a House where no one party has a majority, we must build alliances and agreements across it to get things done. I suspect that this House was therefore a very good training ground for his new position. Whatever our party-political views on Europe, we on these Benches wish him well in his new role.

I also extend a warm welcome to my noble friend Lady Stowell as Leader of the House. We worked well together this time last year on the Marriage (Same Sex Couples) Bill and, as the noble Baroness, Lady Royall, said, the manner in which my noble friend conducted the Bill shows the qualities which she will have to be Leader of our House. However, I wonder whether her new elevated status will make George Clooney think again about his recent engagement—but only time will tell.

I hope that I am not betraying any confidences by saying that, when I spoke to my noble friend Lord Hill this morning, he reflected on the fact that my noble friend Lady Stowell has a bit of a baptism of fire today, with some Standing Order changes that she has to move and the House Committee at 4 pm. It was in the way that he said “the House Committee at 4 pm” that I recognised a man who was demob happy. I look forward to working constructively with my noble friend, starting at 4 pm in the House Committee.

We on these Benches look forward to working with my noble friend, and I once again to pay tribute to the valued work and service to the House of my noble friend Lord Hill of Oareford.

[Lord Laming (CB)]

My Lords, on behalf of my colleagues on the Cross Benches, I endorse the warm and very well deserved tributes to the noble Lord, Lord Hill, and wish him great success in his new appointment in Brussels. I and others recall well that he was a most effective and hard-working Minister, and I admired greatly his commitment to furthering the protection and well-being of vulnerable children and young people. It is a great credit to him that he quickly established himself as Leader of the House. He has fulfilled his responsibilities with great skill and care. He has commanded the respect of the House and is rightly held in very high regard.

Like others, I had heard rumours in the media about him being a possible candidate for a post in Europe. I readily admit that, rather selfishly, I hoped that that would not happen—but now that it has happened, he will be greatly missed by us all. The noble Lord can be assured that he takes with him to Brussels our grateful thanks for all that he has done during his work as Leader of the House, and also our warmest good wishes. I feel sure that we all agree that the noble Lord is a thoroughly nice colleague, who is able, conscientious, reliable and a real pleasure to work with. We wish him well.

If there is good news in losing the noble Lord, Lord Hill, it is that he has been replaced by the noble Baroness, Lady Stowell of Beeston, who is greatly admired for both her professional and her personal qualities. As has already been said, her skill at handling difficult legislation has been well and truly tested in your Lordships’ House. We welcome her most warmly to her new role, we wish her great success and we all look forward to working with her.

Assisted Suicide

Lord Wallace of Tankerness Excerpts

Wednesday 25th June 2014 Lords Chamber

[Lord Dobbs]

To ask Her Majesty’s Government whether they have issued guidelines as to whether those who assist a family member to end their lives in the Dignitas clinic in Switzerland can expect to be prosecuted.

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

My Lords, the Crown Prosecution Service published a policy in respect of cases of encouraging or assisting suicide in February 2010. This sets out factors that may be relevant in deciding whether prosecution for assisting suicide is in the public interest.

[Lord Dobbs (Con)]

As ever, I am grateful to my noble and learned friend. This morning the Supreme Court, in a landmark decision, said that the current law may be incompatible with human rights law, and that it might very well rule on this. It also said that it is our duty in Parliament to decide these issues. It put the onus back on us to decide. We will have that opportunity in a few weeks’ time with the Assisted Dying Bill of the noble and learned Lord, Lord Falconer. There are reports, which I hope I have misheard, that there may be an attempt to stifle discussion of these very important matters by voting the Bill down at Second Reading. Does my noble and learned friend agree that it would be inappropriate—and, indeed, highly irresponsible—to cut off debate on such a sensitive issue, given the passions on both sides about this hugely important question?

[Lord Wallace of Tankerness]

My Lords, I am certainly aware of the judgment passed down by the Supreme Court this morning. In a preliminary consideration of it I agree with my noble friend that it indicated that it is a matter that Parliament ought to consider. The Government will take a collective view on the Assisted Dying Bill of the noble and learned Lord, Lord Falconer, to respond to that debate. It is fair to say that historically it has been a matter of individual conscience, which the Prime Minister confirmed in April this year. Therefore, it would be inappropriate for me from this Dispatch Box to indicate what noble Lords should or should not do on 18 July. I fully expect, however, that on a complex issue that raises passions on both sides—which I very much respect—your Lordships, in traditional manner, will give proper consideration to a range of arguments including, no doubt, the judgment passed down by the justices of the Supreme Court.

[Lord Dubs (Lab)]

My Lords, if the Government are going to take a collective view, how does that relate to individual responsibility on a matter of conscience? Surely everyone—members of the Government included —should be entitled to have an individual view on a matter of conscience such as this, and not to be bullied by the Government Front Bench.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am grateful to the noble Lord. The Government will take a collective view which could of course be neutral. I indicated—I hope I can make it clear—that historically that has been the position on a matter of individual conscience. The Prime Minister confirmed this position as recently as April of this year. It is appropriate that Parliament should take a lead in such debates.

[Baroness Grey-Thompson (CB)]

My Lords, can the Minister say, with regard to the 108 British people I am aware of who have travelled to Dignitas, how many family members or friends have been prosecuted?

[Lord Wallace of Tankerness]

My Lords, I do not have that specific figure. However, records published by the Crown Prosecution Service show that from 1 April 2009 up until 13 February this year, 91 cases were referred to the CPS by the police that have been recorded as assisted suicide or euthanasia. Of these 91 cases, 65 were not proceeded with by the CPS; 13 were withdrawn by the police; and there are currently eight ongoing cases. One case of assisted attempted suicide was successfully prosecuted and four cases have been subject to prosecution for murder or serious assault.

[The Earl of Glasgow (LD)]

My Lords, are not the Government embarrassed, if not ashamed, by the fact that so many terminally ill people feel forced to go to Switzerland to die when, if the law was changed, they could die in their own homes with their family around them and a qualified doctor in assistance?

[Lord Wallace of Tankerness]

My Lords, these are matters properly for Parliament to decide. Indeed, it is fair to note that the current law which amended the Suicide Act 1961 is contained in the Coroners and Justice Act 2009. So Parliament has addressed this issue recently and will undoubtedly have an opportunity to consider these matters further when it comes to debate the Bill of the noble and learned Lord, Lord Falconer.

[Baroness Meacher (CB)]

My Lords—

--- Later in debate ---

[Baroness Meacher]

My Lords, does the Minister accept that the principle of patient autonomy is now at the centre of medical decisions throughout our lives until the very end when that right to one’s autonomy is withdrawn? I understand that the Minister cannot take a view on one or other side of the argument, but do the Government and the Minister accept that it is of the utmost importance that the Second Reading is allowed in order to satisfy the 75% to 80% of the public who support the Bill—and, indeed, the wishes of the courts?

[Lord Wallace of Tankerness]

My Lords, I very much expect that there will be a debate. I responded to a profound debate introduced by the noble Baroness, Lady Jay, two years ago. Albeit the speakers were limited to one minute, there were concise and impressive arguments on both sides and I hope that the House will have an opportunity to hear these arguments again.

[Baroness Jay of Paddington (Lab)]

My Lords, following the point raised by the noble and learned Lord, in view of the Supreme Court judgment this morning, does he agree that one of the issues we debated at the time he referred to—that there should be much greater clarity about the prosecution policy for healthcare professionals—should now be looked at again? One of the inhibiting problems in this area is the sense that healthcare professionals who may be able to give proper and sensitive help to people in this position are inhibited from doing so.

[Lord Wallace of Tankerness]

My Lords, it is important to make a distinction between clarifying the policy and changing the law. The role of the Director of Public Prosecutions is not to change the law—that is a matter for Parliament. However, the Supreme Court encouraged the Director of Public Prosecutions to consider the policy. They did not think that she should be required to review it but offered her encouragement to do so. Obviously, as it has been less than six hours since the judgment was delivered, I am not sure what the Director of Public Prosecutions will do. However, I fully expect that she will want to give careful consideration to what the justices said.

[Baroness Cumberlege (Con)]

My Lords, is my noble and learned friend aware that Keir Starmer, who was the DPP until just last year, told the Commission on Assisted Dying, chaired by the noble and learned Lord, Lord Falconer, that,

“the law works well in practice”?

In the light of that, does my noble and learned friend agree that there is nothing unusual about the way the law on assisted suicide works? We expect the law to be maintained in its integrity in order to protect all of us and for exceptional cases to be dealt with exceptionally.

[Lord Wallace of Tankerness]

My Lords, I do recall what the previous Director of Public Prosecutions said to the Commission on Assisted Dying; I think I referred to it when I responded to the debate of the noble Baroness, Lady Jay. The important point is that there is a code which sets out the evidential test which has to be met first and foremost, and then the public interest test. As the noble and learned Lord, Lord Hope, noted in the Purdy case, there will always be discretion for the Director of Public Prosecutions. Every case is different and it is important that individual cases are looked at, having proper regard to the individual circumstances.

Scotland: Independence

Lord Wallace of Tankerness Excerpts

Tuesday 24th June 2014 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That this House takes note of the constitutional future of Scotland in the light of the referendum on 18 September.

[Baroness Williams of Trafford (Con)]

My Lords, there are 40 speakers for today’s debate. If Back-Bench contributions are kept to around eight minutes, the House should be able to rise at the target time of 10 pm. This advisory time does not apply to the movers of both Motions, my noble and learned friend Lord Wallace of Tankerness and my noble friend Lord Lang of Monkton, or to the opposition winder, the noble Lord, Lord McAvoy.

