Succession to the Crown Bill
Lord Wallace of Tankerness Excerpts(11 years, 4 months ago)
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Lord Elton
My Lords, I observe that this matter is outwith the terms of the Long Title. However, the Title has been postponed and it is possible to amend it, if necessary.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
I thank my noble friend Lord True for the amendment and for the sensitive and thoughtful way in which he moved it and presented his concerns. Indeed, I seek to reassure him that the amendment is unnecessary.
Subsections (1) and (2) of the proposed new clause state the current position in respect of heirs of the body and adoption or artificial reproduction. I recognise that my noble friend indicated that he was not making any claims as to the drafting of the amendment but he said something that I have previously said—it is important that the succession is removed from controversy and there should be certainty. Subsection (3) could be an opportunity for some controversy if a case had to come before both Houses of Parliament. However, the spirit in which my noble friend moved the amendment was to try to seek some clarity on this matter.
The laws governing succession to the Crown that require that the descendant be the natural-born child of a husband and wife have been enshrined in our constitution for generations. Children who have been adopted may not succeed to the Throne, whether their new parents are of opposite sexes or the same sex. As my noble friend said, it is immaterial; indeed, even without the Bill, the issues he raised are pertinent. I repeat that children who have been adopted may not succeed to the Throne, irrespective of whether the parents are of opposite sexes or the same sex.
It was never our intention to codify all aspects of succession to the Throne in the Bill. Rather, as the noble Baroness, Lady Hayter, indicated, the agreement reached among the realms was quite specifically limited to removing the male bias and ending a specific discrimination against Roman Catholics, and it is not appropriate that we go beyond what was expressly agreed.
Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown. It is also worth noting, as my noble friend observed, that the Human Fertilisation and Embryology Act 2008 states that nothing in the Act,
“affects succession to any dignity or title”,
or,
“renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.
The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles or dignities, descend. We also consider it to be unnecessary to define marriage for the purposes of this proposed new clause as set out in subsection (1). Only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear. I have tried to keep my response brief and concise, and I hope that it provides the reassurance that my noble friend seeks and has properly raised. I invite my noble friend to withdraw the amendment.
Lord Elton
My Lords, I hope that my noble and learned friend on the Front Bench will take time to consider this matter between now and Report, and that my noble friend will also occupy that time. The answer that my noble and learned friend has given does not entirely cover everything because becoming Queen or King is rather more than receiving a dignity or title. The term used in the Bill is “possessing” the Crown, which is different from inheriting a title, and that is surely what we are concerned about.
Lord Wallace of Tankerness
We will certainly reflect on this matter and I can assure my noble friend that considerable consideration has been given to it. However, I take the points that he and my noble friend Lord True made and will give further consideration to them. Nevertheless, I hope that I clearly indicated our view with regard to an “heir of the body”.
Lord Elton
I accept that that is the current position. I hope that we shall be reassured if it remains the same on Report.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Cormack for introducing this amendment. It has generated a passionate debate and raised important issues, not least ones also reflected in our Second Reading debate about the upbringing of children should there be a mixed marriage. The noble Lord, Lord Luce, quite properly indicated that this Bill is limited in its scope and does not deal with the established church or the monarch as Supreme Governor. I know the passion with which my noble friend Lord Forsyth takes a view—which I share—on the wording of some 17th century legislation. That wording is offensive, but as the noble Lord recognised from his early attempts with a Private Member’s Bill, these matters are hugely complex and I do not believe that this Bill is the appropriate place to deal with them.
As the noble Lord, Lord Luce, indicated, at Second Reading he and the noble Lord, Lord Janvrin, asked if I would meet representatives of the Catholic Church. I did so earlier this week. I can inform the House that I came away with a clear message that in the instance of mixed marriages the approach of the Roman Catholic Church is a pastoral one. It was considerably stressed to me that the Catholic Church will always look to provide guidance that supports and strengthens the unity of the partnership and the indissolubility of marriage. It is in this context that the Catholic Church expects Catholic spouses sincerely to undertake to do all they can to raise their children within the Catholic Church.
However, where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, it has been drawn to my attention that the Catholic parent does not fall subject to the censure of canon law. The clear signal was that the overriding concern in Catholic pastoral guidance to couples in mixed marriages—it was drawn to my attention that there are many mixed marriages today in England and Wales—is the unity and indissolubility of the marriage. I assure the House that it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith.
It is also important to note the important concept within the Catholic Church of subsidiarity. As a Presbyterian I do not pretend to understand it, but it is one that I have certainly heard associated with the Catholic Church. We perhaps debate the word in another context, but within the organisation of the Catholic Church, subsidiarity is an important concept and much decision-making is devolved to a local level, including decisions relating to mixed marriages. Quite simply, the Vatican does not get involved. My noble friend Lord Deben highlighted both the constitutional implications and significance if the amendment moved by my noble friend Lord Cormack were to be carried. It would raise constitutional issues and would put the Pope in a very difficult position, one that I suspect the Vatican does not aspire to have thrust upon it. In its recent letter to Members of your Lordships’ House on this issue, the Church of England stated:
“The present prohibition…is not necessary to support the requirement that the Sovereign join in communion with the Church of England”—
that is, the prohibition on marrying a Catholic—and therefore:
“Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty”.
The Archbishop of Westminster, as quoted by the noble Lord, Lord Luce, welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic, and recognised the importance of the position of the established church in protecting and fostering the role of faith in our society today.
Lord Forsyth of Drumlean
What was the Government’s motivation in removing the prohibition on the heir to the Throne marrying a Catholic? Was it to enable the heir to the Throne to marry a Catholic, or was it to remove the discrimination against Catholics?
Lord Wallace of Tankerness
My Lords, it was both. It was to allow someone in the line of succession to the Throne to marry a Catholic and to remove that discrimination. I know that the noble Lord’s subsequent question would be, “Why don’t you remove the ultimate discrimination?”. However, as he acknowledged, from his own efforts to do something, this is a much more complex issue. He says that he does not wish to disestablish the Church of England. Many would argue that if we went down that road, it possibly would lead to the disestablishment of the Church of England. There is a proper debate to be had there, but this emphasises that that is not the purpose of this Bill. However, where an opportunity has arisen to remove at least one area of discrimination, it has properly been seized.
My noble friend Lord Deben made the point that, if this genuinely is an issue, it already exists in another context. My noble friend Lady Falkner of Margravine raised the point at Second Reading which my noble friend Lord Deben made about Islam. My noble friend Lady Falkner asked whether the perceived,
“constraints on the children of Catholics being bought up—and the Catholic Church’s perspective on that—would be different if the monarch was married to a Muslim, as is currently permissible? Muslim children are, likewise, expected to be brought up in mixed marriages as Muslims. So the anomaly exists in the case of other faiths, but perhaps not in the case of Catholics”.—[Official Report, 14/2/13; col. 805.]
That was the point that my noble friend was making. Therefore, the amendment of my noble friend Lord Cormack seeks to address one problem but does not extend to include every faith that currently exists. It is certainly not the Government’s plan that we should do so.
We will obviously return to this issue of establishment and whether the sovereign could be a Catholic in some of the later amendments. However, I readily appreciate the very human concerns. When you are dealing with affairs of state and issues of the constitution, you must remember that you are also talking about two people who want to get married. That is why it is appropriate that there is a pastoral dimension to this and that it is done at a pastoral level. I hope that, with these reassurances, my noble friend will withdraw his amendment.
Lord Cormack
My Lords, I am grateful to my noble and learned friend the Minister for his response, but not entirely convinced. We have had an interesting short debate. Some of the language used by my noble friend Lord Deben was reminiscent of the 18th century pamphlet at its best. He could be a little more careful about his use of the words “insulting” and “preposterous” merely because he does not happen to agree with the arguments advanced.
The fact is that many people in this country are concerned. Parliament has a duty to address this issue. Mentioning a foreign power in legislation is by no means unprecedented. However, I take the point of my noble friend Lord Fellowes; indeed, I made it obliquely myself in my introductory remarks when I said that I was not wedded to the words of the amendment. I wanted to have a debate on the subject. This we have had. I would be glad to talk to my noble friend Lord Fellowes and others before deciding whether to pursue this, which I may well do on Report. The issue deserves mature and thoughtful debate. It is of importance for we do not know how long. There may be no problem in the next century; there may be one within a very few years. One just does not know. However, when we are legislating in good faith for a long time—in spite of the fact that no Parliament can bind its successors; we can repeal whatever we like tomorrow—we have to do our best to make it as clear, precise and right as we possibly can. This is why my noble friend Lord True was wise to introduce his debate. We need to try to anticipate the sort of problems that may exist, if only to answer them and have them answered by Ministers and others before we move on to see the Bill on the statute book, which it assuredly will be before too much longer.
While expressing the hope of discussions with my noble and learned friend the Minister and others before Report stage, and reserving the right to introduce an amendment on Report—certainly not in the same words, but along similar lines—I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
These amendments go to the heart of whether the present Anglican establishment in England can or even should remain in its present form. They raise issues which it would be irresponsible to dismiss out of hand. Therefore, I suggest that all parties come together sooner rather than later to ensure that the subject remains a topic for further parliamentary consideration. That might be by way of using the existing committee structure—perhaps the Constitution Committees in both Houses might wish to take this on—or even through the facility in your Lordships’ House for setting up a committee for this very purpose. It seems to us that the spirit of change, referred to by the noble Lord, Lord Deben, and the points just made by the noble Lord, Lord Forsyth, are too important to be left on the table. They need to be addressed, otherwise they will rancour, come back and hit us in places that we do not necessarily understand at this time.
I sense in the debates that we have had so far a willingness to engage at a level which is not possible within this Bill because of its particular purposes and focus but which would help to create a better understanding at least and possibly an opportunity for a road map for change. It would be important to take that up.
Lord Wallace of Tankerness
My Lords, as my noble friend Lord Trefgarne indicated in moving this amendment, this is one of the key issues raised by this Bill. Certainly, his Amendments 10 and 11 and the consequential ones to the schedules are interesting and were flagged up at Second Reading. They are an interesting way of addressing what has been seen as a dilemma: if the sovereign was to be a Roman Catholic, how could that person also be the Supreme Governor of the Church of England?
When I tried to answer my noble friend Lord Forsyth’s question as to whether the proposal was to allow the heir to the Throne to marry a Roman Catholic or to remove discrimination, I think I said that it was both, and it is. Clause 2 is of symbolic importance because it removes a discrimination which I believe does not have a place in our society today. As I think I also indicated, and as has been accepted across the Chamber, these issues with regard to the sovereign being a Roman Catholic go much wider than the person who may ascend to the Throne being married to a Roman Catholic. The Government are committed to the Church of England as the established church in England with the sovereign as its Supreme Governor. I note what the noble Lord, Lord Stevenson, says about a possible further examination. Certainly, the Government have no plans to do so. Indeed, the Government suggesting to Select Committees what they may or may not do probably is not good form. But he has made his proposal and there will be others who will have heard it. It may be that a Select Committee will choose to do that but I do not think that it would be appropriate for the Government to take that initiative.
I now turn to the idea of separation of the roles of sovereign and Supreme Governor.
Lord Maclennan of Rogart
Before my noble and learned friend leaves that point, will he indicate whether the Government are ready to enable such work to be done given the compression of time that we have had in discussing these matters? Would they be prepared to permit the Bill to proceed at a pace which would allow a Select Committee, such as the Constitution Committee, to consider these matters?
Lord Wallace of Tankerness
My Lords, I am afraid that I will have to disappoint my noble friend in my answer. I do not believe that this is the appropriate Bill for taking this forward. This Bill seeks to deliver on three particular issues and I do not believe that that would be appropriate. I do not diminish the importance of the issues. It is very obvious that some people see this Bill as a Trojan horse for disestablishment and some are frightened in the opposite direction. I do not believe that this Bill is appropriate for that. Therefore, I cannot give my noble friend the encouragement or the assurance that he seeks with regard to allowing such a discussion. I do not believe that the noble Lord, Lord Stevenson, was suggesting that it should be done in a timescale that would affect this Bill.
On the idea of separating the roles of sovereign and Supreme Governor of the Church of England, obviously it is self evident that that would represent a very major change to the role of the monarch in relation to the established church and undoubtedly would require extensive consultation. It is a significant diversion from the traditional role of the monarchy over recent centuries. The Government consider that the change in the law effected by Clause 2 is a valuable one but we do not believe that it is necessary for the Bill to go beyond that and to delve into the significant wider issues that this amendment raises.
The proposed amendments also open up a series of extremely difficult questions about the relationship between the sovereign and the Supreme Governor of the Church of England, and indeed whether such an arrangement could support the continued established place of the Church of England. For example, how would the coronation and accession oaths be taken? The oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian Church Government. Who would take this oath? Presumably it would not be appropriate for a regent who is a Supreme Governor of the Church of England to give any oath in respect of the Church of Scotland, and therefore would not be sovereign to make that statement. That one issue shows the host of different issues that would come up when the issue is examined in more detail.