--- Later in debate ---

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

My Lords, I thank noble Lords who are attending and intend to participate in this important debate. With some 85 days to go to the referendum, it is important that your Lordships’ House has an opportunity to express views on this most fundamental question facing the people of Scotland.

I welcome the fact that the debate is linked to the House of Lords Constitution Committee report on the constitutional implications of the Scottish referendum. I thank the committee for this report, not least the noble Baroness, Lady Jay, who chaired the committee. I look forward to the speech of my noble friend Lord Lang of Monkton, who now has the distinction of chairing that committee, and to the speeches of many of its members who are here to take part. The report is a very thorough and important contribution to the referendum debate and took evidence from a broad range of witnesses, including respected academics and Ministers from both the United Kingdom and Scottish Governments. The United Kingdom Government have until 16 July to respond to this report, and I can confirm that we will publish our response in advance of that date. I do not wish to pre-empt what will be said by my noble friend Lord Lang and others who wish to reflect on the report, but will respond in my closing remarks to the points they make.

As I indicated, it is now less than three months— 85 days—until the people of Scotland take the most important decision a country can ever be asked to take—whether we decide to stay in the United Kingdom family, or to leave and go it alone. I passionately believe in Scotland being within the United Kingdom, not because of dogma, nostalgia or ideology but because of what the United Kingdom means in the here and now, and what we can continue to achieve together as we go forward into the future. I believe in the contribution we have made over the past 300 years, along with our friends and families across England, Wales and Northern Ireland—our common effort to create and share something bigger that serves us all well. Together we can go on creating more, delivering more, and quite simply being more than we would ever be as separate states. Perhaps for too long Parliaments and Governments have allowed to go unspoken the contribution that Scotland makes to the United Kingdom; perhaps they have been equally silent on the benefits Scotland gets from being part of the United Kingdom. The referendum has focused our minds on what these benefits are.

Those of us who reside in Scotland will receive a booklet through our door entitled What Staying in the United Kingdom Means for Scotland. The booklet is going to every household in Scotland because we want everyone in Scotland to have the opportunity to make an informed decision in September, ensuring that voters no longer feel they are uninformed on the case being made by the United Kingdom Government. It is a booklet that sets out the facts in clear and simple terms, covering currency, pensions, trade and defence. We believe that the evidence is overwhelmingly clear. The evidence is also overwhelmingly positive: Scotland is better off staying in the United Kingdom and having the best of both worlds. We have more opportunities and greater security as part of the United Kingdom, while also having a strong Scottish Parliament with responsibility for important matters such as health, education, justice and transport.

As part of the United Kingdom, the powers of the Scottish Parliament will increase: we are already delivering the largest transfer of financial powers in 300 years, as set out in the Scotland Act 2012. Those powers will make the Scottish Parliament accountable for raising revenue, as well as spending public money. More powers will follow. That is the firm commitment of all three pro-United Kingdom parties in Scotland—not just by the separate commitments that each party has made, but by their united pledge to deliver further powers in the event of a no vote. This firm commitment to devolution, shared by both the Prime Minister and Deputy Prime Minister, is no doubt something that may be reflected on in this debate. I see that my noble friends Lord Strathclyde and Lord Purvis of Tweed are down to speak; they have made important contributions to their respective parties on this issue.

The important point about the booklet we are sending to every household is that it is not based on mere assertion or speculation, which so many of the Scottish Government’s proposals have been based on in this debate. Their 670-page White Paper included only one page of costings and projections, based on just one year’s financial information. In sharp contrast, our material draws on evidence from the Scotland Analysis series. I welcome the fact that the Constitution Committee’s report gave proper credit to that series, which concluded last Thursday with the launch of the summary paper by the Chief Secretary to the Treasury. That paper—number 15 in the series—is the conclusion to a series of papers that has been widely lauded as a comprehensive and detailed analysis of Scotland’s place in the United Kingdom. You might choose to call it “project fact”: more than 1,400 pages of analysis, citing hundreds of independent experts and organisations. The series has provided the evidence base for the positive case I wish to outline—the positive case for Scotland remaining in the United Kingdom.

I first highlight the positive economic case. Scotland is the wealthiest part of the United Kingdom outside London and south-east England. Scotland has the highest employment rate of all the nations in the United Kingdom—it is even higher than that of the United States of America. Scotland has a lower unemployment rate, at just 6.5%, than the UK as a whole, at 6.9%. Scotland is part of one of the six richest economies in the world. All this, and much more, has been achieved as part of the United Kingdom—because of the United Kingdom, not in spite of it. Scotland’s economy is not held back by our position in the union. That is an unfounded assertion that those seeking independence regularly repeat.

Let us be clear: being part of the larger United Kingdom economy provides Scotland with jobs, stability and security. It provides a recovering domestic market. In 2013 Scotland exported £50 billion of goods and services to the rest of the United Kingdom—four times more than Scotland’s exports to the rest of the world—and imported £63 billion of goods and services from the rest of the United Kingdom. It is a domestic market that saw, in 2011, 33,000 people of working age move from other parts of the United Kingdom to Scotland, and another 35,000 move in the opposite direction. It is estimated that some 30,000 people travel in and out of Scotland to work each day. Why would we want to risk the protection that the UK economy gives not only Scotland, but England, Wales and Northern Ireland? Why would we want to put an international border in the middle of all this?

Critically, why would we want to lose the formal use of the United Kingdom pound? Let us be absolutely clear: in the event of independence, there will not be a currency union. I do not believe that that would be in the interests of Scotland or the continuing United Kingdom. Scotland would have no control over mortgage rates, and would be binding its hands on tax and funding for vital public services.

I did a Q&A session with some law undergraduates at Aberdeen University last autumn when the question of the currency came up. I made the point that the problem with a currency union would be that there would be no Scottish control over mortgage rates as well as limitations on tax and public spending. I said I could not understand why any self-respecting nationalist would want to sign up to that. At the end one of the undergraduates came up to me and said, “I am a self-respecting nationalist and I agree with you”.

The continuing United Kingdom would surely not put its taxpayers at risk of bailing out a separate state and its banks. It is inconceivable that Parliament would pass it or that the people of the continuing United Kingdom would accept it. That is why all three of the main political parties have ruled it out. It is economic issues such as this, which impact on our daily lives, that affect the decisions of voters, and for many, personal issues, such as whether we would be better or worse off in an independent Scotland. That question once again provides us with a positive case to vote no. By remaining part of the United Kingdom, people in Scotland will benefit from what has been labelled the “UK dividend”, which is worth £1,400 per year in lower taxes and higher public spending to every Scot.

This £1,400 derives from the clear economic benefits that Scotland gains from being part of the UK: a strong fiscal position; a large economy able to manage the volatility of declining oil revenues; stable borrowing costs; policies which are costed within the current economic climate; and a broad tax base, able to effectively deal with an ageing population.

I am not claiming, and the Government have not claimed, that Scotland could not or would not be able to be a separate state—of course it could. But it is important, too, to face up to the realities and acknowledge them. We must combat the many assertions so often alluded to by the Scottish Government. We must not allow those who raise reasonable questions or concerns to be silenced by intimidation or fear.

It is not only the economic case that demonstrates why we are truly better together. I am sure that during today’s debate we will hear arguments covering a full range of topics—the European Union, for example. The UK exerts its influence in Europe on behalf of Scotland and all parts of the UK on issues that matter to people and businesses in Scotland, such as budget contributions, fisheries and agricultural subsidies. This influence is exerted in Brussels, Strasbourg and across all member states. It is influence which ensures that Scotland has a loud voice at the top table, and will continue to do so as part of the UK.

It is a different story for an independent Scotland. First, there is the question of application. All 28 member states need to agree the process and the timescales. There is no automatic entry or special procedure for Scotland. There are European Union-wide rules that plenty of others have had to follow, so why should Scotland expect to receive special treatment? Perhaps more crucially, there is the question of the terms of membership. No one should assume that Scotland would be able to negotiate the same favourable terms of EU membership which the United Kingdom currently enjoys: an opt-out from the euro; an opt-out from the Schengen area; and the UK’s budget rebate, which is worth more than £3 billion to the United Kingdom taxpayer each year.

Let us recall that no other member state has negotiated its own rebate. Instead, as a new member state, Scotland would have to contribute to the United Kingdom rebate like all others. Let us be clear that the rebate could not be shared between states; it is the United Kingdom rebate, and a vote to leave the United Kingdom would be a vote to lose this. However, a vote to remain part of the United Kingdom would be a vote for each household in Scotland to continue to save money as part of the UK’s rebate—a vote to keep the United Kingdom’ s opt-outs and a vote to retain a place of influence at Europe’s top table.

One of the other issues that I have encountered in your Lordships’ House and around Scotland is the implications for the defence of Scotland, and the continuing United Kingdom. That is important in two particular respects. The United Kingdom has the fourth largest defence budget in the world—£33 billion to £34 billion annually, behind only America, Russia and China. Crucially, Scotland benefits and contributes to the full range of these defence capabilities. Scotland benefits by having the security of the United Kingdom defence forces fighting for our common values and interests, wherever needed, across the world—both in combat and peacekeeping activities.