As I have indicated, the Government have no intention of introducing any change in this matter. Given that both the Catholic Church and the Church of England have been very supportive of the changes that are actually in the Bill, I believe that we have found an appropriate balance through the legislation as drafted. I therefore invite my noble friend to withdraw his amendment.
The Earl of Erroll
Before the Minister sits down, perhaps I could help him on the Presbyterian Church of Scotland. Every year, at the opening of the General Assembly of the Church of Scotland, the monarch promises to defend the Presbyterian Church Government in Scotland—I will not get the words exactly right. I think that she does that in a personal capacity, not as head of the Anglican Church. She promises to defend it, so there is no reason why a Catholic monarch could not still promise to defend the Presbyterian Church Government in Scotland. To confuse that with Presbyterianism in England would be different.
Lord Wallace of Tankerness
I apologise if I did not make myself clear. I did not mean to suggest that it was as Supreme Governor of the Church of England that she made the oath with regard to the Presbyterian Church Government in Scotland. I was in fact suggesting the opposite; it would not be appropriate for someone who was appointed as a regent—a Supreme Governor—to make that oath. I think that that would be wholly inappropriate. It raises the question of whether a monarch who was indeed a member of the Roman Catholic Church would be in a position to make any commitment regarding the maintenance of the Protestant religion and the system of Presbyterian Church Government.
Lord Wallace of Tankerness
My noble friend Lord Forsyth asks why. I think that it raises some very interesting issues that have not been thought through. This is why I say that we should not go down this road. I do not propose to go down this road; I suggest that there is a host of issues, and that is why we should not go down the road proposed by the amendment.
Lord Trefgarne
My Lords, the problem is that the noble and learned Lord says this opens up greatly different avenues. However, frankly, the Government ought to have thought about these avenues before they brought in the Bill.
Lord Wallace of Tankerness
With all respect to my noble friend, that is the reason why the Government have not gone down this road. The Government have actually sought to do three very clear things: remove the male bias in succession; remove the current prohibition on someone in the line of succession marrying a Catholic; and repeal the prohibitions in the Royal Marriages Act 1772 and replace them with others. Those are three very precise points. I made the point that to go wider than that raises the kind of issues I highlighted. That is one reason why the Government have not gone down this road.
Lord Northbrook
My Lords, by ignoring the amendments of the noble Lords, Lord Cormack and Lord Trefgarne, it seems that the Government are just leaving everything to chance, in the case of there being a Catholic heir.
Lord Wallace of Tankerness
This is not leaving it to chance. The law as it stands at the moment is quite clear that a Catholic cannot ascend the throne.
Lord True
My Lords, the problem was articulated at Second Reading, and I do not wish to extend this debate too much. The problem ultimately will be a human problem, as it was in 1936. That human problem, if it arises, will concern a child who is an heir, either the heir presumptive or a child who by some accident becomes the next in line, a popular expectant heir to the throne, who, whether from birth or by proximity to the Catholic faith when being brought up, believes that they cannot take up the duties of a monarch without the support of the church that they love. That might well be the Catholic Church.
The problem with the halfway house that we have before us is that it opens the door to such a crisis without resolving all the complexities that my noble friend quite rightly said lie at the end of that path. That human drama will be played out in the 21st century through all eyes of the media and television as almost a piece of spectacle—it was in 1936. That is the danger that many Peers sought to point out at Second Reading. I could not support the amendment of my noble friend Lord Cormack; equally, I think that the amendment of my noble friend Lord Trefgarne is flawed, because I agree with my noble and learned friend on the Front Bench that there are things that a regent could not undertake.
There is a danger in the lack of clarity inherent in this Bill, for well meaning reasons, opening a door to a place we know not where. Not all discrimination in this matter lies on the Anglican side—I speak as one who lives the most happy of mixed marriages but who is never permitted to go to the altar table to share communion with my wife. Let us go forward with caution. It is not right for the Government so readily to detach the opening of the door by the legitimisation of a marriage from a proper and serious contemplation of the potential consequences if a human drama comes to be played out when an heir believes that they can proceed only with the support of the Catholic faith, whether they professed it previously or profess it at the time when they become heir to the Throne.
Lord Wallace of Tankerness
My Lords, before my noble friend Lord Trefgarne replies, perhaps I may pick up on a point where I do not believe that the argument of my noble friend Lord True holds. Under the law as it stands—and there is no proposal here, nor do the Government have any proposals to change the law—the sovereign may not be, nor have been, a Roman Catholic. Therefore, the situation which my noble friend Lord True suggested, where the sovereign comes to the Throne having to agonise as to whether to renounce the Catholic religion, just would not arise, because, having been a Catholic, he or she would not be eligible to ascend to the Throne.
I entirely concur with my noble friend’s opening remarks: these are very much human matters at the end of the day. There is a human dimension to it, and that is why, in response to the earlier debate, I sought to reflect the discussions which I had with representatives of the Bishops’ Conference of England and Wales so that this is looked at at a pastoral, human level, which seeks to reflect the importance of the union of a partnership and the indissolubility of marriage. It is against that background that decisions should be made and advice given with regard to the upbringing of a family. I accept that there is a human dimension to this, but I should perhaps clarify that the dilemma that my noble friend was suggesting cannot occur because the position is that the sovereign must not be, or have been, a member of the Roman Catholic Church.
Lord Forsyth of Drumlean
My Lords, I had not appreciated this until my noble and learned friend said it: he said that not only would a Catholic not be able to ascend to the Throne but that someone who had been a Catholic but had then converted to be an Anglican could not ascend to the Throne. That has nothing whatever to do with the position of being Supreme Governor of the Church of England. That is a simple discrimination against Catholics. My noble and learned friend said, “Oh, the reason that we have made this Bill focus on just these three areas is because the issues are so complex”. It is clear that he will not accept the amendment, and I accept some of his arguments for that—but, in listening to this debate, can he not see that there are a number of issues? The noble Lord, Lord Stevenson, suggested that we should have a Select Committee, or some kind of body to look at these issues, and park the Bill while that is going on. What is the rush here? What is the reason for our needing to rush forward with this legislation at this pace?
Perhaps at the end of the day, it might be concluded that it was impossible to reconcile maintaining an established Church with removing this discrimination against Catholics. However, if the Government say, “Oh well, this is just a Bill that’s dealing with these matters”, bear in mind that this legislation has to be approved by all the other Parliaments around the world. Would they not think it very odd if we came forward with this Bill now and then a short while later came forward with the other bit of it? Or is the proposition that this is just too difficult? If it is too difficult, why on earth did the Government embark on this journey in the first place?
Lord Cormack
I would like to add a word. There is a real danger that we are treating exceptionally complex matters far too simplistically. The constitution of our country, which is not written, has often been compared to a beautifully constructed watch—take away one ostensibly tiny piece of the mechanism and the whole thing falls apart. Some fairly unpleasant things were said about my amendment earlier on, but there we are; that is the rough and tumble of debate. However, I really believe that those of us who are concerned about this issue—coming from slightly different points of view, I accept—are on to something that the Government have not bothered to think through. They have said, “Oh look, this is so complex that we’ll just concentrate on these things”, which is equivalent to saying, “This watch is beautifully constructed; we’ll just look at the hands in the face and forget the bit behind”. There is merit in the interesting suggestion from the noble Lord, Lord Stevenson—if I may have his attention for a moment—or at least in the Minister calling a meeting in his room for people who are concerned, and possibly in going forward to a special committee. This is not really the ideal forum for a detailed discussion of these exceptionally important and complex matters, which reach out we know not where.
Lord Wallace of Tankerness
My Lords, I have already responded to the point from the noble Lord, Lord Stevenson, and indicated that I am not in a position on behalf of the Government to commit to establishing a committee to look at these matters. It is clear that there are committees of this House and indeed of the other place that could do so. Obviously the Government would contribute to any such committee that we had invited to do this, but I do not believe that that is a pathway that is inconsistent—nor did the noble Lord suggest this—with proceeding with the relatively straightforward, although constitutionally important, issues that are in the Bill.
Lord Trefgarne
My Lords, at the end of Second Reading a week or so ago, when the noble and learned Lord, Lord Wallace, moved to refer this Bill to a Committee of the Whole House, I suggested then to your Lordships that it would have been much better considered by a Select Committee of the House to which witnesses could have been called and had their evidence taken—perhaps even a Joint Select Committee involving Members of the other place. However, the Minister refused to agree to that; oh no, we would go to a Committee of the Whole House, as we are now doing.
If ever there was a case of unlooked-for consequences, this Bill is certainly it. There are a number of aspects of this matter that quite clearly the Government have simply not considered or, if they have, they have chosen to disregard. That is really not good enough, and we are going to have to return to this issue at the next stage for sure. In the mean time, I beg leave to withdraw the amendment.
Lord Trefgarne
I do not intend to speak to this amendment at any length. We have covered some of its detail, although by no means all of it, in recent discussions, but I would like to hear what the Minister’s response to it would be. Without wishing to detain your Lordships, therefore, I beg to move.
Lord Wallace of Tankerness
My Lords, the position with regard to this amendment is very similar. It is a different structure for having, as it were, a divergence between the person who is the sovereign and the person who is the Supreme Governor of the Church of England. Some of the difficulties and arguments which were expressed with regard to the regency are also applicable to the slightly different structure proposed in Amendment 11. I am not sure that I can elaborate on that much further as I think that the arguments are very similar.
Lord Trefgarne
I understand what my noble and learned friend is saying. However, the amendment that I now propose does not confine itself to the Roman Catholic faith, or the possibility of the sovereign or the heir to the Throne being Roman Catholic, but deals with all other possible faiths. At the moment, many legal restrictions apply to the Roman Catholic faith in this regard but none applies to Muslims, the Jewish faith or any faith other than the Anglican and Roman Catholic faiths. Therefore, that matter certainly bears additional consideration, but perhaps not today. In the meanwhile, I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Lang for this amendment, and not least for the way in which he moved it. Although it was entertaining in many respects, I fully recognise his points. I am not being disparaging—I enjoyed his speech. It was a very good speech and his points were interesting. It is important to point out that none of the people who were in and out actually ascended the Throne. I take his point, which is a pertinent one. Reference has been made on more than one occasion—in another place, too—to the issue of Princess Victoria, as she was known when she was born, being fifth in line to the Throne. There has not been a monarch since the 1772 Act who has been any further out at birth.
Perhaps my mind was working along similar lines to that of my noble friend because I also asked whether it is worth considering when the provision actually bites—which, of course, is at the point of marriage. Since the 1772 Act came on to the statute book, the person who was furthest away from the Throne at the time of consent to a marriage being sought and given was, indeed, around the same time as my noble friend was talking about: King William IV was third in line to the Throne when he married and when he sought and was given consent for his marriage under the 1772 Act. So, in the 240 years since the Act was passed, William IV has been the furthest away from the Throne at the time of his marriage. Again, I am not pretending that there is perfection in this, and I do not believe that a Select Committee could attain perfection in this either. The proposal for six therefore still allows a considerable amount of leeway—which is probably not the right word, but it is the most appropriate word that comes to mind at the moment.
It is important to remind ourselves that a balance needs to be found between mitigating against catastrophic but remote hypothetical events of a line being wiped out and the risk of impinging unnecessarily upon the lives of those who are distant from the Throne. Clearly, my noble friend Lord Lang would prefer to give greater weight to the former; my noble friend Lord Northbrook gives greater weight to the other end of the spectrum. I will not found my argument on that. As three is the farthest away from the Throne at the time of marriage, I believe that six is reasonable. This is bearing in mind that, on the other side of the coin, it can impinge unnecessarily upon the lives of those who are that much more distant from the Throne.
Lord Forsyth of Drumlean
My Lords, what representations have the Government had from anyone about their lives being impinged unnecessarily in this matter?
Lord Wallace of Tankerness
We have not had the representations that one would expect to receive. I suspect that under the present law there are people who, understandably, do not know that, as a descendant of King George II, they are expected to get consent from the sovereign if they wish to marry. Indeed, we seek in this Bill to address the issue of those who have, as it were, unwittingly married.
The other important point perhaps addresses the point made by my noble friend about the European Convention on Human Rights. There are two issues here. First, the European Court of Human Rights has generally been very reluctant to engage in issues which go to the heart of a nation’s constitution and who should be their head of state. Secondly, unlike the 1772 Act, which made a marriage void if the consent of the Sovereign was not forthcoming, this does nothing so significant. It simply removes the person from the line of succession and the marriage will still be valid. It means only that the person who had not received consent would not take their place in the line of succession.