Scotland contributes to this through its 11,100 Regular Armed Forces based in the country, rising to 12,500 by 2020, alongside thousands of reservists. This is all supported by a thriving defence industry employing around 12,600 people. Many of these jobs are at HM Naval Base Clyde. We need to be clear—and again to avoid the spread of assertions from the Scottish Government and those who would urge us to vote for independence—that companies based in an independent Scottish state could no longer be eligible for contracts that the United Kingdom chose to place domestically for national security reasons. Other than in world wars, the United Kingdom has not built a complex warship outside the United Kingdom since at least the start of the 20th century. Where they could continue to compete, Scottish yards would be pitching for business in a competitive international market dominated by major economic powers. That is not, as some would say, scaremongering: it is a statement of fact. It is important that we get that across.

In addition to the strength and bravery of our defence forces, the United Kingdom is a soft power superpower. Our culture, education, business environment, values and heritage help us to bring influence throughout the world and help us to use that influence for good. The United Kingdom is the second largest donor of international aid in the world—aid administered from East Kilbride in Scotland. By 2015, this United Kingdom department, based in Scotland, will have helped to immunise 55 million children against preventable disease; will have helped to save the lives of 50,000 women in childbirth and a quarter of a million new-born babies; and 60 million people will have access to clean, safe water, thanks to the United Kingdom’s aid programme.

Together, we have championed democracy and the rule of law around the world. We campaigned against slavery in the 18th century and drafted the European Convention on Human Rights in the 1950s. Together we have resisted invasion and conquest. We did not fall for the ideologies which blighted so many lives in the 20th century but together made sacrifices in opposing them.

However, it is not only our heritage and our history. A more recent example is the United Kingdom’s Preventing Sexual Violence initiative. This was the core theme of our presidency of the G8 in 2013, leading to a new United Nations Security Council resolution and a United Nations General Assembly declaration on sexual violence within conflict, which of course led to the summit hosted by the Foreign Secretary and Angelina Jolie earlier this month. The United Kingdom was to the fore among the states which launched the campaign for the United Nations Arms Trade Treaty, which was finally adopted last year.

I am not claiming that an independent Scotland would walk away from these values that it has shared with us over the past three centuries—far from it. I expect it would probably sign up to them. However, it would lack the clout and influence to bring about such initiatives and, rather, as a consequence of independence, would possibly reduce the United Kingdom’s ability to promote justice in the world.

When we say that Britain is a force for good in the world and that it punches above its weight on the world stage, it might seem like a soundbite but it is true. We are an influence for good in the world and we do punch above our weight. This has been recognised. Although they have said that it is a matter for Scotland, what Britain achieves together has been recognised in recent weeks by President Obama, by Hillary Clinton and even by his Holiness the Pope, who all admire the strength of the United Kingdom and believe that we—both an independent Scotland and the continuing UK—would be weaker without each other. We should be mightily proud of our role across the globe, a role that we play together as a result of being a United Kingdom. Together, over three centuries, we have made one of the great states of the modern world; we continue to be a force for good in the modern world; and I am confident that together we will continue to be so for many years to come. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part. It has been a remarkable debate in the quality of the contributions. Indeed, as in some of our earlier debates on this subject, we have had a range of very thoughtful contributions from noble Lords on all sides of the House, from all parts of the United Kingdom—Scotland, Wales, Northern Ireland, England and, indeed, Cornwall. That has enriched our debate.

One of the most important things that came through was the number of people who talked of their own experience. The noble Lord, Lord Soley, talked about working in Scotland as well as in England. The noble Lord, Lord Judd, talked about his family and what makes him what he is—a product of this United Kingdom. My noble friend Lord Dobbs said that he was a full-blooded Englishman but nevertheless has a great affection for and affinity with what we have achieved as a United Kingdom.

My noble friends Lord Glasgow and Lord Purvis and the noble Lord, Lord Kerr of Kinlochard, said that what they so much regret about the referendum debate is almost having to choose between being British and Scottish, whereas most of us think we can be British as well as Scottish—and indeed, European—whatever part of Scotland we come from. The noble Lord, Lord McConnell, talked about the strength and diversity within the United Kingdom. In spite—or perhaps because—of that diversity, we are a United Kingdom. We can celebrate the diversity and our unity.

I particularly thank my noble friend Lord Lang of Monkton for his reprise of the recommendations of the Constitution Committee’s very valuable report on the constitutional implications of the referendum and, specifically, of a yes vote. The Constitution Committee of your Lordships’ House has a well deserved reputation for full and detailed examination of key constitutional debates that we face in the UK. This latest report discussed in today’s debate is no different.

As I indicated in my opening speech, we will offer a full written response in advance of the due date of 16 July. The noble Lord, Lord McConnell, asked about that. I understood that the noble and learned Lord, Lord Morris, might have thought that that was a response to the McKay commission, so I make it clear that it is a response to the report that we are debating today.

I will offer a few reflections on behalf of the Government because the report rightly highlights that the constitutional stakes could not be higher. A yes vote in September would have a profound impact not just on Scotland but on people right across the United Kingdom. Those implications would be far-reaching and would extend far beyond constitutional points—to the economy, our place in the world, and our relationships with one another across these islands.

However, as the committee notes, at its very core the implications are set out in law; and it would be to the law that we would have to turn. Successive Governments have been very clear that it is for people in Scotland to decide if they wish to remain a part of the United Kingdom, or if they wish to leave and go it alone. That is why I say to the noble and learned Lord, Lord Morris of Aberavon, who indicated that the Welsh were not involved in the agreement signed in Edinburgh in October 2012, that it has been the view of successive Governments that if the people of Scotland wish to leave they should not be held in the union against their will. That was the background to the agreement.

However, as my noble friend Lord Purvis pointed out, it is one of the strengths of the union that, because we have established the rule of law and the basis of democracy, we are confident that these matters will be determined through the ballot box and not through means by which other countries in history have sought to claim their independence.

The referendum on 18 September will determine this question. I say to my noble friends Lord Shipley and Lord Caithness that, in a debate where both sides are almost invariably at odds with each other, the one thing that the two Governments have never disputed is that there should be only one referendum. It is important to recognise that if Scotland votes yes on 18 September it will be not only for Christmas, as one noble Lord said in his contribution, but decisive. The agreement reached was intended to be decisive and would be respected. The noble Lord, Lord McFall, asked whether that was set down when it was signed up to. In fact both Governments have said that it would be a decisive referendum that would be respected by both sides. Therefore one would expect that a no vote would be respected by those who have campaigned for a yes vote.

However, as the committee notes at paragraphs 38 to 43, if there is a yes vote, legislation delivered through this Parliament will be required to take Scotland out of the United Kingdom and to establish a new, separate state. I shall come later to the point raised by the noble and learned Lord, Lord Hope. The committee recognised that the extent and scope of that legislation may be very limited. Many subsequent orders will be required but the legislation itself could be quite limited. Much will depend on the agreement reached.

As I have said in your Lordships’ House on a number of previous occasions, these negotiations cannot begin in advance of the referendum as we must not pre-empt the outcome of the negotiations. To do so would require the United Kingdom Government to put themselves in the shoes of a Government of the continuing United Kingdom minus Scotland. It would require the United Kingdom to act in the interests of only one part of the United Kingdom rather than the whole of the United Kingdom. To do so in advance of a referendum would be to deliver exactly what the nationalists want—a United Kingdom that excludes Scottish interests and acts only in the interests of England, Wales and Northern Ireland. That is the reality of independence: it means that there will be two separate states, and where you have two separate states you have two separate sets of interests. Sometimes they will be mutual, sometimes not.

Later in the committee’s report the question of who should make up the negotiating team for the rest of the United Kingdom was raised. As someone who has represented a Scottish constituency in the United Kingdom Parliament as well as in the Scottish Parliament, and as someone who will continue to be resident in Scotland after the referendum, whatever the result, I find the report’s recommendation on the role of Scottish representatives and the exclusion of those who would have a conflict interest very compelling.

I turn now to the points highlighted by the committee, including representation of Scotland within the UK Parliament and by the UK Government in the period between a referendum which endorsed a yes vote and independence day. In paragraphs 56 to 58 of the report the committee raises the risk of constitutional limbo. This issue was raised in his introductory speech by my noble friend Lord Lang, by the noble Lord, Lord Kerr, and by the noble and learned Lord, Lord Cullen of Whitekirk. I have looked back at the context in which my right honourable friend the Secretary of State for Scotland answered that question. It was in the context of negotiation, whereas, as I have just said, you cannot have negotiations where there are different sides of the argument.

However, to make it clear, during any negotiations Scotland would still be part of the United Kingdom and public services would be delivered as they are now. This means that the Scottish Government would continue to be responsible for health, education, justice, rural affairs, housing and transport in Scotland as well as the other devolved matters, and the United Kingdom Government would continue to be responsible for reserved matters. I do not think that the noble and learned Lord expected the Electoral Commission statement to contain the whole list of Schedule 5. However, the key ones are there and there is nothing sinister about the ones that were mentioned or not mentioned. The United Kingdom Government would continue to be responsible for reserved matters, including defence, security, foreign affairs and the constitution, plus pensions, benefits and most tax powers up to the date when Scotland became an independent state.

During the negotiations, the two Governments would continue to discuss any policies of either that affect the responsibilities of the other. Equally clear is the reality that a vote to leave the United Kingdom is a vote to leave its institutions, including the Houses of Parliament. The timing of any changes would have to be settled in the event of a vote for independence.

I sincerely hope that there is a clear endorsement—a view expressed by all noble Lords with the exception of the noble Lord, Lord Elis-Thomas—of Scotland’s place in the United Kingdom. If there is not, that is when the negotiations will begin. I suspect that they will take as long as necessary to ensure that both sides are content, rather than fitting neatly into a timetable laid down by the Scottish Government. I hope that that answers the question raised by noble friend Lord MacGregor. The noble Lord, Lord Robertson, with his experience of negotiating seven NATO entries, indicated that that was not by any means an easy process. As the noble Lord, Lord Kerr of Kinlochard, pointed out, as did my noble friend Lord Garel-Jones, negotiation of entry into the European Union is by no means a straightforward matter either.