My noble friend Lord Lang asked where the number six arose from. Ahead of the Perth agreement my right honourable friend the Prime Minister wrote to each realm Government proposing changes to the law of succession principally with regard to the removal of male bias and the bar on the heir marrying a Catholic. At that point the realm Governments were also made aware of the issues surrounding the Royal Marriages Act and the view of this Government that it was outdated. Subsequent discussions with the realm Governments were led by New Zealand which concluded that it was in the public interest and reasonable and proportionate for those who are genuinely close to the Throne to seek consent to marry. To avoid the same problems presented by the Royal Marriages Act in attaching a monarchical consent requirement to the descendants of a specific monarch—at Second Reading I think that someone suggested that we could make it the descendants of George VI rather than George II; that was thought to store up problems for the future—the number six was proposed and agreed. My right honourable friend the Prime Minister then wrote to each of the realm Prime Ministers to confirm their consent to this provision.
I apologise that I was unable to respond to my noble friend Lord Trefgarne at Second Reading when he asked whether consent had ever actually been refused under the 1772 Act. So far as the Government are aware, there has been no instance when the sovereign’s consent to a royal marriage has been refused. My noble friend Lord Northbrook asked in relation to Amendment 14 whether the common law still applies to monarchical consent in cases such as the remarriage of a dowager queen. There is a good argument that the 1772 Act replaced all common law provisions on royal consent to marriages, but it also could be argued that because the 1772 Act applies to the descendants of George II, the common law requirement might conceivably still apply to members of the Royal Family who are not descendants of George II, for example in the remarriage of a dowager queen or a prince consort. But these instances would not affect the line of succession and it is important to recognise that what we are doing here relates only to that. The Bill is concerned with people who may become the sovereign, not with members of the wider Royal Family. It has a specific purpose.
As I say, no number will be perfect, but if one considers that, in the 240 years since the 1772 Act went on to the statute book, the furthest away in line from the Throne at the time when consent for marriage was sought was three; we are allowing for three more. I believe that the figure is a rational one and I would invite my noble friend to withdraw his amendment.
Lord Lang of Monkton
My Lords, I know that my noble and learned friend has a job to do, and that is to get this Bill through intact. I have no doubt that those are the orders he has been given and that the word “Resist” is printed on every page of his brief. The fact remains, however, that he must have heard the almost unanimous voices in this Chamber expressing their support for an expansion of the number from six. My noble friend Lord Northbrook offered an alternative of either four or zero. I would live with zero, but only if the provisions that still require the sovereign to be a member of the Church of England were withdrawn. That would remove the tension that this Bill otherwise builds into the royal succession; that is, between those who are allowed to marry Catholics and those who cannot inherit the Throne unless they are members of the Church of England.
My noble friends Lord Lexden, Lord Lyell, Lord Forsyth and Lord True gave some fine additional historical examples of the sort of problem that can arise in these circumstances. My noble friend Lord Lexden mentioned in particular the history of the gun pellets through the window at Sidmouth and that house in the rainstorm during which Prince Edward contracted an illness from which he died a week later, thus precipitating Princess Victoria up the line. There was another incident, I believe, when a pony and trap bearing the princess panicked and sped off, and she very nearly died. In answer to the question put by my noble friend Lord Lexden, if she had died, my belief is that Prince Ernest Augustus, the Duke of Cumberland and Teviotdale, would have inherited the Throne. He subsequently went on to become the King of Hanover where male primogeniture still predominated, when King George IV, I suppose it would have been, could not have inherited that Throne when it became vacant.
My noble and learned friend said some very kind things about what I have proposed and the arguments I advanced, but then proceeded to reject them without going further than talking about “arbitrary” and “pragmatic”. If I heard him correctly, he said that none of the historical characters I mentioned had reached the Throne. Queen Victoria reached the Throne, and he has not risen to that point.
Lord Lang of Monkton
Perhaps I may finish my argument before he denounces or deals with it. Queen Victoria would then have had to give consent to herself before she could have married Prince Albert. My noble and learned friend will argue, “Ah, but she would have been guided by Ministers”. Lord Melbourne was a pussycat who doted on Queen Victoria and he would not have said no. He had enough problems already with Lady Caroline Lamb. I shall give way to my noble and learned friend.
Lord Wallace of Tankerness
I apologise if my noble friend misunderstood me; I said that no one whom he mentioned, who had gone into the list of six, come out of the list and then gone back into it, had actually gone on to inherit the Throne. That was my point. Of course, Queen Victoria as Princess Victoria inherited the Throne, but I think that the idea of the sovereign giving consent to him or herself is one that has possibly arisen on other cases too. I cannot immediately think of what they were, but that is not even an anomaly; one cannot give consent to oneself.
Lord Lang of Monkton
If I burned the night oil I might be able to find an example. What my noble friend says simply underlines the fact that he did not answer the point about Queen Victoria having to give consent to her own marriage. That must be a fault in the Bill, and I ask him to consider it further before we reach Report.
My noble and learned friend concluded by saying that no number is perfect. I agree, but six is demonstrably imperfect. So much of this Bill has been shown to be ill considered and imperfect, creating anomalies and potential for long-term difficulties of a very considerable nature. When we legislate in a Bill of this kind, we are legislating not just for decades, but for centuries, and so many points have been made today that require further thought. I will withdraw the amendment, but I will consider whether I should bring it forward again on Report. I hope that my noble and learned friend will give very serious thought to what most people in this House—and, I believe, in the other place as well—consider to be an ongoing problem. I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Elton for his amendment, which gives me a welcome opportunity to explain why the amendment that he is seeking to delete was inserted in Committee in the House of Commons.
The effect of the Bill as originally presented, as indeed would be the effect of my noble friend’s amendment, would be to disqualify all descendants from any marriage of a person when a marriage of that person was not consented to. For example—and in fact the other way round from what my noble friend suggested—if a person in the line of succession married with consent and had children, their spouse died and they remarried without consent and had children, the children of the first marriage, which had been consented to, could be disqualified.
The intention of subsection (4) is to disqualify from the line of succession any royal descendants from a marriage not approved by the sovereign. It would go too far also to disqualify descendants from a previous marriage for which consent had been obtained. For these reasons, the amendment to include the words “from the marriage” was tabled and accepted in another place. That is entirely consistent with the agreement that was reached with the other realms and removes a possible ambiguity. The other realms were fully informed of this drafting change before it was proposed.
We will come later to an amendment in the name of my noble friend Lord Trefgarne that relates to the bringing into effect of the Bill. There is no date set. I do not want to pre-empt that amendment and that discussion, but if my noble friend Lord Elton looks at Clause 5, “Commencement and short title”, he will see that provision is made for it to come into force,
“on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint”.
The purpose of that is so these measures can all come in together on the same date and, I think, at the same time, in the 16 different realms.
Some realms are dealing with this in different ways. Some, such as New Zealand and Canada, will legislate to ensure that the changes take effect in their country. I believe that the Bill was brought into the New Zealand Parliament last week. Other realms, such as Papua New Guinea and Jamaica, have found that they do not need to legislate. The intention is that when all realms have done what is necessary regarding their arrangements, the measures will be brought into effect at the same time. There is no date set.
It has been said that the Bill was rushed through the other place. As I have said on more than one occasion, the Bill did not even take up the time allocated to it in the other place, so I am not sure what could have been done if more time was allocated. It is a simple fact that the time was not taken up.
Lord Forsyth of Drumlean
To argue that it did not take up the time and to try and present this as treating an important constitutional measure properly is quite unfair. The point is that all stages of this Bill were carried out over two days in the other place. The conventions have been that constitutional Bills are dealt with over a proper passage of time so that people can make points, the Government can think about them and perhaps even come back with a suggestion for change. By tradition, constitutional Bills have always been taken on the Floor of the House of Commons. To try to argue that this Bill was not rushed through the other place in an untimely manner, with many Members’ speeches protesting about the way it was handled, is a little misleading.
Lord Northbrook
Perhaps I may add to my noble friend Lord Forsyth’s comments. At least 17 amendments were put down in Committee in the other place. Only two were actually discussed. I am sorry, but to say that all the amendments put down in Committee were discussed is not the truth.
Lord Wallace of Tankerness
Unlike in your Lordships’ House, where every amendment tabled can be debated, amendments are selected in the other place by the Speaker. The system is different. I will not argue which is better, but I find it worth while in your Lordships’ House that we can go through every amendment that is within scope and debate it. It helps us to undertake the scrutiny role which is appropriately ours. I hope that your Lordships feel that the time allocated to this Bill and the proper phasing of it through the different stages is appropriate. As I have already said, the realm Governments were alerted to the drafting change, were given an opportunity to comment and all expressed satisfaction with it.
Lord Lexden
I shall belatedly put my question about what my noble and learned friend was saying about the passage of the legislation in the other realms. Should one infer that if anything goes wrong in any of these realms and the legislation is not implemented, then the legislation falls everywhere and will not be implemented in this realm?
Lord Wallace of Tankerness
That is certainly my understanding. That is why we have the implementation clause. Even if we pass this the intention is that the provisions will not commence until all realms have done what is necessary in each of their territories.
Lord Elton
My Lords, as this is the realm in which the Queen is perceived as being principally the head, Supreme Governor, monarch and the rest of it, presumably the legislation in the other realms and territories is, in a sense, consequential. Therefore I was a little surprised to hear that they are already putting things on their statute books while we have not finalised what we are putting on our statute book. The question I again ask is: what is the procedure? The timing, I gather, is terminus ante quem non; there is no time by which we have to get this done, so the pressure is off. The next question is: what do we use that time for and how does it impact on the other members of the Commonwealth and the territories? If we were, for instance, to adopt my noble friend Lord Lang’s eminently sensible suggestions—or, indeed, the less sensible, in my view, suggestions of my noble friend Lord Northbrook—would that require those countries which already had something on the statute book to adjust it? Or are they simply saying, “We hereby agree with whatever the United Kingdom Parliament finalises”? It is difficult to know how all this is negotiated and how that affects our dealings in the Chamber.
Lord Wallace of Tankerness
My Lords, I will try to help. When we come to later amendments, if there is any further information I can give or anything I say needs to be corrected, I will do so. Some of the realms take the view that under their own procedures they require legislation. It is not for this Parliament to determine what happens in other countries. At Second Reading I reported that a Bill had already passed through the lower House in Canada and had been presented in the upper Chamber. As I said, a Bill was presented to the New Zealand Parliament last week.
Other realms take the lead from this Parliament and have indicated that they do not believe that they will need separate legislation. Their arrangements are such that their head of state will be the person who is the head of state of the United Kingdom. The important point in all of this is that we are passing legislation which will be used in some countries, but it has been done on the basis of an agreement that has been reached.
If the Bill were changed with substantive effect, the other realms would need to adjust their legislation where they are legislating and make sure that the same changes are given effect. That would obviously require the agreement reached between the 16 realms.
As I indicated earlier, the amendment that was moved in the other place was circulated and the other realms were given the opportunity to comment before it was brought forward. They indicated that they were fine. I do not think that it was a substantive amendment, but it was nevertheless one on which we sought to ensure that there was proper consultation and information given and an opportunity to comment. Clearly, if there were a change with substantive effect, that would require further agreement.
Lord Elton
Is it a matter of interest in Canada, for instance, whether the number six, 12 or four appears in the Bill at the point we were looking at just now? If so, what will the Canadians do about it?
Lord Wallace of Tankerness
My Lords, I do not think that I have seen the Canadian legislation but, in as much as it is giving effect to the same agreement, I would anticipate that the number six is there. If there were to be change, as I indicated in my previous contribution, that would have to be agreed with all the other realms. I will stand corrected, and in response to my noble friend Lord Trefgarne’s subsequent amendment I can clarify that. However, my understanding is that all the realms would have to agree if there was a substantive change.
Lord Wallace of Tankerness
My Lords, I do not necessarily accept that it is unconventional. If this Parliament had decided what it wished to do and dictated the matter to the other realms—that have legitimate interest in who is their head of state—it would not have been consistent with the notion of countries such as Australia and New Zealand being independent from the United Kingdom. It was always anticipated that if there were to be a change, agreement would be reached. However, as I said in an exchange during the first amendment with my noble friend Lord Trefgarne, it was important that we sought to get agreement among all the realms and for the changes to be implemented as appropriate in each country. It would have been wrong if we had dictated what the terms should be. Considerable agreement was reached, which New Zealand was responsible for co-ordinating.
It is not as unprecedented as it sometimes sounds; we agree international treaties which Parliament is then asked to ratify. This is not exactly on the same lines but it is important to have that agreement. At the time, everyone seemed to think it was right to seek agreement and then to put the proposals before Parliament. This is a process which predates this Government and has been going on for some time.