As people have said before, it is the deal in any negotiation that is important and not the date. With regard to the negotiations themselves, as the Constitution Committee report notes, the starting point for them is predetermined by the legal position that underpins all of this debate. The first of our Scotland analysis papers dealt with the legal and constitutional position of Scotland within the United Kingdom and the implications of independence. This was the right place to start, because it is from the law that political realities and experiences will flow. The legal reality is clear: the rest of the UK would be the continuator state in the event of independence. Scotland would leave and become a new successor state. I welcome the committee’s clear endorsement of this position in the first of its conclusions.

This key legal point has a number of ramifications. The United Kingdom would continue to be a member of all the international bodies to which it is currently party: the European Union, permanent membership of the Security Council of the United Nations, NATO, the G7 and the G20. As a new successor state, Scotland would need to apply for and seek new terms of membership. Those negotiations cannot in turn be prejudged in the way that the Scottish Government and advocates of independence seek. As has been pointed out in this debate, 28 member states of the European Union, each of which will wish to protect and represent the interests of its citizens, will have to sign up to these negotiations. Many of these states have had to accept terms of EU membership from which the Scottish Government expect to be exempt.

In the previous debate I did not wish to seem dismissive of the points made by the noble Lord, Lord Kerr of Kinlochard. I hugely respect the experience that he brings to these matters, but it would not be right to speculate on how negotiations could work. Previously I perhaps raised an eyebrow more with the idea that the Scottish Government would find it acceptable for the United Kingdom Government to negotiate on their behalf: I just think that you need to say that there could be some political issues around that, but I certainly do not dismiss lightly what the noble Lord, with his experience, says.

As I noted at the start of today’s debate, the Government will respond in full to the committee’s recommendations, ahead of the response deadline. I hope that I have given some indication of our likely response to some of the key points made by the committee and repeated during this debate, and a clear sense of the approach that the United Kingdom Government are taking on these issues.

I turn to some of the other points that have been raised. In reference to the Edinburgh agreement I indicated that it is one wherein the United Kingdom and Scottish Governments agreed to work together to ensure that the referendum on Scottish independence could take place on a legal basis. I think that the noble Lord, Lord Foulkes, thought that we had been tricked into it. Noble Lords might want to think about this for a moment. With the SNP having won—with a manifesto commitment to a referendum—a majority of seats in the Scottish Parliament, in which the noble Lord, Lord Robertson, and I have some responsibility for the electoral system used, neither of us or many others thinking that any party could win a majority, it is not unreasonable that the referendum was facilitated. I rather think that Mr Alex Salmond, with the cunning wiliness referred to by the noble Lord, Lord Foulkes, hoped that the United Kingdom Government would say no and give him ever more of a grievance.

[Lord Foulkes of Cumnock]

A 45% vote on a 50% turnout is not an overwhelming mandate. I am not saying it is overwhelming in one direction or the other but it is arguable that it did not provide the mandate and there could have been further discussions. I also said that in the discussions the UK Government seem to have conceded on every issue—issue by issue.

[Lord Wallace of Tankerness]

My Lords, I do not accept that. In a PR election, to win an outright majority of seats—the political reality was that there was an expectation that if we had sought to thwart that, it would have played into their hands. There was the possibility that they would have run their own referendum, which we would have argued was not legal, and we would have been embroiled in a constitutional mire. The fact is, there is a binary question, yes/no, but I rather think that some in the nationalist cause would have liked to have muddied the waters with a third question and allowed us all the time to negotiate among ourselves what the third option would be, thus taking our eye off the ball and not tackling the main issue, which is whether Scotland should be an independent country.

The noble Lord, Lord Birt, made important points about the BBC. As the committee indicates, that is one of the institutions that would belong to the continuing state. He highlighted the detriment that Scotland leaving the UK would cause the BBC: 10% less funding for BBC programmes and for the rest of the UK. He also pointed out, importantly, that of course the BBC is independent of government and any negotiations it had with the Scottish broadcasting service would be akin to the kinds of negotiations that I am sure it has with many other national broadcasting companies throughout Europe and the rest of the world. Unlimited access to BBC services in an independent Scotland would cost money, and it is naive and indeed misleading for the Scottish Government to pretend that everything would just go on as before.

The noble Baroness, Lady Adams, asked about English universities. Access for Scottish students would be the same as for those from other European Union countries. The other thing that is slightly odd is the Scottish Government trying to pretend that English students coming to Scottish universities could be treated differently from those from other European Union countries.

[Baroness Adams of Craigielea]

On that point, given that if Scotland voted yes it would no longer be part of the European Union, how then would Scottish students be treated?

[Lord Wallace of Tankerness]

Indeed, if Scotland was a member of the European Union, they would be treated the same as everyone else from there; if it was not, they would be treated the same as international students from India or wherever. Of course, if Scotland were to be part of the European Union—a point that I think the noble Lord, Lord Foulkes, is about to latch on to—the idea that you could allow free tuition for students from every other European Union country and charge English students does not have any sound basis. It is difficult to say that you want to enter into a social union with other parts of the United Kingdom but one of the first things you do is charge its students when you are not charging anyone else.

[Lord Foulkes of Cumnock]

I know it is difficult but it has already been said. Mr Salmond has said that they would not get free tuition—that English, Welsh and Northern Irish students would not be treated as other European students. That is what we are facing. We are doing everything by the book. We are treating these matters honourably. People on the other side of the discussion are not.

[Lord Wallace of Tankerness]

My Lords, there is such a thing as the European Court of Justice, and anyone who attempted to fly in the face of what most people would think of as accepted European Union law may find that the law caught up with them.

My noble friend Lord Cormack and the noble Baroness, Lady Adams, talked about their grandchildren and how they do not wish to see opportunities cut off and cannot understand why we would want to build barriers. That has been reflected in many schools, where there have been substantial no votes. It shows that in an era when young people can communicate so easily, when the communication barriers have been broken down because of modern technology, the idea that you would start erecting barriers is something that many of them just cannot comprehend. That is a great strength for our union as we look forward.

My noble friend Lord Caithness asked about the draft Bill. I confess that we have not yet done any analysis of it. My noble friend Lord Lester of Herne Hill, however, was telling me the other day that he has already identified two or three inconsistencies with the European Convention on Human Rights, and if my noble friend has identified them, that probably means that they are right. It is not a very good start for a constitution if it seems to fall foul of the European Convention on Human Rights.

The noble and learned Lord, Lord Hope of Craighead, raised the question about whether it could be a Section 30 order. It is clear that independence cannot just be asserted. The terms of an agreement reached between the representative of an independent Scotland and a continuing UK would have to be that: an agreement. I have already indicated what the position would be with regard to the period between the date of a referendum if there were to be a yes vote and the date of independence, and all the responsibilities that the United Kingdom Government would have. The quote that I gave was a direct quote from the statement given jointly by both Governments to the Electoral Commission, so the Scottish Government themselves have signed up to that.

The noble and learned Lord, Lord Cullen, made a point about how long it took to get that agreement, and that was just an agreement to make a statement. That might put into context how long it might take to negotiate an independence settlement. If Scotland chooses to leave the United Kingdom, it must be prepared to do so whatever the terms, because the terms cannot be known in advance.

As the report of the Constitution Committee indicates, there could be possible difficulties with a Section 30 order if it was challenged in the courts that the use of the Section 30 order had gone beyond what Parliament intended an order to do—if it were bringing in independence when in fact that was clearly never the intention of Parliament.

[Lord Hope of Craighead]

To be clear, is the Minister saying that what is contemplated, at least by the Government, is that there would have to be legislation through both Houses of Parliament in order to facilitate the independence Bill that is now on the table?

[Lord Wallace of Tankerness]

I think I said in my evidence to the committee that there was a possibility of a Section 30 order but that there are difficulties with that. I indicated that there might have to be very limited legislation, if only to allow the Scottish Government to put together a negotiating team and enter into negotiations. As the noble and learned Lord probably knows better than anyone in the House, along with the noble and learned Lord, Lord Cullen, the propensity for some people to litigate in areas like this could be very great. If that were the situation that we were in, although we sincerely hope that it will not be, it would be important to put the negotiations on a proper legal footing so that they could not be subject to some further challenge.

[Lord Purvis of Tweed]

I am conscious not to take up more time. Following on from the point made by the noble and learned Lord, Lord Hope of Craighead, the Scottish Government have put forward, in the documents that have been referred to, the assertions that the Scotland Act would be revised again. They have said that, together with the enactment of the Scottish independence Bill, the existing Scotland Act would be amended, but in the document they have not said by whom and when.

If I am correct in thinking that the concordat still exists between the Scottish Government and the UK Government that any proposals put forward by the Scottish Government that may impinge on reserved matters should be discussed in advance with the United Kingdom Government, was there any discussion or any forenotice by the Scottish Government that they would be bringing forward this matter, drafted by civil servants and presented to the people of Scotland as a Scottish Government paper?

[Lord Wallace of Tankerness]

I can confirm that there were no prior discussions with the United Kingdom Government on that matter. Finally—

[Lord Forsyth of Drumlean]

Surely my noble friend is not telling the House that in the event of Scotland voting to leave the United Kingdom, that would not be a matter that would require legislation approved by both Houses of Parliament?