Lord Cormack
Is my noble and learned friend saying that, because the Prime Minister has given that undertaking to international colleagues, we ratify this in every last particular? Or is he saying that we have the parliamentary process and therefore while we must adhere to the principles we can deal with the detail? There is a very big difference between the two, so which is it? Do we have the authority, as a House and as a Parliament, to alter the details, from six to 12 for instance, or do we not? If not, it is frankly an abuse of parliamentary procedure.
The Earl of Erroll
On that subject, I may be able to assist. It depends on whether they passed Acts in the parliaments to say that they would agree to whatever we do or whether they try to enact the particular provisions. It would be worth the Minister looking at how they implemented it in Canada or Australia. Did they say, “We will assent to whatever”, or did they say, “This is what we are going to do”? For simplicity, I suspect that they may have gone down the route of saying, “We will assent to whatever the UK Parliament decides”. If so, it solves the problem; though the Executive may enter into treaties on behalf of the Crown, it is for Parliament to enact the rules that govern the Executive and therefore Parliament legislates and forms the principles of these things. If this were a treaty, I would have said it was then in the power of the Executive to agree this. If it is not a treaty, it is in Parliament’s remit to decide what is done. I suggest the Minister should look at how these countries have enacted it into their local laws.
Lord Wallace of Tankerness
My Lords, different realms do it in different ways. To pick up the point of the noble Lord, Lord Northbrook, with regard to the amendment raised by my noble friend Lord Elton—on the same subject matter we are discussing now—it does not change the substance of the agreement but rather seeks to remove a possible ambiguity. It was circulated among the other realms, their comments were sought and they were satisfied with that.
With regard to the point made by the noble Earl, Lord Erroll, I understand different realms are dealing with this in different ways. At least one of them, I think, is saying that it approves of the law passed by the United Kingdom Parliament. Others are approving more substantive legislation, and some believe no legislation is necessary at all. It varies, but at the heart of it was an agreement on the substance—namely, the removal of male bias in terms of succession to the Throne; the removal of the barrier of the person in line of succession marrying a Roman Catholic; and the abolition of the Royal Marriages Act 1772 and its replacement with the sovereign’s consent for the first six in line. Earlier, in my response to my noble friend Lord Lang, I indicated that I do not think that that was in the original Perth agreement but was subsequently agreed. The number of six was agreed with the realms.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend. Will he be kind enough to write to those of us who have an interest detailing how each of the realms concerned will deal with this matter? Would there be any merit in us trying to persuade those parliaments perhaps to accept my noble friend Lord Lang’s injunction to change from six to 12? If one of them did so, what would happen then? Would we have to go back and look at it again? How would it be resolved?
Lord Cormack
Further to that and, in a sense, even more pertinent, if this Bill should pass Report stage in this House and the other place endorses the change of six to 12, is my noble friend saying that that would invalidate this international agreement? Does this Parliament have authority in this matter or not?
Lord Wallace of Tankerness
My Lords, my noble friend Lord Forsyth asked about being informed. Obviously, developments are in train. I will try to give him and others who have contributed information as up to date as possible. With regard to my noble friend Lord Cormack’s question, if we were to make a substantive change, before any implementation could take place, we would have to ensure that there was agreement among all the realms. On a substantive matter such as the six to 12, it would not be a happy situation to have a disjunction between the realms.
Lord Trefgarne
My Lords, this is a probing amendment. I am anxious to know—I believe that others may be as well—whether a consent granted or refused by the sovereign in respect of a marriage to which he or she is required to give consent can be challenged in the court by means of judicial review. I should be grateful if my noble and learned friend would clarify the position.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Trefgarne for raising an issue which I think he raised at Second Reading. The effect of his amendment would be to ensure that in no instance could the sovereign’s consent or otherwise to a royal marriage be challenged in the courts. It has to be said that over the 240 years when consent has been required, it has not been tested in the courts. But in the Government’s view the decision, given that it is a decision taken by the sovereign, could not be challenged in the sovereign’s courts. We do not believe it to be necessary to provide for this in the Bill. Indeed, whether the number is six or 12, it is an unlikely event that someone so close to the Throne would contemplate such an action. My point is that the decision would be one made by the sovereign and would not be challengeable in the courts of the sovereign.
Lord Trefgarne
My Lords, I hope that between now and the next stage the noble and learned Lord may on reflection be able to offer a more forthright assurance than that which he has been able to give so far, if I may say so. The fact is that the process for judicial review in this country is a comparatively new one. It has only been going for the last 15 or 20 years. Therefore the fact of there being no precedent is not much of a comfort to the noble and learned Lord, if I may say so. I would be grateful if he would consider this further before the next stage and perhaps take into account the case referred to by my noble friend Lord True.
Lord Wallace of Tankerness
I shall certainly reflect on it further. It will not come as a surprise to my noble friend that this has already been the subject of some reflection. However, if he indeed wishes to return to this at Report, we will do so. To take up the point made by my noble friend Lord True about the Sussex peerage case, my understanding is that this case was not about whether consent had been refused unlawfully. I think the issue was that consent had not actually been sought.
Lord Trefgarne
My Lords, I would like to say a few words about Amendment 17, which I believe is grouped with this one. That is a slightly separate point, if I may say so. I am picking up the point that my noble friend Lord Northbrook has made, that the parliamentary approval process in many of the Commonwealth countries includes a referendum and is over and above whatever Ministers may have agreed over lunch, as my noble friend Lord Forsyth put it. The fact is that parliamentary approval is required in most, if not all, the Commonwealth countries concerned, and in some of them a referendum is also required. Presumably that cannot be done overnight, so it would be better if the Bill came into force when all the Commonwealth countries had consented to it.
We have a problem if some of the countries approve and some do not. You would not have to think too tortuously to conceive of a situation at some future point where the late sovereign’s eldest child in one country was to be their head of state and the second child, who was a boy, was head of state of another. That is clearly absurd, so we need to speak with one voice on this matter as far as the Commonwealth is concerned. It might therefore be best to wait until they have all agreed.
Lord Wallace of Tankerness
My Lords, this picks up on some issues that were debated earlier. I should clarify that the reason why the Bill specifies the Lord President is that the ministerial responsibility for constitutional and elections law currently rests with him. The Privy Council is also involved in constitutional matters. Indeed, credit should go to my right honourable friend the Prime Minister because I do not think that my right honourable friend the Deputy Prime Minister was in Perth. It was not simply a case of discussing this matter over lunch; it was more than that. I think that the noble Lord, Lord Stevenson, was involved in this issue in a previous incarnation under the previous Administration.
Lord Wallace of Tankerness
The noble Lord may not have been involved in any lunches but I think that he was involved in efforts at No. 10 to try to forge some of the agreements to take this matter forward. That indicates that this issue did not suddenly emerge at the Commonwealth Heads of Government conference in Perth, Australia. It was the opportune time, with the Heads of Government being present, for that agreement to be finalised, but a considerable amount of work and discussion went on ahead of that. As I have indicated, the reason why the Lord President is referred to is due to the current ministerial responsibilities.
I am not wholly unsympathetic to the idea that we might have a subsequent form of approval, but it is not common for Parliament to approve commencement orders. This is a commencement order. It is not as if it is an order that will make amendments to anything or promulgate a new set of regulations; it simply commences something which Parliament will already have approved through the proper parliamentary procedures. Indeed, the Delegated Powers and Regulatory Reform Committee, whose reports the House sets great store by, found no fault with this provision. Given that this matter has been debated, I wonder what further steps we could take. The noble Lord, Lord Stevenson, indicated that there might be an opportunity to reassure both Houses that each of the realms had done what was necessary under their own provisions. I am very sceptical about that but it does service to the arguments that have been put to consider it. We have made it clear—I must again give this reassurance—that we will commence the legislation only once we are satisfied that each realm has taken the necessary steps to give effect to the changes. There is flexibility in the commencement date to ensure that the laws across the realms are consistently applied.
My noble friend Lord Northbrook raised the question of referendums. This was also picked up by my noble friend Lord Trefgarne. My understanding is that referendums would be necessary in other realms only if they decided to amend their constitutions. We do not believe that any realm intends to do so. Officials working on this legislation do their utmost to try to keep in touch with the different realms and they have been given no indication by any realm that it intends to hold a referendum. However, as I indicated to my noble friend Lord Forsyth on an earlier amendment, I will do my best to give an update on where each realm is in terms of what process they are proposing. Perhaps in that context I could helpfully clarify the position on referendums. However, I emphasise to your Lordships’ House that it is our understanding that no realm has flagged up that it intends to have a referendum.
Lord Trefgarne
My Lords, I am happy to accept that and I am sure that my noble and learned friend means what he says. However, I had heard that different referenda were needed in the different states of Australia. I hope that he can tell me that I am wrong about that.
Lord Wallace of Tankerness
My Lords, I repeat that I have not heard about any referendums. The Council of Australian Governments is currently considering the means by which Australia will implement the changes to the laws of succession. It is quite properly a matter for each realm to determine for itself how it should do this. I will try to update the House on these matters as best I can.
Lord Northbrook
Under Section 28 of the Constitution Act in Australia, the proposed law should be submitted in each state and territory to the electors qualified to vote for election of members in the House of Representatives.
Lord Wallace of Tankerness
As I indicated, it is up to each country to do it. We are not telling each country what to do and no one is suggesting that. It will be up to each country to determine, according to their own procedures, how that should be done. The key point is the flexibility built into the commencement clause: it will not be given effect to until we are satisfied that all realms have, by whatever procedures they consider proper and necessary, reached that position.
Lord Forsyth of Drumlean
I need to be absolutely certain that I understand what my noble and learned friend has been saying. Is he saying that this legislation will not come into effect until it has been approved by all the realms? Is he also saying that this legislation will not come into effect unless and until all its provisions have been approved to the letter by all these realms? In other words, is he saying that if there is a difference of a minor degree between one realm and the legislation then the legislation would not be taken forward?
Lord Wallace of Tankerness
My Lords, as I indicated at Second Reading, the intent is that it should be simultaneous commencement in each realm and therefore, by definition, it will not be brought into effect here. Clause 5 will come into effect on the day on which the Act is passed, but that is the commencement section. Otherwise, that then gives effect to what else is there in terms of the commencement order. If there is a material difference we would clearly not be in a position to commence. I think it was my noble friend who made the point that it would not be a very satisfactory position if two generations down the line the Crown went in one direction in one realm and in another direction in another realm. That is what we are seeking to avoid, that is why there was such an effort made to reach agreement and that is why it is important that, in translating that agreement, each realm does that by whatever means it thinks is appropriate according to its own procedures. When these are all done and delivering on the agreement has been reached, the commencement order would be made to ensure that commencement started simultaneously in each realm, delivering the same things.
Lord Forsyth of Drumlean
I do not want to detain the House or split hairs but my noble and learned friend said, “If there is a material difference”. I would not say that my noble friend Lord Lang’s amendment, which suggested changing from six to 12, made a material difference to the import or impact of the Bill. I would say that it was a perfectly sensible, minor adjustment. However, if one of the other realms, overwhelmed by the power of the argument put by my noble friend this afternoon, decided to change it from six to 12, would that mean that commencement would not proceed?
Lord Wallace of Tankerness
There is an agreement reached and it is up to each realm to implement the agreement. If that agreement is, somehow or another, not implemented in a realm, then we do not have the unanimity to permit commencement.
Lord Cormack
My noble and learned friend deserves a gold medal for patience and good, even temper. He is much admired for that, and I mean that very sincerely. Could he confirm that 13 March is, indeed, the date? Will he produce for us, before that date, a list of precisely what is required in each realm? There seems to be some disagreement: my noble friend Lord Northbrook referred to the necessity for referenda but my noble and learned friend seemed to think there was no necessity. It would be very helpful and conducive to good debate and discussion in this place if, on Report, we had a piece of paper which lists the countries, lists the process and gives the date where we are at the moment.
Lord Wallace of Tankerness
I apologise to my noble friend because I forgot about his point on that. The Future Business indeed indicates that Report will be on 13 March. I know that during these deliberations, I have indicated on more than one occasion a willingness to meet one or more of your Lordships. Someone from my private office is in the Box and will, no doubt, be noting that. I will certainly endeavour to ensure that purposeful meetings can take place and provide an opportunity for discussion in time for any amendments that noble Lords wish to table.
With regard to the list, I should say to my noble friend Lord Forsyth that the reason I perhaps hesitate to say how up to date we can get is that that is something I have been asking for. I understand that being bang up to date and complete is more challenging than it may seem. My officials have obviously heard this debate, and I assure the House that we will make the position as up to date as we can.
Lord Northbrook
My Lords, we now move to the schedule to the Bill and another history lesson—the arcane matter of the Treason Act 1351, which most noble Lords will probably be surprised is still in existence.