[Lord Wallace of Tankerness]

I made that clear earlier: we are talking about an interim Bill. As I indicated earlier, in response to the point made by my noble friend Lord Lang of Monkton, yes, we have indicated that there would have to be legislation. The scope and extent of it would very much depend on the terms of the agreement reached; they may not have to be very extensive. However, I confirm that there would have to be legislation to bring about independence. I hope that that is clear and unequivocal. My noble friend looks doubtful but I am saying that there would have to be legislation to bring about independence.

[Lord Forsyth of Drumlean]

That is a bit weaselly, because it suggests that a deal could be done between the two Governments and then there would be a kind of confirmatory piece of legislation. If we are talking about breaking up the United Kingdom, this is a matter not just for the Executive but for Parliament as a whole.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, of course the Executive are answerable to Parliament. That is self-evident, as we well know. It is impossible to speculate on this because we do not actually know what the terms would be. I am just confirming that there would have to be legislation. I cannot speculate about what would be in the legislation because I have no clue what kind of negotiations there would be or what agreement would be reached. To try to speculate would go against the grain of what we have said about there being no pre-commitment or pre-negotiation.

[Lord Foulkes of Cumnock]

I am sorry to keep everyone but this is a very crucial matter—as the noble Lord, Lord Forsyth, indicated. The noble and learned Lord, Lord Wallace, has said that the Government have not yet considered fully the terms of the interim so-called constitution drafted by the Scottish Government. Perhaps he could tell us today that the Government will look at that, and report back to this House on it, and then we can have a further debate. We really must consider this. As I said in my speech, we are getting bounced into one thing after another. We should be damned sure that we are not bounced into this one.

[Lord Wallace of Tankerness]

My Lords, we certainly shall look at it, although whether we can have a debate between now and the House rising I just do not know. However, I hope we are not confusing two things. Of course, a constitution would be a matter for the independent Scotland. It would post-date independence. I think the noble and learned Lord, Lord Hope, talked about an interim Bill, and that was what was being discussed.

[Lord Hope of Craighead]

I simply adopted the language of the Scottish Government. They produced this draft Bill to carry the matter forward as from independence day on an interim basis until the new constitution forecast at the end of the Bill was passed. It is incredibly important to know what we are to make of the interim Bill. Among other things, it proclaims that every Scots person is to be a citizen of the European Union as from independence day, although we all know that Scotland will not be a member of the European Union. It is full of flaws of that kind and we simply cannot give them carte blanche to pass it through without discussion.

[Lord Wallace of Tankerness]

My Lords, what an independent Scotland does after independence day would be a matter for an independent Scotland. I think that is common ground. If it wants to legislate nonsense then it can. That would be the decision of an independent Scotland.

[Lord Cormack]

I am very troubled about this, as many of us are, against the background of the deal the Government did with the Scottish Government. My friend the noble Lord, Lord Foulkes, nods vigorously. Can we at least have an absolute undertaking from my noble and learned friend that when the Government have considered this we will have a full Statement in the House and an opportunity to ask questions?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I cannot make that commitment but I certainly gauge the mood of the House. If it might help, I think perhaps that at some point we have confused two different things. The point I made to my noble friend Lord Forsyth is that there would have to be legislation going through this Parliament to establish Scottish independence. That is very clear. That is what I said to the committee and I think I am right that it was accepted.

[Lord Robertson of Port Ellen]

The Minister says we are getting confused and he is very accurate. It seems that what the noble and learned Lord, Lord Hope, said related to what the Scottish Government might do in the Scottish Parliament following the yes vote and before independence day took place. That is where the worry comes in. What they do after independence—if that day should ever happen—is up to them but if they bounce us in the interim period by passing through the Scottish Parliament this draft constitution, then that should really worry all of us.

[Lord Wallace of Tankerness]

My Lords, I am very grateful to the noble Lord for clarifying that. I think that the question asked by my noble friend Lord Forsyth related to the Act enacting independence rather than independence itself. The noble Lord, Lord Robertson, is right: what happens after independence is a matter for the Scottish Parliament. What happens between a potential yes vote on 18 September and the date of independence is a different matter because the present law of the United Kingdom would still apply. As I believe that the present law of the United Kingdom, including the Scotland Act, does make provision for Section 30 orders, the orders would have to be passed—we are not changing the procedure of them—by both Houses of this Parliament, as well as by the Scottish Parliament.

I have also indicated to the noble and learned Lord, Lord Hope, that there are legal issues and doubts about whether that would be an effective way of doing it, because there is a concept that we cannot use secondary legislation to effect an outcome that is totally contrary to the intention of the original legislation—as Hadfield has it. The original legislation was not enacted to establish an independent Scotland, so using a Section 30 order to bring about de facto independence could be challengeable. That ultimately would be a matter for the courts, so I will not put it any higher than that; but such a course of action could be fraught. I hope that that is clear.

On responding to the particular points about the interim, I will bear in mind what is being sought.

[Lord Forsyth of Drumlean]

Before my noble and learned friend sits down, is he saying that there is no question of a Section 30 order being used to effect this?

[Lord Wallace of Tankerness]

Yes, that is what I said. It would not be the right way and would be susceptible to legal challenge.

The Scottish Government have set out proposals that contradict the agreement set out in the Electoral Commission statement. The Electoral Commission statement makes it very clear, and both Governments agreed, that as far as reserved matters are concerned, the United Kingdom Government would continue to be responsible for them. That is what the law is, and it will continue to be so until the date of independence.

I shall conclude briefly. We have had a very good debate, and we have been told to be positive. Such has been the success of the United Kingdom, however, that the yes campaign perhaps makes the best case for us. If one looks at the Scottish Government’s White Paper and at the yes campaign, one sees that such is the success of the United Kingdom, they want to keep much of it. They want to keep the monarchy; they want to keep the currency; they want to keep the Bank of England; they want to keep the National Lottery; they want to keep the NHS blood transfusion and transplant service; they want to keep the Royal Mint; they want to keep the research councils; they want to keep the air and maritime accident investigation branches; they want to keep the Committee on Radioactive Waste Management; they want to keep the Green Investment Bank; they want to keep the Met Office; they want to keep the Hydrographic Office; they want to keep the UK benefits system; they want to keep the DVLA; they even want to keep “Strictly Come Dancing” and “EastEnders”. What better advert can there be for the United Kingdom than how much of it the independence-minded nationalists actually want to embrace?

We have shown that we have a remarkable partnership of nations. For all our achievements and all our successes, and for all the support we give each other in difficult days, we have a United Kingdom of which we can be legitimately proud.

I apologise—I should have said more about the overwhelming challenge of a new United Kingdom. I had quite a bit to say on that. I will only say that I have heard noble Lords. Obviously, I cannot give a commitment tonight about a new convention for the whole of the United Kingdom, but I hear the comments from all round the House—cross-party and cross-country, and not just about the United Kingdom but about decentralisation. These are matters on which my colleagues in government will wish to reflect with the seriousness with which they were put forward in this debate.

I have tried to answer as many questions as I can. I sincerely hope that on the key date of 19 September we will be looking forward and not having to deal with some of the issues raised in the admirable report from my noble friend Lord Lang of Monkton and his committee.

Motion agreed.

Crime: Domestic Violence

Lord Wallace of Tankerness Excerpts

Tuesday 13th May 2014 Lords Chamber

[Baroness Gale]

To ask Her Majesty’s Government what assessment they have made of the number of prosecutions brought for domestic violence.

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

My Lords, the number of domestic violence cases referred to the Crown Prosecution Service by the police reduced in 2012-13. However, the conviction rate for such cases was 74.3%, its highest ever recorded level. The fall in referrals was considered in a report on the police response to domestic abuse published by Her Majesty’s Inspectorate of Constabulary in March 2014. The Home Secretary will be chairing a national oversight group to monitor delivery against HMIC’s recommendations, improve consistency in charging and ensure that the police make appropriate referrals to the CPS.

[Baroness Gale (Lab)]

My Lords, I thank the Minister for his response. He mentioned that the number of referrals by the police had increased and the number of successful prosecutions had reduced. The recent report from HMIC shows that police forces are failing and that victims of domestic violence have been faced with a lottery. The report concluded that the overall police response to victims of domestic abuse is not good enough. Does the Minister agree that much more needs to be done to ensure that police forces are trained and fully aware of what they need to do to ensure that victims of domestic abuse and women who are murdered at the hands of their partners and ex-partners will receive the correct response from police forces so that the perpetrators can be brought to justice?

[Lord Wallace of Tankerness]

My Lords, I very much agree with the noble Baroness, who has a long record of campaigning and taking an interest in this issue. Just to clarify, it is the number of successful prosecutions that was at the highest level ever recorded. However, I agree with what she said about the conclusions of the HMIC report—they are very disturbing. That is why the Home Secretary will chair a national oversight group to monitor delivery against the recommendations, which have been accepted. She has already written to the domestic abuse leads in each police force and to the chief constables to make clear the expectation that plans should be produced quickly and emphasise that urgent action should be taken to address HMIC’s concerns. The noble Baroness is absolutely right that domestic violence is wholly unacceptable and is very damaging to the victims. It is only right that we take every step possible to improve the prosecution of it.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that domestic violence is a gravely reprehensible offence which should normally be dealt with by way of condign punishment? Is that not so because of the greater vulnerability of women in terms of physical strength, economic security and particularly the protection of children? Is the Minister satisfied that the advisory sentencing bodies are sufficiently enthused to pass on this message to magistrates and judges and that this is essential if this disgraceful practice is to be effectively contested?