One crime of treason that still exists is where a person owing allegiance to the Crown rapes either the King’s wife, the eldest daughter—if unmarried—or the wife of the eldest son and heir, who, in old French is,
“la compaigne leisne fitz & heir”.
In the past, such a person would be hung, drawn and quartered. Later, that was replaced by the death penalty, and now, following the abolition of the death penalty, the sentence would be life imprisonment. However, this crime has had no precedent in 660 years. Some people believe that two of Henry VIII’s wives, Anne Boleyn and Catherine Howard, were executed under this Act. They were alleged to have had sex with others, but the word “violer” was used, and it was likely that they were not executed under this Act but under separate treason legislation at the time.
There has therefore been no precedent after 660 years, but the amendment seeks to amend the wording of the Treason Act 1351 to,
“eldest son if the heir”.
The Minister has said that the Bill is not a vehicle for UK-specific policy. However, Graham McBain, the eminent lawyer, believes that it is ridiculous to change a law that has no force anyway in the relevant Commonwealth countries. It has not been used in the UK for 660 years and my view is reinforced by a royal commission report of 1878 and a Law Commission report of 1972. The consequential amendment should therefore be deleted from the schedule. I beg to move.
Lord Wallace of Tankerness
My Lords, as my noble friend said, the amendment removes the consequential amendments to the Treason Act 1351, which are necessary to ensure that the Act continues to have effect, given that the eldest son may not be the heir—in other words, if there is an older daughter and heir. I understand why my noble friend wishes to see the repeal of parts of the Treason Act, and he has rightly identified that the purpose of the Bill is not to deal with UK-specific issues.
I am tempted to observe that if all parts of criminal legislation that pass through your Lordships’ House have such a deterrent effect that no one offends against it for 660 years, we would be very satisfied. However, the point is that the purpose is to bring the provisions of the Bill into effect. It is a purely consequential change. However, I take the point made by my noble friend. As he is aware, there is more recent legislation relevant to treason and I have noted that the Law Commission has treason noted as a “simplification/codification project”. It will be interesting to see what recommendations it provides, but I do not think that this is the place to have a more fundamental review of the treason legislation. If, however, this legislation is to be on our statute book, it is important that it is consistent.
Lord Northbrook
I am grateful to the Minister for his reply and beg leave to withdraw the amendment.
Lord Northbrook
My Lords, I believe that the consequential amendment in the schedule is unnecessary, as it is already contained in Section 12 of the Roman Catholic Relief Act 1829. I was not sure whether that should be repealed and am a little confused in this area.
Lord Wallace of Tankerness
My noble friend’s amendment removes the consequential amendments to the Regency Act, which are necessary to ensure that a person who has married without consent, and therefore loses their place in the line of succession, is also disqualified from being regent. I can assure my noble friend that this consequential amendment is necessary to harmonise the legislation, but also that there is no mistake in not going further and providing for a non-Protestant regent. This takes us back to an earlier debate, because in the sovereign’s absence, the regent undertakes duties related to the sovereign’s position as Supreme Governor of the Church of England and must therefore be a Protestant. That is what underlies this: it is to ensure that there is consistency, given the provisions of this Bill. I therefore invite my noble friend to withdraw his amendment.
Lord Northbrook
I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.
Succession to the Crown Bill
Lord Wallace of Tankerness Excerpts(11 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Elton
My Lords, I want to add a note of concern to that of my noble friend Lord Trefgarne by referring to the report on the Succession to the Crown Bill produced by the Constitution Committee, which holds the strong view that there is no need for haste.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the effect of my noble friend’s amendment would be, as he has indicated, to delay the removal of the male gender bias in the line of succession for almost 50 years. Perhaps I may pick up the point made by my noble friend Lord Elton and his reference to the report of your Lordships’ Constitution Committee. It is fair to say that since that committee reported, there has not been any undue haste. The time made available for debate on this Bill in the other place was not even fully used up, and in your Lordships’ House we are proceeding in the normal fashion with the appropriate elapses of time between the different stages. There is certainly no intention to cut short the debate in this House.
My noble friend has asked why we are doing this now and at this speed. The position is that the Prime Ministers of 16 Commonwealth nations, of which Her Majesty is the head of state, agreed during the Commonwealth Heads of Government Conference in Perth in October 2011—that is why the date has been put into the Bill—to work together towards a common approach to amending the rules on the succession to their respective Crowns. It is fair to say that that was the product of considerable work and discussion over many years. Indeed, discussions were ongoing during the previous Administration in this country. All these countries wish to see change in two areas, the first of which is covered by this clause, and that is to end the system of male preference primogeniture, under which a younger son can displace an elder daughter in the line of succession. It is right and appropriate that this clause will remove a piece of long-standing discrimination against women that may well have been acceptable in earlier centuries, to which my noble friend referred. This provision will modernise and affirm the place of our constitutional monarchy.
At Second Reading the noble Lord, Lord Janvrin, said that:
“If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy”.—[Official Report, 14/2/13; col. 802.]
That is why this is an appropriate time to make the change, because it will be done without affecting anyone who currently would have a prior claim on the throne. If, however, we wait for a situation where there may be a daughter and then a younger brother, and we tried to make the change then, it is inevitable that that would be more controversial.
Perhaps it is also worth reflecting that if the Duke and Duchess of Cambridge have as their first born a son, have only sons or, indeed, have only daughters, the effect of this clause may not bite until the next generation, possibly after 2060. However, as the noble Lord, Lord Janvrin, made clear, it would be controversial and possibly even destabilising to the monarchy to have this kind of debate at that point. We look forward to the birth of the Duke and Duchess of Cambridge’s first child knowing that we can celebrate, when this Bill is passed, that whether the baby is a boy or a girl they will have an equal claim to the Throne. I therefore invite my noble friend to withdraw his amendment.
Lord Trefgarne
My Lords, I hope that we will not hear too much more about the Commonwealth Heads of Government Conference where it was all said to be agreed. These matters are not agreed by ministerial diktat, however senior and distinguished the Ministers may be, but by the Parliaments of the countries concerned, and in some cases by a referendum as well. When the Heads of Government agreed all this in Perth back in 2010, it was subject to parliamentary approval in the relevant countries. That parliamentary approval has not yet been received, not least in this country. I hope very much that we will be thinking in terms of parliamentary approval rather than ministerial diktat, upon which my noble and learned friend seems to be relying.
Lord Wallace of Tankerness
I entirely accept what my noble friend says on the importance of the Parliaments; indeed some of the realms do not necessarily feel they need parliamentary approval, but obviously in this country we do. I am sure that he would agree that we needed prior agreement before any measures could go forward to the respective Parliaments.
Lord Trefgarne
Yes, but that is not included in this clause. That said, I do not wish to delay your Lordships on this matter. I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
My Lords, as the noble Lord, Lord Deben, says, the issue is a sensible one. I then break with the tradition of everyone else who has spoken by saying it may be a sensible issue, but the issue is about property, the ownership of an estate, about title—as reflected in the words of the noble Lord, Lord Lang—or about a business, in the words of the noble and learned Lord, Lord Lloyd of Berwick. While it may be an important issue, it is not about the constitution of this country and therefore not really appropriate to what is an important and, in our view, welcome change in our laws of succession. That is what this Bill is really about.
It is quite possible that the founding charter governing the Duchy of Cornwall may need changing—I had not realised that it was in 1337. Interestingly, 600 years after that, from 1937 to 1952, the title fell into abeyance. Our present monarch seems to have done a fantastic job without the benefit of being the Duke of Cornwall in that period, so I am not certain that this needs to be done. If it does, it should be done by another way and not in this Bill, which is about our rules of succession. I hope that this is what your Lordships’ House will address itself to.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Northbrook for introducing this amendment, which has generated a considerable amount of debate and discussion. I understand where he and other noble Lords who contributed to the debate are coming from as they seek to remove gender bias in the descent of the Duchy of Cornwall. I will try to clarify the current situation. The title can pass only to the eldest son and heir of the monarch. Thus—as has been indicated—when she was heir presumptive to the throne, Her Majesty, as Princess Elizabeth, did not hold the title of Duke of Cornwall.
As has been said, the title and inheritance of the Duchy were created by King Edward III in 1337, and vested in the Black Prince by a charter having the authority of Parliament. My noble friend Lord Deben said that this was an opportunity seek to remove anomalies. It is fair to say that this one is perhaps even slightly more anomalous than it might appear on the surface. The mode of descent specified by the charter is unusual, and differs from that which commonly occurs in respect of hereditary titles. The monarch’s eldest son is automatically Duke of Cornwall immediately that he becomes heir apparent. However, if the monarch has a son who is the heir apparent and that son dies before the monarch, leaving a son of his own—a grandson of the monarch—the grandson would become heir apparent but would not be Duke of Cornwall because he is not the son of the monarch. It is not just a question of daughters not inheriting the title; it would be that grandsons did not, either.
With the Duchy of Cornwall we therefore have an unusual and interesting piece of English history that does not conform to the standard rules of descent for hereditary titles. However, it is exactly that: a piece of English history and not an issue that is of direct relevance to the succession to the Crown—as the noble Baroness, Lady Hayter, indicated—nor to the other realms of the Commonwealth. I made it clear at Second Reading that it is not the Government’s intention to deal in this legislation with UK-specific matters. This amendment very much falls into that category.
My noble friend Lord Lang referred to other titles, to which the same arguments apply. I tried during my reply at Second Reading to set out what would happen to these. I am happy to write to my noble friend to outline the cases in these situations.
Lord Trefgarne
My Lords, when the Minister writes to our noble friend Lord Lang on the various other titles, would he include an answer to the point I raised at Second Reading: whether the Princedom of Wales can be passed to a female if the sovereign of the day so decides? He was not able to give me an answer to that at Second Reading, as I recall. If he could touch on the matter in his letter to our noble friend Lord Lang, I would be greatly obliged.
Lord Wallace of Tankerness
My Lords, I understand that the creation of the Princedom of Wales, let along the matter of it going to a daughter, is very much a matter for the personal decision of the sovereign. The current Prince of Wales did not automatically become Prince of Wales upon Her Majesty’s accession in 1952; that did not happen until 1958. It is a matter for the sovereign, and I will seek to set that out in a letter which I will copy to others who contribute to this debate.
The noble and learned Lord, Lord Lloyd, raised a query about the efficient running of the estate between 1936 and 1952. There have of course throughout history been stretches when there has been no Duke of Cornwall, and the Duchy continues to today. I pay tribute to the leadership which the present Duke of Cornwall has given. When I was in the other place, my constituency, Orkney and Shetland, could not have been more remote from Cornwall. Even in Orkney and Shetland, however, we were aware of the work of the Duke of Cornwall on his estate. I see my noble friend Lord Maclennan of Rogart in his place. Certainly, closer to home, I know of the work of the Duke of Rothesay in respect of the Castle of Mey estates since he inherited them from his late grandmother. Those tributes were rightly paid.
Lord Maclennan of Rogart
As a footnote, I also commend the Duke of Cornwall for the work that he has done in setting up the North Highland Initiative: three separate charitable companies to promote the well-being of the area.
Lord Wallace of Tankerness
Indeed. I certainly am aware of that and the contribution that my noble friend has also played in these developments.
As was perhaps surmised by my noble friend Lord Deben, there is of course nothing to stop a female heir having an active role in the running of the Duchy, but that would be a matter for the sovereign to decide at the appropriate time. As has already been recognised, a female heir apparent will not find herself at a financial disadvantage. The Sovereign Grant Act 2011 broadly ensures that financial provision equivalent to the income from the Duchy is made for the heir apparent.
As was indicated by the noble Baroness, Lady Hayter, the Bill seeks to achieve three things set out in the first three clauses. It is about succession to the Crown. It is relevant to the other realms of which Her Majesty is Queen and head of state. I do not believe that this is the legislative vehicle in which to address a number of the other issues which have been raised. For these reasons I invite my noble friend to withdraw his amendment.
Dr David Livingstone
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Lord Steel of Aikwood
To ask Her Majesty’s Government whether they propose to commemorate the 200th anniversary of the birth of Dr David Livingstone.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, Scotland Office Ministers and officials are working closely with the Foreign and Commonwealth Office, the Department for International Development and the David Livingstone 200 partnership to assist with a programme of celebrations to mark the 200th anniversary of Dr Livingstone’s birth. As part of the wider programme, the Scotland Office will host a commemorative reception at Dover House, which will follow on from a service that will be held in Westminster Abbey on 19 March, the actual 200th anniversary of Dr Livingstone’s birth.
Lord Steel of Aikwood
My Lords, I thank my noble friend most warmly for that Answer. Is he aware that, in view of David Livingstone’s reputation as a missionary, an explorer and, above all, a campaigner against the slave trade, commemorations will take place next month in Zambia, Tanzania and especially in Malawi? Will he tell the House whether there are any activities planned in Scotland itself, apart from the excellent news that the museum at Blantyre will be revamped by the National Trust?