[Lord Wallace of Tankerness]

My Lords, I echo what the noble Lord said about it being a wholly reprehensible crime. Among the many concerns, I am not aware of the particular question of sentencing. There may well be individual cases where individual sentences are not acceptable. The important challenge for us, particularly in the light of the HMIC report, is to improve policing. It is unfortunate that the report has discovered a cultural issue where:

“Domestic abuse is a priority on paper but, in the majority of forces, not in practice”.

We have to address that issue and tackle it in following up the recommendations of the HMIC report.

[Lord Lester of Herne Hill (LD)]

My Lords, as my noble and learned friend probably knows, the Joint Committee on Human Rights, on which I serve, is conducting a major inquiry into this general subject. Without being in any way complacent, would he agree, as I think he has already said, that it is a matter of some satisfaction that the former Director of Public Prosecutions, in his 2013 report, found that, for the first time, three out of four violence against women and girls prosecutions have resulted in a conviction; that domestic violence, rape and sexual offence prosecutions have reached their highest conviction rate to date; and that guilty pleas have led to most successful outcomes, avoiding the victims having to face the ordeal of a trial?

[Lord Wallace of Tankerness]

My Lords, my noble friend rightly points out that the number of guilty pleas has also increased, which is helpful in relieving victims from having to give evidence. Although prosecutions are at their highest level, it is also fair to say, in tribute to the previous Director of Public Prosecutions, that when he saw the reduction in the number of referrals in the reports and information which he was given and published, he immediately convened a round-table conference among the key stakeholders. Six action points were taken forward from that, which my honourable friend the Solicitor-General announced in the other place. I know that it is also the case that the present Director of Public Prosecutions takes this crime very seriously.

[Baroness Thornton (Lab)]

My Lords, as my noble friend has said, since 2010-11 there has been a 13% increase in reported incidents of domestic violence but fewer cases have been passed to the CPS. If we take that together with the fact that there has been a 31% reduction in funding for refuges for those who are subject to domestic violence, would the Minister agree with Women’s Aid that that means that women and children are more likely to remain in or return to abusive situations? Will the Government’s review make an assessment of how many more women and children are now at risk and will the Government bring forward plans to deal with it?

[Lord Wallace of Tankerness]

My Lords, an important recommendation from the HMIC report not only looked at the question of policing and the great variations within it across the country but noted that tackling domestic abuse requires organisations in both the statutory services and the voluntary community services to work together to give proper multiagency support to victims of domestic abuse. Again, that is a recommendation that the Home Secretary has accepted. I think it is common ground across the House that we need to be very active in giving effective support to victims of domestic abuse.

Scotland Act 1998 (Modification of Schedule 5) Order 2014

Lord Wallace of Tankerness Excerpts

Wednesday 7th May 2014 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the draft Scotland Act 1998 (Modification of Schedule 5) Order 2014.

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

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

My Lords, I shall provide a brief summary of what this draft order, which was laid before the House on 17 March 2014, seeks to achieve. The order is made under Section 30(2) of the Scotland Act 1998, which 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 Parliament and the Scottish Parliament. This order will amend Schedule 5 to the Scotland Act 1998, which I shall refer to as the 1998 Act, to update the definition of “food” in that Act. It will also amend Section J4 of Schedule 5 to the 1998 Act to reflect the agreement reached regarding the regulation of animal feeding stuffs.

Upon devolution, the regulation of food safety and standards was devolved under the 1998 Act. As at 1 July 1999, the 1998 Act understood “food” to be as was defined by the Food Safety Act 1990. Post devolution, that definition was changed on a GB-wide basis by the Food Safety Act 1990 (Amendment) Regulations 2004 to align it with the new European Union definition of “food”. The definition at devolution and the definition post devolution are largely similar, but they are not identical. I would like to be clear that this is a technical, legal difference and there is not necessarily a specific food which would have fallen under one definition and not the other. Importantly, this 2004 change resulted in a mismatch between the legal definition of “food” in the 1998 Act and “food” as it was defined in EU law. The legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers was, therefore, limited by an out-of-date definition of “food”. This was never the intention of the 1998 Act.

Similarly, in relation to non-medicinal animal feed and additives, the regulation of animal feed safety and standards was also devolved under the 1998 Act, except for the regulation of veterinary medicines, which was reserved. Section J4 in the 1998 Act reserves the subject matter of the Medicines Act 1968, which I shall refer to as the 1968 Act. Section 130(1) of the 1968 Act, as it stood as at 1 July 1999, defined “medicinal product” as including substances fed to animals and, therefore, veterinary medicinal products. However, it was subsequently agreed between the Veterinary Medicines Directorate—an executive agency of the Department for Environment, Food and Rural Affairs—and the Food Standards Agency that certain zootechnical additives, which do not have a medicinal effect on the animals that consume them, should be regulated within the framework of animal feed law rather than veterinary medicines legislation. It was agreed that the Veterinary Medicines Directorate would regulate for the UK all matters falling within the scope agreed and set out in the Veterinary Medicines Regulations 2005. Although those regulations have since been revoked, being replaced or amended by new veterinary medicines regulations almost every year, the definitions of “veterinary medicinal product” and “specified feed additives” have been unchanged since 2005. In effect, certain animal feed-stuffs and additives ceased to be veterinary medicinal products yet continued to fall within the scope of the reservation stated at Section J4 in the 1998 Act. Thus, the legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers was limited.

To address these problems, in 2005 and 2006 orders were made under Section 63 of the 1998 Act to update the executive competence of the Scottish Ministers by transferring certain necessary functions to them. These orders allowed Scottish Ministers to continue to regulate for food safety and standards by giving full effect to EU law, and also allowed them to legislate for, and control, all non-medicinal animal feed in Scotland. However, those orders did not, and could not, address the issue of the Scottish Parliament’s legislative competence in these areas. This Section 30 order will bring the Scottish Parliament’s legislative competence better into line with the executive competence of Scottish Ministers, both by updating the definition of “food” in the 1998 Act—thus bringing it into line with European Union legislation—and by amending Section J4 of Schedule 5, with respect to animal feeding stuffs. We believe that this order is a sensible way of addressing the anomalies I have described.

This order demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work in a very practical way. I hope the Committee will agree that this order is a reasonable use of the powers in the Scotland Act 1998. The order was debated in the House of Commons on 29 April this year and received the approval of that House on 30 April. I commend the order to the Committee. I beg to move.

[The Earl of Mar and Kellie (LD)]

My Lords, I thank the Minister for explaining the content of the order. I welcome any move that is devolutionary in character. I certainly believe that Scottish-branded food and the animal feed-stuff that goes toward producing it are a central part of the Scottish economy and the tourist economy. I believe that Scottish farmers and growers are some of the most efficient in the world and that the Scottish Parliament therefore should certainly be in direct control of this type of regulation.

--- Later in debate ---

My noble friend Lord Foulkes also mentioned the slightly wider issue of sittings of the House. I know he feels strongly—quite rightly—about sittings but he did not mention that the principle of simultaneous sittings of both Houses of Parliament seems to have gone. Time after time, Parliament sits, but only one House of Parliament. That is dodging accountability. Last week, we had Statements on the Floor of the House of Commons but nothing in the House of Lords, because we were not here. This Government are going down the road of accepting the very dangerous principle that Parliament can sit, but with only one House. However, that is a slightly wider issue, and I place on record our full support for the Minister’s explanation and for the order.

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have participated and thank them for the welcome they have given the order. My noble friend Lord Mar and Kellie was absolutely right to remind us of the importance of the food industry in Scotland and the importance of maintaining its quality.

My noble friend the Duke of Montrose raised some technical issues. He asked whether, following devolution of zootechnical feed regulation, matters would work in the same way in England and Wales as in Scotland and whether it would be necessary for Scotland to set up its own veterinary medicines directorate. Veterinary medicines will continue to be regulated by Defra. It is because certain items in the EU definition were removed from the definition of veterinary medicines that we are having to make this adjustment. Veterinary medicines will continue to be regulated by Defra—in practice by the Veterinary Medicines Directorate—and so the system will be the same in England and Wales as it is in Scotland. Non-medicinal zootechnical issues will be devolved, but that will be about implementing European Union law, and there will therefore still be consistency north and south of the border.

[Lord Foulkes of Cumnock]

The Minister made a point in relation to the question from the noble Duke, the Duke of Montrose. Can he confirm that the work undertaken by Defra, in Scotland as well as in England and Wales, is one of the many things that would have to be torn apart if Scotland separated from the rest of the United Kingdom?

[Lord Wallace of Tankerness]

The noble Lord makes a very alert and important point. The Veterinary Medicines Directorate is a directorate of the United Kingdom Government and would not automatically be transferred or shared in the event of a yes vote—which I hope will not happen. It is yet another example of one of the many institutions and agencies which operate on a Great Britain basis. I believe they operate successfully on that basis.

In response to the noble Lord, Lord Foulkes, Parliament should certainly not just be a rubber stamp for the Government. It is important to put on record that the process we are following here is set out in a law passed by Parliament. As I have indicated, this order has been debated in the House of Commons and approved by it. The fact that we are having a debate on it is very healthy and right and proper. The issue is, indeed, technical but nevertheless the debate has offered noble Lords an opportunity to express their views and to ask some very pertinent questions.

I certainly agree with the point made by the noble Lord, Lord Foulkes, which I think was echoed by the noble Lord, Lord McAvoy, and my noble friend Lord Mar and Kellie, that this is an example of the devolution settlement working. I think that it is a very good example of that. It is a technical issue but it shows a willingness to address practical issues in a practical way as and when they arise. Under the previous Administration, a certain amount of executive devolution was achieved on these issues through a Section 63 order. However, we now have a position whereby the Scottish Government have decided to establish a new food body for Scotland which will take on the roles and responsibilities of the UK-wide Food Standards Agency. Therefore, there is legislation going through the Scottish Parliament and a Bill has been drafted to sit within the limited sphere of legislative competence in relation to food and animal feed as set out in the 1998 Act. If this House passes the order—it will also need to be passed by the Scottish Parliament and then submitted to Her Majesty in Council—the Scottish Government intend to seek an amendment to widen the scope of the Bill to bring it in line with the scope of the existing food and animal feed law, as amended by this order. Therefore, the issue is of practical relevance given that the Bill is currently before the Scottish Parliament.

We have shown good will in negotiations and discussions with officials in the Scottish Government, my own department and other departments of the UK Government, not least Defra. That is a good practical example of the flexibility of the system. People refer to the status quo but I do not believe that there is any such thing as the status quo in relation to something which has evolved since 1 July 1999. The system has shown its ability to respond to different circumstances and I sincerely hope will continue to do so as we move forward. I again commend the order to the Committee.

[Lord McAvoy]

Before the noble and learned Lord sits down, would he care to comment on the limited ability to hold a Government to account due to the lack of sittings?

[Lord Wallace of Tankerness]

My Lords, I will have to check but I do not think that there are many, if, indeed, any, fewer sitting days this Session than in the previous Session. The number of sitting days is not far off that for the previous Session. No doubt my noble friend the Leader of the House would be able to give the exact figures. I do not think that it is unique for one House to sit when the other is not. That probably happened under the previous Government as well. I am sure that the noble Lord will welcome the fact that the House will not sit in order to accommodate the Liberal Democrat conference in Glasgow in October. I do not welcome it as I have lost my excuse for not attending the conference. However, that does mean that the two Houses will be in step as regards when they are sitting, or not sitting in that case.

Motion agreed.

Immigration Bill

Lord Wallace of Tankerness Excerpts

Tuesday 1st April 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I want to add just a word or two with reference to Amendment 16, in the name of the noble Lord, Lord Watson of Invergowrie, which would insert a new provision dealing with “the best interests of children”. In supplement to what he said, the Supreme Court has paid a lot of attention over the four years of its existence to the UN Convention on the Rights of the Child, to which this country is a signatory. Almost at every opportunity where the issue has arisen, it has stressed the need to promote the best interests of children in dealing with immigration issues, so the point is of some general importance.

The point I wish to draw to the Minister’s attention concerns proposed new Section 117A(2), inserted by Clause 18, which contains the phrase:

“In considering the public interest question, the court or tribunal must … have regard”—

to the provisions that follow. Those words remind one of the words in Section 2 of the Human Rights Act 1998. The noble and learned Lord may recall that there is some debate going on as to the extent to which the courts in this country must feel themselves bound by decisions of the Strasbourg court or whether in performing the Section 2 duty of having regard to—I think the wording of the Act is “take into account”—they can rate what they see and weigh it up but not necessarily feel themselves bound to follow it. The question is: which of these two alternative lines is the Minister contemplating by the use of the phrase “must have regard to”? Is this something that is in the form of a duty, which gives no leeway to the court and therefore it must follow the language precisely as it finds it in the succeeding subsections, or is it, as some people would say about the Strasbourg court, that one can see what is said but there is room for manoeuvre at the same time?

The noble Lord, Lord Watson, explained the point very clearly. When one is considering any public interest considerations that involve children, one will have regard to the existing jurisprudence, the convention rights and so on. The fact that children are not mentioned expressly, except in the very helpful new clause coming in via Amendment 58, does not mean that the court cannot have regard to their best interests. If the Minister would confirm that, that would be extremely helpful, given the nature of the language in proposed new Section 117A(2).

As I hope the noble and learned Lord will appreciate, there will be some read-across from the way the jurisprudence has developed with reference to the Human Rights Act to how one starts the whole exercise that this new clause is dealing with. It is really very important to be clear about how one approaches the entire package in understanding the various criticisms that have been made.

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

My Lords, first, I thank not only the noble Earl, Lord Sandwich, but others who have spoken to amendments in this group, because it is of considerable importance that in dealing with these important immigration matters, the interests of children are kept very much in our minds and that we give proper consideration to them.

The noble Earl, Lord Sandwich, raised a point about the withdrawal of assisted voluntary return for immigration detainees. In the short time since he spoke, the information I have received is that the Government prefer illegal migrants to depart voluntarily and go to considerable effort to help them to do so. Those who refuse to go voluntarily may well have to be detained and have removal enforced. Until 31 March, detainees could apply for an assisted voluntary return package. However, the evidence was that that increased delays and costs. I do not think that anyone believes that it is in anyone’s interest to have a drawn out removal process. I confirm that there remains the opportunity to depart voluntarily with assistance, but those who do not co-operate will not fall within that and will be removed. I appreciate that that is perhaps a sketchy answer, but I think that the best thing is to give further chapter and verse by writing to the noble Earl to explain in more detail precisely what are the policy considerations that have led to that provision.

The amendments raise important issues about the best interests of children and the proportionality of decisions under the qualified right to respect for private and family life under Article 8 of the European Convention on Human Rights. I turn first to the amendment in the name of the noble Earl, Lord Sandwich. It is right that the best interests of the child in the United Kingdom should be a primary consideration in the certification process. The noble Earl, Lord Listowel, asked me to confirm that. There will no doubt be cases in which deportation appeals are not certified because of the risk that serious irreversible harm may be caused to a child, but the amendment would make the best interests of the child a trump card over any other consideration, including the strong public interest in seeing foreign criminals deported quickly. Under the amendment, a foreign criminal or deportee would be able to use a child who may have been in the UK for a matter of only days or weeks—there is no definition of a qualifying child—to avoid certification of their appeal and an early departure from the United Kingdom.

The noble Earl asked about parents who will be deported before appeal. The test will be whether serious irreversible harm is likely to result from a temporary separation, pending an appeal on the particular facts of the case. The best interests of children in the United Kingdom will, as I said, be a primary consideration. The courts have reflected that in many cases. It is a primary consideration—not the overriding, trump-all-else consideration, but a primary consideration which they are obliged to take into account. That will be taken into account in the decision whether to certify as well as in making the original decision.

The other effect of the noble Earl’s amendment would be to rely on the presence of the child, even if the parent—the person subject to deportation—did not care for the child or had no relationship with the child. We do not think that that can be right. The certification power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The power is tightly defined to ensure that only those who have caused or are trying to cause us harm are deported from the country quickly. Its operation should not be impaired by the impact of the amendment.

I turn to Amendments 16 and 18, spoken to by the noble Lord, Lord Watson of Invergowrie. I readily understand the concerns that he raised about the best interests of children affected by immigration decisions. Amendment 16, to which the noble and learned Lord, Lord Hope of Craighead, also referred, would insert the words:

“The promotion of the best interests of children”,

as a public interest consideration applicable in all cases. I appreciate what lies behind the amendment and welcome the opportunity to reconfirm to the House how the best interests of children are and will remain a primary consideration in all cases concerning the ECHR Article 8 right to respect for private and family life. I believe that the Bill is consistent with our obligations towards children under the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, usually referred to as the children duty. These provisions, as interpreted in particular by the Supreme Court in ZH (Tanzania), establish the best interests of a child in the UK as a primary consideration in considering proportionality under Article 8. This means that the Secretary of State must have regard to the best interests of the child as a primary consideration and ask whether any other considerations outweigh it. Clause 18 is compatible with these obligations and has been designed to take proper account of children’s best interests. It does not require the statement added by Amendment 16, which would also expand the extent of the consideration required by Section 55 to include children outside the United Kingdom.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister of Burtersett, for giving us an opportunity to revisit Clause 18.

I do not propose to repeat what I said on the previous group of amendments—which I think has been acknowledged by the noble and learned Lord, Lord Hope—as to why the Government came to the position that they did and thought that it was better in the circumstances to include these rules in the Bill. I say to the noble Baroness, Lady Lister, that I do not believe that this is a trespass into the judicial function. As I indicated earlier, I think that one of the things that have to be taken into account, given that Article 8 rights are not absolute rights, is the public interest. It is appropriate and proper that Parliament determines what the public interest is. That is what we seek to do in Clause 18. Thereafter, it is quite properly the function of the courts to apply the law, having considered all the circumstances.

In moving his amendment, the noble Lord, Lord Pannick, said that this debate had a narrow focus, unlike the earlier debate that we had in Committee. Amendments 17 and 18 propose to qualify, by inserting the word “normally”, the provisions in Clause 18 that little weight—in terms of the public interest—should be given to private life, or to family life with a British or settled partner, which was formed when the person was in the United Kingdom unlawfully, or to private life formed with precarious immigration status.

In a similar vein, Amendment 19 proposes to qualify the provision made by Clause 18 for the public interest in the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more, and who seeks to prevent their deportation by relying on their private life, on their family life with a British or settled partner, or on their parental relationship with a British child or a foreign child who has been resident in the UK for seven years or more.

These amendments are not required to ensure that Clause 18 is compatible with our obligations under the European convention, or to ensure that it properly reflects judicial discretion in determining proportionality under Article 8 in individual cases. It will remain a matter for the courts to consider—not just “normally” but in every case—whether the interference in the individual’s right to respect for private and family life is justified by the relevant public interest considerations. However, the Strasbourg court has made it clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country, and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration.