Lord Wallace of Tankerness
My Lords, my noble friend is absolutely right to pay tribute to Dr Livingstone. It is significant that in the post-colonial age some of the place names associated with David Livingstone, such as Blantyre and the name Livingstone itself, have remained. That speaks volumes about the contribution that he made and the standing in which he is still held. For example, in Zambia there is a programme called Livingstone 2013, in which the British High Commission has been very actively involved. My noble friend also asks about Scotland. The National Museum of Scotland has a special commemorative exhibition, which has run since November until April this year. There will be events on the day. My right honourable friend the Secretary of State for International Development is planning a flagship event at Abercrombie House in East Kilbride, the offices of the Department for International Development, on 18 March and, very interestingly, a time capsule is proposed, linking children from Malawi and Scotland, which will be Skype-linked on 19 March.
Lord Morgan
My Lords, the Prime Minister has spoken about a shameful episode in our imperial past, the Amritsar massacre, and quite rightly so. Would it not be very valuable if the Prime Minister could speak, perhaps not only in Scotland, about a pacific, idealist, Christian visionary, like David Livingstone, who presents a very contrary view of our imperial past and perhaps shows how this country should behave towards colonised people but seldom manages to do so?
Lord Wallace of Tankerness
The noble Lord makes a very important point about the contribution that David Livingstone made. There will be commemorations, not least in the service at Westminster Abbey. I am not aware that the Prime Minister will attend, but certainly representatives of the United Kingdom Government and I think of the Scottish Government will attend and we have sought to invite high commissioners and ambassadors in London of countries with which David Livingstone was associated.
Lord Selkirk of Douglas
Will the Minister accept that the National Trust has done an extremely good job in conserving David Livingstone’s house in Blantyre, where he was brought up with his family in one room in extreme poverty? One of the moving aspects of his life was that, when he set off, he had only his medical equipment, his Bible and the clothes in which he stood up.
Lord Wallace of Tankerness
My Lords, I echo the remarks made by my noble friend Lord Selkirk, particularly in paying tribute to the National Trust for Scotland, which has been very much involved in the David Livingstone 200 partnership and has made an important contribution not only with regard to the house at Blantyre but also with regard to a number of the commemorative events in Scotland.
Lord McAvoy
My Lords, Dr David Livingstone was born in the town of Blantyre, which I had the honour and privilege to represent in the House of Commons. I join in the congratulations and thanks for all the celebrations planned. However, just a few years ago, the David Livingstone Centre in Blantyre, to which the noble Lord, Lord Steel, referred, was in danger of closing, and it was South Lanarkshire Council which took the lead by involving the National Trust and other agencies so that the centre is now thriving again. Will the Minister join me in recognising the role of South Lanarkshire Council in this, particularly that of the leader, Councillor Edward McAvoy?
Lord Wallace of Tankerness
My Lords, in this particular case, I believe that tributes to South Lanarkshire Council are deserved. I am aware that it took those steps. I think that I am right in saying that South Lanarkshire Council also plays an important role in the Scotland-Malawi Partnership. The University of Edinburgh calculated that up to £30 million in terms of expertise, time and money is contributed by those who are partners in the Scotland-Malawi Partnership.
Lord McConnell of Glenscorrodale
My Lords, is the Minister aware of the current membership of the Scotland-Malawi Partnership, which is more than 600 individuals and organisations, embodying the mutual respect that was so much embodied by Dr Livingstone back in the 19th century? Given Dr Livingstone’s campaign against the slave trade, will the Government take the opportunity this year to redouble their efforts internationally regarding the 2.5 million individuals around the world who are reckoned to be in slavery or prostitution as a result of people trafficking?
Lord Wallace of Tankerness
My Lords, I take the opportunity to note the contribution that the noble Lord, Lord McConnell, has made to the Scotland-Malawi Partnership. I know his personal commitment to this. I take and endorse his point that a proper tribute to Dr Livingstone’s campaigns against slavery would be for us to continue and indeed increase our efforts to tackle human trafficking. I attended a very useful meeting with a number of representatives in Scotland representing the UK Government on the day last year when we marked our commitment internationally to tackle human trafficking. That would be a worthy memorial to Dr Livingstone’s efforts.
Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013
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Lord Wallace of Tankerness
That the Grand Committee do report to the House that it has considered the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I will provide the Committee with a brief summary of what the order seeks to achieve. It is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Police and Fire Reform (Scotland) Act 2012, which received Royal Assent on 7 August 2012. I shall refer to this as the 2012 Act.
The 2012 Act creates a single Police Service of Scotland, which will be maintained by the Scottish Police Authority. This service will replace the eight existing police forces maintained by local police authorities and the two central bodies which currently provide national policing services in Scotland. The 2012 Act, together with this order, repeals the Police (Scotland) Act 1967 and replaces it with a new statutory framework for policing.
The 2012 Act also creates a single Scottish Fire and Rescue Service. This newly created service replaces the two unitary fire and rescue authorities and six joint fire and rescue boards which are currently in place. The 2012 Act amends the Fire (Scotland) Act 2005 to establish this single fire service.
Additionally, the 2012 Act provides for the Police Complaints Commissioner for Scotland to be renamed the Police Investigations and Review Commissioner, with expanded powers to carry out investigations into serious incidents and other matters relating to the police. The 2012 Act also places independent custody visiting in Scotland on a statutory footing, ensuring compliance with the Optional Protocol to the Convention Against Torture.
As will be seen, it is a very substantial order in terms of size, but I can assure the Committee that it is entirely consequential in content. Its intention is not to make any new policy but simply to ensure the continuity of current arrangements when the 2012 Act comes fully into force on 1 April by updating existing legislation to refer to the newly created Scottish Police Authority, Police Service of Scotland and Scottish Fire and Rescue Service.
The order makes provision for mutual aid and collaboration agreements between the new Scottish services and other forces and services in the United Kingdom. For police, this replaces provision in the Police (Scotland) Act 1967 and, for fire, it provides a clear statutory footing to ensure that the current relationships continue to work effectively. The order will also make certain transitional and savings provisions, again for the purpose of guaranteeing continuity of services.
Following its scrutiny of the order, the Secondary Legislation Scrutiny Committee drew the attention of this House to the instrument on the grounds that it gives rise to issues of public policy which may be of interest to it. I take this opportunity to thank the committee for its consideration of the order and address the issue that it raised.
Article 9 of the order makes it an offence to cause disaffection among members of the Police Service of Scotland, the British Transport Police or the Civil Nuclear Constabulary. It also makes it an offence to induce a member of any of those forces to withhold services.
With regard to the scope of the offence, I assure your Lordships that it is not the intention that an individual would be charged under the offence set out in Article 9 for merely expressing an opinion or legitimate concerns. The UK Government would expect a prosecution to follow only where there was a real and serious attempt to cause disaffection. Such action could lead to a breakdown in the ability of the police to maintain public order and to protect society. Any attempt to undermine the role of the police in this way is a serious matter and must be addressed. That is why we consider this offence to be necessary.
Offences parallel to that proposed in Article 9 already exist in relation to all UK police forces and the specialist forces; namely, the British Transport Police, Civil Nuclear Constabulary and Ministry of Defence Police. The Home Office has confirmed that there is no intention to remove the offence in England and Wales, and it is my understanding that its repeal is not being contemplated in Northern Ireland either. These offences are considered to be essential to the proper operation of policing. The intention of the order is to ensure that the new Police Service of Scotland can continue to work effectively with the other police forces within the UK. Not to include this offence would cause a discrepancy between constables of the Police Service of Scotland and those of other UK forces. It would also cause a discrepancy, for example, between members of the British Transport Police operating in Scotland and their colleagues in England and Wales.
It may well be the case that your Lordships’ House will wish to consider the terms of this offence in a wider context. I would submit that the purpose of this order is simply to maintain continuity and consistency between the new Police Service of Scotland and other forces across the UK. It would not be appropriate if the Scottish Government had proposed removing the offence for forces operating in Scotland as this would leave a significant gap for effective policing throughout the United Kingdom. Moreover, if your Lordships’ House continues to have concerns about the general policy surrounding the offence of disaffection, it would not be appropriate to use this technical piece of subordinate legislation to address such wider concern here as this order is concerned with maintaining effective policing in Scotland and ensuring continuity of current policing arrangements.
With regard to the instrument as a whole, it is worth noting that this order is part of a much wider legislative programme to provide a smooth transition to the new police and fire services in Scotland. Indeed, 15 other instruments have been laid to date in the Scottish Parliament, and I understand that 10 more are planned, while a related order, the Scottish Administration (Offices) Order 2012 (SI 2012/3073) was considered by Her Majesty in Council and subsequently laid before this Parliament on 19 December 2012.
Work on this consequential order has been undertaken by more than 20 departments within the United Kingdom Government, the Scottish Government, the Northern Ireland Executive and the Welsh Assembly Government, who have agreed that the provisions in this order are necessary to ensure the effective operation of the new police and fire services in Scotland and the continuation of effective relationships with their partners throughout the UK. With the 2012 Act completing its passage through the Scottish Parliament only in June last year, agreement on the policy and the drafting of the instrument has been concluded at an excellent pace, with great credit to all those involved across the different Governments.
It is also fair to point out that neither coalition party in the Government here at Westminster was supportive of the measure when it went through the Scottish Parliament. Indeed, my party opposed it and the Conservative Party abstained. Nevertheless, I believe that it is consistent with the spirit and mutual respect that we give effect to an Act properly passed by the Scottish Parliament. Indeed, it was passed by 101 votes to six with 14 abstentions. I believe that it demonstrates the United Kingdom Government’s commitment to working with the Scottish Government to make the devolution settlement work. I hope that this Committee will agree that this order is a sensible use of the powers in the Scotland Act and that the practical result is an example of how we can make devolution work. I commend the order to the Committee. I beg to move.
The Earl of Mar and Kellie
My Lords, I am perfectly happy with what the Scottish Parliament has legislated for and I am happy with the order. I should like to record my surprise at the strategy of going for a national police force in Scotland. It certainly has been the tradition in Scotland and across the whole of Britain as an island that policing should be organised locally. At home, I have maps which point out where the Alloa borough police force was: it had a chief constable, a sergeant and 10 constables. The tradition in Britain has been one of local policing.
I also acknowledge that in another part of English-speaking Europe, in Ireland, that it always has had national policing. After 1922, the Royal Irish Constabulary was replaced by two national forces—the RUC and the Garda Siochana. I want to record the fact that I am surprised by the strategy which apparently we want to have in Scotland, while I am very happy about us having a strategy in Scotland.
Lord McAvoy
My Lords, the Opposition support the measure, which as yet is another example of continuing devolution. I will not pay tribute to the Minister’s staff today because the last time I praised one of them, she mysteriously vanished and we have never seen her again. I do not know quite what he has done to her but I hope that she survives and makes a further appearance. The noble Earl, Lord Mar and Kellie, has mentioned the Scottish tradition of policing but we all have to recognise devolution and its implications. There was a consultation process that was very supportive and there did not seem to be any dissenting voices to the proposal. As the Minister rightly says, this is necessary after the 2012 Act. I cannot quite remember the context in which he mentioned torture, but I do not think that that has relevance on this.
There are comparisons with other nations and regions of the United Kingdom—we all understand the Northern Ireland one—but the Scottish Government have considerable powers and I can understand why there are reservations about having a national police force against a background of the police always being regionally organised. I was on the police and fire committee of Strathclyde regional council, which has a very good operation. The Minister mentioned that there were 14 abstentions in the Scottish Parliament—I presume that that was his own party, or did the Liberal Democrats vote against? I welcome the conversion and hope that we can have further co-operation like that.
Although the report is rightly subject to scrutiny and questioning, I want to develop a wee bit further the principle of disaffection. As a trade unionist, the word “disaffection” towards anything raises questions. It has been mentioned that some of the clarification that the Minister’s staff was able to pass on was on questions asked by the committee regarding who could be charged with disaffection. The initial reply seemed to indicate that only certain police could be charged with disaffection, but further clarification suggested that it could apply to a member of the public as well. Although I totally accept the Minister’s point that the Government do not envisage anyone being charged with this wrongly, unfairly, or whatever, he will know better than I do that legal history is full of people who have been prosecuted for offences for which at the time it was indicated they would not be prosecuted. So, I would like further clarification on disaffection because the police are different. It is acknowledged that they are not allowed to join trade unions. We have to have law and order and a legal system, so it is right that in case anybody tries to suborn or undermine the police in carrying out their duties, the defence should stay in.
I press the Minister to go a bit further in giving us assurances that no “innocent bystanders” who have had a pint too much on a Saturday night and preach treason—I have certainly done that myself a few times with pints of soda water and lime, I hasten to add—will be prosecuted. I seek assurances that ordinary members of the public, letting off steam—to use one of the expressions mentioned—will not be liberally prosecuted. I will leave it at that and hope that the Minister can give us some of those answers. That will reassure me.
Lord Wallace of Tankerness
My Lords, I thank both my noble friend Lord Mar and Kellie and the noble Lord, Lord McAvoy, for their contributions to the debate. I note the concerns of my noble friend with regard to the establishment of a national police force. He will be aware, as I indicated in opening, that our Scottish Liberal Democrat colleagues in the Scottish Parliament voted against this. At one point the noble Lord, Lord McAvoy, suggested that the 14 were Liberal Democrats—if only we had 14 Members in the Scottish Parliament. It was five Liberal Democrats and one Green who voted against and 14 Conservatives who abstained. The point is not about whether we support this policy intent, but that the Act was properly passed by the Scottish Parliament, and by a large majority. It is very consistent and in the spirit of the devolution settlement that this Parliament, through the use of a Section 104 order, should give effect to the intentions of the Scottish Parliament in areas where, because of its competence, it was not able to do so. It is in that spirit of making the devolution settlement work that we bring forward this order.
Scotland Act 2012 (Consequential Provisions) Order 2013
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Lord Wallace of Tankerness
That the draft order laid before the House on 10 January be approved.
Relevant document: 16th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 7 February.
Succession to the Crown Bill
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Succession to the Crown Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill. I beg to move that the Bill be now read a second time.
This is a relatively short Bill but I do not think that any of us are under any illusions as to how profound it is. Indeed, is a rare occasion to bring a Bill of such historical import to this Chamber, and I am sure we look forward to a full, learned and illuminating debate.
This is a Bill with a clear purpose; to bring gender equality to the rules of succession and to remove explicit pieces of religious discrimination from our statute book. In so doing, we will make the rules governing succession fit for the 21st century, and reaffirm and strengthen the place of the monarchy within our venerable constitutional settlement—a monarchy that has shown a remarkable ability to adapt over the centuries.
The Bill does three things. First, it ends the system of male preference primogeniture in the line of succession. Secondly, it removes the bar on a person who marries a Roman Catholic from succeeding to the Throne—a legal barrier that applies to Catholics and only Catholics and no other faith. Thirdly, it replaces the Royal Marriages Act 1772—an Act that requires any descendent of King George II to seek the reigning monarch's consent before marrying, without which their marriage is void. This clause has attracted some debate. It may help the House if I set out briefly why we have added this clause to the other principal planks of the Bill.
With King George II’s descendants now numbering in their hundreds, this law is clearly unworkable and so it is replaced with a provision that the monarch need only consent to the marriages of the first six individuals in the line of succession, without which they would lose their place. In this way, we retain the tradition of monarchical consent but, in limiting it to the people who could feasibly assume the Throne, it will be applied in a much more reasonable way.
These changes will be effected not just in the United Kingdom, but in each and every realm of the Commonwealth for which Her Majesty is head of state. This was the agreement made by the realm heads of government in Perth, Australia in 2011. That announcement let to a long consultation among the realms to agree a UK Bill that provides the framework for these important changes across the far corners of the Commonwealth.
Agreeing a Bill with such a global reach has indeed been a diplomatic feat and one which colleagues in New Zealand have led with vigour and dedication. It has also been some time in the making: it took more than a year of detailed discussions before we received the final written consent from each realm. At the beginning of this month, we saw the Canadian Succession to the Throne Bill have its Third Reading in the Canadian House of Commons, and that Bill is now being considered by the Senate. This demonstrates the careful choreography and consideration that has been required.
In many ways, this Bill is akin to an international treaty and it is incumbent on us to give this legislation detailed consideration of what I hope is a Bill with a clear purpose. This is not just to assure ourselves that the law is sound, but also to consider that these changes will be brought into effect in lands beyond our borders, lands that are tied together by a common history and monarch through the Commonwealth.
Some, such as Canada, will pass their own legislation to achieve these goals, while others, such as Belize and Papua New Guinea, have been clear that legislation is not required in their jurisdictions and the laws can apply directly. With this in mind, I make it clear that it would, in my opinion, be unwise to use this Bill as a vehicle for UK-specific changes that would be of little or no relevance to the realms.
For this reason, the Bill does not, for example, touch on the complex and often emotive issue of hereditary peerages. Moreover, there are some key differences between the law on hereditary peerages and the rules governing succession to the Crown. First, the Crown does not become extinct if there are only female heirs. Secondly, the succession of the elder daughter or her descendants is automatic in the rules governing succession to the Crown, as indeed we saw when Her Majesty succeeded her late father, King George VI. Changes to the law on succession to the Crown can be effected without any change to the legitimate expectations of those in the line of succession. Changes to the rules governing succession to hereditary titles would be far more complicated to implement fairly. For this reason, we do not believe that changes to the rules governing succession to the Crown should serve the purpose of addressing what is the quite separate issue of hereditary titles.
I want to pause on the issue of hereditary titles to assure the House that the removal of the male bias in the rules governing the succession to the Crown will not result in any other royal titles becoming detached from the Crown. We must also bear in mind that any significant change to the substance of the Bill would require further consultation with the realms before it could be agreed. But that should not, and indeed it must not, prevent us having a full debate and giving this important constitutional change the scrutiny it deserves and requires. I fully concur with noble Lords on the Constitution Committee of this House who in their report on this issue noted the need to provide the opportunity for full debate in Parliament. With this in mind, I was glad to note that Members in another place had more than sufficient time to consider the amendments that were selected for debate. A number of issues were raised by Members in another place, including by Mr Rees-Mogg, who instigated a most enthralling debate on the position of the established church and the potential for a Roman Catholic to succeed to the Throne.
I want to reiterate in this House the Government’s full support for the established church in England, with the Sovereign as its supreme governor. We consider the relationship between the church and the state in England to be an important part of our constitutional framework, which has evolved over the centuries, and we have no intention of changing the position. It is also worth pausing briefly to consider what the Church of England has said on this matter, which has been set out in a briefing issued to noble Lords by the church. It states that,
“the present prohibition on anyone remaining in the line of succession or succeeding to the Crown as a result of marrying a Roman Catholic is not necessary to support the requirement that the Sovereign join in communion with the Church of England”.
Indeed, this Bill does nothing to change the requirement that the Sovereign be in communion with the Church of England and maintain the established Protestant religion in the United Kingdom. In a speech in this place during the debate on the Queen’s speech on 14 May 2012, the then right reverend Prelate the Bishop of Blackburn said:
“The references in the humble Address to reform of the rules of royal succession are sensible and timely. I know I speak for all on these Benches when I say that we wish the Government well in their present consultations with the other Commonwealth realms. We look forward to and hope that it will then be possible for the necessary Bill to pass quickly through both Houses of Parliament”.—[Official Report, 14/5/12; col. 168.]
The Archbishop of Westminster has said that:
“I welcome the decision of Her Majesty’s Government to give heirs to the Throne the freedom to marry a Catholic”,
and:
“I fully recognise the importance of the position of the Established Church in protecting and fostering the role of faith in our society today”.
I am sure that this issue will be something that noble Lords will wish to discuss further in the course of our deliberations.
A further issue that was raised in another place was whether the children of a mixed marriage would be required by canon law to be brought up as Roman Catholics. I should like to be clear that Roman Catholic teaching requires the Catholic partner in a mixed marriage to do their best to have the children raised as Catholics, but if there is a “just and reasonable cause”, and it is certainly my view that the protection of the place of the Established Church would qualify as a reasonable cause, then the local bishop can grant permission for the marriage. I want to make it clear that this decision is made at the level of the local bishop, not the Vatican.
There was also discussion in another place as to why the Royal Marriages Act was replaced with a provision requiring monarchical consent to the marriage of the first six in line to the Throne. I should make it clear that the power of monarchical consent to marriage should be limited to avoid undue restrictions and penalties on people who are not in the immediate line of succession. However, there remains a public interest that consent be given for the marriage of someone who may well become our head of state. Consent of the monarch to the marriage of the first six in line to the Throne provides, in the Government’s view, a modernisation of the rule. Since the Royal Marriages Act was passed, the Crown has never passed to anyone more than five steps removed from the reigning sovereign at the time of their birth, the furthest removed being Queen Victoria. Given that, the Government believe that the consent for the first six in line provides sufficient proximity to the Throne.
The Bill protects the spiritual and temporal position of our monarchy while also removing two long-standing pieces of discrimination currently entrenched in law against women and Roman Catholics. Removing discrimination should never be described as an “unnecessary tinkering”, as some have described it. The Bill provides for equality between the sexes in the line of succession. Looking back to our great female monarchs, not least to our own sovereign, Her Majesty Queen Elizabeth II, and the great service that they have all provided for our country, I hope that these are changes that we can all support. I commend the Bill to the House.
Lord Wallace of Tankerness
My Lords, I begin by thanking all noble Lords who have taken part in the debate. It has lived up to expectations by being wide-ranging and of considerable interest. A great deal of learning has been brought to the debate, particularly the very interesting historical exchanges between my noble friends Lord James and Lord Marks. This debate has been well informed because of the contributions from all sides of the House. I particularly welcome the fact that the Bill has been generally welcomed on all sides of the House—by the official Opposition, by those from my own party on the Liberal Democrat Benches, by Conservative colleagues and indeed, by the right reverend Prelate the Bishop of Worcester, who indicated the welcome that the Church of England has brought to it.
My noble friend Lord Elton noted that I was writing down his name, because he possibly summed up the view of many contributors to this debate when he said that he believed that the changes proposed are sensible but that he has doubts and difficulties. It is important that those doubts and some of the potential difficulties, the concerns expressed about possible unforeseen and unintended consequences, have been aired in our debate. I am sure that they will be aired as the Bill proceeds through your Lordships’ House.
At the outset, I address the issue that the Bill has been fast-tracked. I accept that the Explanatory Memorandum states that, but in fact the Government in the other place paid regard to what was said by your Lordships’ Constitution Committee. My noble friend Lord Northbrook took exception to that when he talked about the amount of time available and the number of amendments. Of course, in the other place, not all amendments are debated; it is the Speaker’s selection. The point is that more time was made available than the time taken up by the amendments. It is not really the fault of the Government that no more amendments were tabled. There was sufficient time to debate the amendments that were selected in the other place.
With regard to proceedings in your Lordships’ House, I confirm that, as on any Bill, it has been agreed through the usual channels. The normal time limits will be observed, and I believe that there will be ample time in Committee, on Report and at Third Reading for proper scrutiny and consideration to be given to the Bill.
This might also be an appropriate moment to mention, as the noble Lord, Lord Stevenson, said, the fact that provision on male-biased primogeniture is taking effect from the date of the announcement at the Commonwealth Heads of Government conference in October 2011 means that there is no rush with regard to any impending birth.
My noble friend Lord Northbrook asked whether a referendum was necessary in any of the other realms. Of course, it is for the realms themselves to decide how to give effect to the changes, but it is not our belief or understanding that any realm needs or intends to undertake a referendum. We have been assured as part of the negotiation that we have a full commitment to ratification by the respective realms of which Her Majesty is head of state.
My noble friend Lord Trefgarne asked about the commencement clause. Those provisions are framed as they are to ensure that they are brought into force by means of orders made by the Lord President. The Government expect to bring the rest of the Bill, including Clause 5, into force at the same time as the other realms bring into force any changes to their legislation or other changes necessary for them to implement the Perth agreement. There is, as will be noted, a power to specify the time of day of commencement. Assuming that the other realms make the same provision, that will enable the changes to succession to be brought into force at the same time, but at different local times, in all 16 Commonwealth realms. Clause 5(3) allows for flexibility in commencement should unforeseen circumstances arise.
As has been said, the first clause relates to the removal of the male preference in primogeniture, and will allow the firstborn child, be it a son or a daughter, to succeed to the Throne. My noble friend Lord Elton referred to fairness in 2013. The noble Lord, Lord Janvrin, also referred to a sense of fairness and made the important point that if we were not to do this, there could at some future stage be a situation where a younger brother would succeed ahead of an older sister and that in itself could cause difficulty for the Crown, because it would be seen to be not in touch. By doing this, we help to give stability to the Crown.
An issue initially raised by my noble friend Lord Trefgarne but also referred to by my noble friend Lord Lexden and others, was the implication for royal titles. I shall do my best to go through them. We do not believe that the removal of male bias in rules governing succession to the Crown will result in any other royal titles becoming detached from the Crown. The Duchy of Lancaster is held by the sovereign. We are confident that the Duchy must remain with whomsoever is the monarch. Clearly, the monarch at the moment being a Queen has not created any difficulty in the Duchy of Lancaster being held by the monarch. The attachment of the Duchy to the Crown is now established fact.