Clause 18 seeks to reflect Strasbourg case law, which has consistently said that little weight should be placed on private or family life formed during a time when a person’s immigration status is precarious—for example, in the case of Rodrigues da Silva and Hoogkamer v the Netherlands. I fully appreciate the point made by the noble and learned Lord, Lord Hope, that flexibility might be lost when measures are put into primary legislation, although I am not saying that it is a straitjacket. Indeed, one of the considerations that the Government had to weigh up when the decision was taken that it was better to put these matters into primary legislation was that it does not have the same flexibility as rules, given what had been said in the Upper Tribunal regarding matters which were otherwise found in the Immigration Rules. No doubt successors in office will have to keep an eye on Strasbourg jurisprudence. I recognise that it is more difficult to amend primary legislation due to the nature of the parliamentary timetable. Nevertheless, we thought that it was better to do what we did. As I indicated, what we believe we are doing with regard to the reference to “little weight” is to reflect current Strasbourg case law.

Those who enter the United Kingdom for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the United Kingdom unlawfully can have less expectation of being allowed to stay here, and still less those who commit such serious criminal offences that they fall to be deported from the United Kingdom.

As was mentioned in the speeches, the amendments reflect a concern that, if little weight is given to family or private life in these circumstances, a claim under Article 8 can never succeed. That is not the case. The fact that a private or family life has been established should be given little weight, consistent with the case law, but that does not mean no weight is given to that private or family life.

Where there are other factors to be put in the balance—such as the presence of children, disability of the partner, contribution to the community or the fact a young adult has spent over half their life in the UK and has no ties with their country of birth—these factors will all need to be weighed in the balance to decide whether it would be disproportionate to remove the person from the United Kingdom. The need to have regard to these other factors is reflected in the current family and private life Immigration Rules. The case law and Home Office guidance also make it clear that there may be other exceptional factors that need to be taken into account to ensure the decision is compatible with the European Convention on Human Rights.

The addition of the word “normally” is therefore unnecessary, if the aim is to ensure that other relevant factors can be taken into account. It is unhelpful in that it gives no indication of the circumstances when little weight should not be given: in other words, what would be the abnormal case? It is potentially more restrictive, and arguably even incompatible with the European convention, if the implication is that normally these additional factors will not be taken into account. In fact, they should always be taken into account.

I agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, that where little weight should be given to family or private life, that does not mean no weight. In response to the specific points made by the noble Lord, Lord Pannick, I confirm that there may well be compassionate or exceptional cases where Article 8 requires weight to be given to these or other factors or Article 8 requires no deportation. I confirm that the courts must continue to apply Article 8 under the Human Rights Act and that Clause 18 does not override the dicta of the late Lord Bingham, in EB Kosovo, as to the appellate function of the courts in deciding cases under Article 8. Clause 18 enables other circumstances to be taken into account. The insertion of “normally” is neither necessary nor desirable to achieve that outcome.

The noble Lord, Lord Pannick, referred to AP Herbert’s “Misleading Cases”. I well remember the series which starred Roy Dotrice, with Alastair Sim on the Bench. Looking back, it is quite possible that that is where I started in the career I eventually pursued. It was a fantastic series, well worthy of a repeat. This is not a misleading clause. It sets out what the public interest requires but it does not detract from the need for the courts to decide what Article 8 requires in a particular case. I hope that, with these reassurances, the noble Lord will agree to withdraw the amendment.

[Lord Pannick]

I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister, for their support and to the noble and learned Lord the Minister, in particular, for giving the assurances I sought. I am still concerned that there remains a conflict between what I see as the absolutist language of the clause and the flexibility which the noble and learned Lord recognises that Article 8 requires by reference to the circumstances of individual cases. I fear that this clause will cause confusion and it will foster litigation. However I beg leave to withdraw the amendment.

Female Genital Mutilation

Lord Wallace of Tankerness Excerpts

Thursday 20th March 2014 Lords Chamber

[Lord Dobbs]

To ask Her Majesty’s Government what are the impediments to bringing prosecutions in cases of female genital mutilation.

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

My Lords, the Crown Prosecution Service can consider prosecuting only those cases that have been referred to it by the police following an investigation of a number of significant factors affecting the reporting of female genital mutilation. Those include a lack of information from affected communities and the age and vulnerability of the girls and women, which prevents them from coming forward to report offences or to give evidence in court. However, your Lordships’ House should be in no doubt that the Crown Prosecution Service is working hard to bring a successful prosecution.

[Lord Dobbs (Con)]

I thank my noble and learned friend for the encouraging reply and initiatives the Government have been taking. However, he will understand when I say that these are not yet enough. Female genital mutilation is a crime. It is estimated that 66,000 women and children in England and Wales are victims, yet there has not been a single prosecution. Can my noble friend assure the House that, while we are rightly sensitive to the interests of minority cultures, the Government will never neglect our fundamental British culture, which deems that this practice is little less than butchery and must be stopped? While the Minister rightly emphasises the role that education has to play in stamping out this practice, will he accept that by far the best way of driving this lesson home and saving as many innocent women and young girls as possible is to ensure that those responsible are identified, prosecuted and locked away, where they can do no further harm?

[Lord Wallace of Tankerness]

My Lords, there is widespread frustration that there has been no prosecution, albeit that there has been legislation on the statute books since 1985. At present, the Crown Prosecution Service is considering or advising the police on 11 cases, four being re-reviews of cases that had previously been considered and where a decision was made that no further action should be taken. My noble friend is absolutely right: this is a crime. It is a very serious form of violence against girls and women and is a form of child abuse. I assure my noble friend that the criminal law applies to everyone, without exception.

[Baroness Butler-Sloss (CB)]

My Lords, ought not the Government look beyond the CPS at teachers in schools, and particularly the college of GPs, and ask GPs to check girls in certain minority communities to see whether or not they have been victims of this practice? This really needs to be done. It is not up to the CPS to do this; it cannot proceed unless it has the relevant evidence. We need to go to the core groups that deal with these children, particularly the college of GPs.

[Lord Wallace of Tankerness]

My Lords, the noble and learned Baroness is absolutely right: the Crown Prosecution Service can take only cases referred to it by the police. In turn, the police require co-operation and engagement on the part of those involved in schools, education, the health service, including GPs, and, indeed, the communities themselves. That is why there is a range of activities across government, agencies and the third sector to try to raise awareness and improve lines of communication so that cases can be reported with more confidence.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister’s answers are very clear, and I agree entirely with the noble Lord, Lord Dobbs, and the noble and learned Baroness, Lady Butler-Sloss. It is clear that legislation alone has not been an adequate deterrent. However, the French system works particularly well, whereby young girls who present to hospital are examined to see whether they are victims of FGM. We would not necessarily want to go down that route but, given that it has been successful, will the noble and learned Lord take on board the comments made by the noble and learned Baroness, Lady Butler-Sloss, but also look at other ways of addressing this issue, including involving hospitals and other agencies which could bring evidence to the attention of the CPS to ensure that we get a prosecution, as that will be the only genuine deterrent that will really make a difference?

[Lord Wallace of Tankerness]

My Lords, the noble Baroness mentions France. My understanding is that there is no specific crime of female genital mutilation in France. Nevertheless, I think that other issues are involved there which are somewhat different. However, I reassure the noble Baroness that the Crown Prosecution Service is looking at experience in different jurisdictions to try to get information on best practice. With regard to hospitals, which she mentioned, as from next month there is intended to be a reporting requirement from hospitals of cases which they discover, and a database will be built up. It is important to remind those involved that there is a legal obligation on NHS staff to safeguard children and young people and that, if they identify someone they consider to be at risk, or who has already undergone FGM, they must respond appropriately by involving the social services, which, in turn, can involve the police.

[Lord Lester of Herne Hill (LD)]

My Lords, this morning the BBC revealed that, since 2009, some 4,000 patients have been treated in London hospitals for the after-effects of FGM. Clearly, this is a very widespread and serious health problem. Will my noble and learned friend look at our own jurisdiction with regard to civil protection for forced marriages and consider whether, instead of relying only on the criminal process, with the difficulty of the burden of proof and all the rest of it, it might not be sensible instead to amend the law to ensure that civil protection orders can be imposed in the family courts, as in the case of forced marriage?

[Lord Wallace of Tankerness]

My noble friend makes an important point. Last month, there was a round-table discussion involving Ministers, the Crown Prosecution Service, the Director of Public Prosecutions and a whole range of government departments which have an interest in this issue. The fact that this matter goes across a number of departments has been reflected in the questions asked today. One of the action points to be taken forward by the Ministry of Justice is to seek views on how a civil prevention order might work alongside criminal legislation to protect potential victims because protection—preventing it happening in the first place—is vital, as well as prosecuting those who have perpetrated this offence.

[Baroness O'Cathain (Con)]

My Lords, I ask the Minister whether these girls have any access to confidential information. For example, we have ChildLine, Rape Crisis, services for battered wives, and all those areas where people can, if they are in positions like this, phone up and get some help and assistance. I have never heard of one for this bestial practice. Is there any charity that we could approach and ask?

[Lord Wallace of Tankerness]

My Lords, I can reassure my noble friend that the NSPCC has in fact initiated a helpline, in co-ordination with the Home Office. Perhaps one of the issues is the need for greater dissemination of that. Another recent initiative has been the issuing of a statement opposing FGM, of which 41,000 copies have been sent out in over 11 languages to raise awareness and to bring this issue to the attention of those who have been victims. One of the issues that has been looked at by the police and the Crown Prosecution Service is that, for those victims who do come forward, the appropriate witness protection is in place to give them reassurance and to help them. People obviously have been very brutally treated.