With regard to the Dukedom of Cornwall, at present, the title can pass only to the son and heir of the monarch. Thus, when Her Majesty was the heir presumptive, as Princess Elizabeth, she did not hold the title of Duke of Cornwall. Therefore, we believe that where there is a female heir, the title could not pass to a younger brother and would not detach from the royal line. I assure the House that, in any event, a female heir apparent will not find herself at a financial disadvantage because, as the noble Lord, Lord Janvrin, pointed out, the Sovereign Grant Act 2011 ensures that financial provision equivalent to the income from the Duchy is made for the heir apparent. The title would not therefore be automatically inherited by a daughter; the Duchy would go into abeyance, as indeed happened when Her Majesty was Princess Elizabeth and was heir presumptive. Provision is made under the Sovereign Grant Act for the financial consequences that flow from that.
My noble friend Lord Northbrook asked about the position of the style of Princess of Wales. On this issue, I would simply say that the granting of certain royal titles, including that of the Prince of Wales, is a matter for the sovereign. Furthermore, it is a matter not directly related to the rules of succession. It would be a matter not for the scope of this Bill but for the sovereign personally.
Lord Berkeley
Very briefly, I understand what the Minister is saying about the Duchy of Cornwall but if there was a female heir to the Throne and she was therefore not the Duchess of Cornwall, who would go round and play landlord in Cornwall in their absence? Would it be nobody, so to speak?
Lord Wallace of Tankerness
I think I am right in saying that there is a council of the Duchy. Indeed, that position arose when the present Queen was heir presumptive but was not the Duchess of Cornwall. There is therefore ample precedent for the way in which the affairs of the Duchy can be arranged or dealt with in these circumstances.
Lord Trefgarne
Perhaps I should pick up the point that my noble and learned friend made about the princedom of Wales. Would it be in order for the sovereign to make their eldest daughter, the heir apparent, the Princess of Wales?
Lord Wallace of Tankerness
That would be a matter for the sovereign, just as the present Prince of Wales did not automatically become so on the accession of the Queen. I think he was created Prince of Wales in 1958 and that his investiture was some 11 years later. It would be a matter for Her Majesty and I do not think we should be presuming or prejudging this—and in future it would not necessarily be Her Majesty. This is obviously not going to happen at the moment, so it would be a matter not for our present Queen but for our future sovereign to determine.
With regard to the royal titles in Scotland, a number of contributors, not least my noble friend Lord Trefgarne, pointed out that the peerage rules in Scotland are somewhat more generous to women, in some cases anyway. It is certainly our view that in the event of an elder sister becoming heir apparent, the Scottish titles currently held by the Prince of Wales—namely, the Prince and Great Steward of Scotland, the Duke of Rothesay, the Earl of Carrick, Lord of the Isles and Baron of Renfrew—can pass automatically to a female heir apparent. These titles have always hung together and the removal of male bias in the line of succession could therefore not result in the detachment of these titles from the Crown. We have consulted the Court of the Lord Lyon, who is the official heraldry officer for Scotland, on this matter.
My noble friend also asked about the Duke of Edinburgh. The Duke of Edinburgh has a normal remainder to the heirs male of his body, but at the time of the marriage of the Earl of Wessex, it was announced that the Earl would eventually receive the title of Duke of Edinburgh. It is my understanding that there would probably have to be a creation of that; it would not automatically be inherited from his father. I say to my noble friend Lord Carlile that I will investigate further and write to him on the earldom of Merioneth.
This issue also gives rise to the question of hereditary peerages and a number of noble Lords contributed on this, some expressing concern and some hoping that this might indeed open the door to a change in the law. That just underlines the fact that it is not appropriate for this Bill. It goes much beyond the scope of it, although I do not for a moment minimise the importance of the issue. It would certainly not just be the Constitution Committee criticising us if we were suddenly to introduce in this Bill measures that were going to change the order of succession to peerages. My noble friend Lord Lucas reminded us, interestingly, that he inherited from his grandmother and mother but, as he pointed out, hereditary titles can very often go with financial interests and estates. These would not be issues to enter into lightly. As I indicated, they go beyond the scope of this Bill. I also remind your Lordships that even without this Bill, the rules of succession to the Crown already differ in most cases from the rules of succession to the peerage.
Clause 2 possibly generated the most concern and interest, not least because of what the implications would be if there is a marriage between an Anglican and a Roman Catholic. At the outset, let me say that it is important that we remove this element of discrimination, as a number of noble Lords who contributed to the debate made clear. This has been welcomed by both the Church of England and the Roman Catholic Church. I was particularly struck by the contribution of the noble Lord, Lord Janvrin, on the importance of the heir to the Throne being able to have a wider choice as to who may be their spouse. There was a sense of that around your Lordships’ House when he mentioned it. Given the particular challenges that go with the monarchy, I think that the noble Lord referred to the importance of lifetime love and support. That was a very poignant but relevant contribution to our debate.
As I indicated in my opening remarks, it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith. Catholic teaching is clear and perhaps more practical than has sometimes been suggested. The guidance is set out in Matrimonia Mixta, an apostolic letter from Pope Paul VI in 1970, and Pontificium Consilium ad Christianorum Unitatem Fovendam: Directory for the Application of Principles and Norms on Ecumenism, published in 1993. The guidance requires the Catholic partner in a mixed marriage to do their best to have the children raised as Catholics but if, as I indicated earlier, there is a just and reasonable cause which would qualify, such as the protection of the place of the Established Church, under those circumstances the local bishop can grant permission for the marriage. That moves us onto another issue, which I will come on to.
I also indicated that the Archbishop of Westminster has welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic. Indeed, in doing so, he recognised the importance of the position of the Established Church in protecting and fostering the role of faith in our society today. The noble Lords, Lord Luce and Lord Janvrin, echoed by the noble Lord, Lord Thomas of Swynnerton, asked whether it would be appropriate to have further discussions with the Roman Catholic Church. It is clear that there have already been discussions prior to this Bill but I will certainly try to ensure that officials meet representatives of the Catholic Church—indeed, I would be willing to meet them myself. I could not honestly predict the outcome but that suggestion seemed to command some support around the House. I would be willing to see whether that might produce anything that we could report back to the House at a future stage of our proceedings.
My noble friend Lord Lang of Monkton referred to my right honourable friend the Deputy Prime Minister regarding taking the matter to the Vatican. At Second Reading in the House of Commons, my right honourable friend said:
“I want to be clear that there is absolutely no prospect of our entering into discussions with the Vatican in order to bring this Bill into effect”.—[Official Report, Commons, 22/1/13; col. 215.]
The establishment of the Church of England has been a recurring matter that was raised in our debate. My noble friend Lord Maclennan and the noble Lord, Lord Dubs, said that it was an appropriate occasion to give that issue an airing. My noble friend Lord Deben indicated, with considerable passion, how he thinks that trying to address one anomaly while leaving another open is not acceptable. My noble friend Lord Astor raised this issue. I will come back to the Church of Scotland in a moment but my noble friend Lord Trefgarne got it right.
I got the impression that my noble friend Lord Lang was concerned that some of the provisions here might lead to disestablishment, whereas other contributors to the debate—indeed, the noble Lord, Lord Stevenson, did so from the Front Bench—were saying that perhaps this should be an incentive to get on and have that debate. Again, this issue goes beyond the Bill. We believe that nothing in the Bill detracts in any way from the sovereign swearing an oath to maintain the Protestant religion. The proposed changes are limited to removing a discriminatory bar on marrying a Roman Catholic. That would not allow a Roman Catholic to accede to the Throne but I suspect that, as the noble Lord, Lord Stevenson, indicated, this debate is not going to go away. However, I do not believe that this Bill is the appropriate place to deal with it.
The issue is that the Act of Settlement and the Accession Declaration Act, which was quoted by my noble friend Lord James, both make clear that the sovereign must be a Protestant, which of course George I was. The position in the Church of Scotland is that it is not an established church as such; the Queen is not the supreme governor of the Church of Scotland. The relationship between church and state is symbolised by the presence of the monarch or her Lord High Commissioner in attendance at the general assembly; indeed, my noble friend Lord Maclennan’s father was Lord High Commissioner, as several Members of your Lordships’ House have been. Although they are invited to address the assembly, they cannot intervene in its business.
As indicated, the oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian Government, but the Kirk has not been established by the state—I declare an interest as an elder of the Church of Scotland—and neither the Scottish Parliament nor the Westminster Parliament is involved in Kirk appointments. To that extent, it does not operate as a state church in the way that the Church of England does. I think that it was the noble Lord, Lord Stevenson, who pointed out that in matters of doctrine, government, discipline and worship, the Church of Scotland is free from state interference, operating under a constitution largely contained in articles declaratory that were recognised by Parliament in 1921. So there is quite a significant difference there, but I suspect that this is an issue to which we will return.
Lord Deben
Before my noble and learned friend sits down, is there not a terribly simple way out? That is, to say that there is no bar to any Catholic becoming King or Queen but, in the event of a new sovereign being unable to be in communion with the Church of England, a Regent would be appointed as supreme governor of the Church of England. That would help us should there be some other religion to which a sovereign might wish to belong. It would also get out of the way of this being a stitch-up between churches instead of being a proper decision by the individual concerned.
Lord Wallace of Tankerness
My Lords, my noble friend makes an important contribution to that debate. I hope that he will recognise that it would not be appropriate to open up that whole issue, not least given the conflicting views that we have heard in the course of your Lordships’ deliberations today, for the purposes of this piece of legislation. However, I have no doubt that, as the noble Lord, Lord Stevenson, indicated—indeed, the noble Lord, Lord Dubs, had a Private Member’s Bill on this subject at one point—this issue is not dealt with, nor do the Government believe that it should be. We believe in the maintenance of the established Church of England. It is an issue, though, and when that debate takes place my noble friend’s contribution will be an important one for people to consider.
Lord Forsyth of Drumlean
I thank my noble and learned friend for giving way. When he says that it is not an issue for this debate, surely the very reason why the prohibition on the heir to the Throne marrying a Catholic being removed is to end that discrimination. My noble friend Lord Deben’s suggestion of a regency would work with the way in which the Bill is presently constructed—that is, the heir to the Throne may be a Catholic but cannot be one. For those of us who do not wish to see the Church of England being anything other than the Established Church, this would be a way of removing the discrimination against Catholics. I have to say that we are not repealing the vile and offensive language, from our modern-day view, which is contained in the 18th-century statute and which causes great offence to Catholics throughout the United Kingdom. Would it not be sensible to consider my noble friend’s suggestion?
Lord Wallace of Tankerness
My Lords, I believe that this would go beyond the scope of the Bill. Something as profound as that could not be imported into the Bill without much further scrutiny and consideration. It is also important to remember that the provisions in the Bill removing an element of religious discrimination have been welcomed not just by the Church of England but by the Roman Catholic Church. I do not think that that is a stitch-up; it is a welcome recognition by both churches that this is an important change in our law. To go much wider than that, in fact, would require consideration that is not appropriate. We would be subjected to justified criticism if this were all rushed through as an amendment to the Bill in Committee, quite apart from all the implications for the other realms that have been so carefully consulted on over a long time.
Lord Maclennan of Rogart
Before my noble and learned friend leaves this matter, while recognising that the Bill may not be the right place to do what the noble Lord, Lord Deben, has suggested, could he at least indicate that the Government might put in train discussions about this with other realms in the Commonwealth and consider whether this would be an appropriate direction in which to move?
Lord Wallace of Tankerness
I am sorry to disappoint my noble friend, but the Government do not have plans to do that, although it is quite clear from the contributions to this debate that it is an issue. However, it is not the policy of the Government to go down that road; therefore, I regret not to be able to give a more accommodating answer to my noble friend.
With regard to the Royal Marriages Act 1772, my noble friend Lord Lang thinks six is too limited, but my noble friend Lord Carlile thinks six is too wide. I explained that if one looks at the 240 years of history since the Act was passed, Queen Victoria was the furthest away from the Throne at the time of her birth, at fifth. Therefore, six is a realistic number. I say to my noble friend Lord Carlile and other contributors that, unlike the consequence of the Royal Marriages Act, which is that the marriage is void, the consequence of marrying without consent under this Bill would be that one would drop out of the line of succession, so some of the convention issues that my noble friend mentioned are properly addressed.
My noble friend Lord Lang was concerned that the Bill might put the sovereign under some pressure about whether someone was an appropriate person to marry. That could be the case today. There is probably unlikely to be any pressure if the person is 710th or whatever in line to the Throne, but even today, the first six still require the sovereign’s consent to marry.
My noble friend Lord Trefgarne asked about judicial review. We do not believe that this could be reviewed. Although the decision would be taken on the advice of Ministers, it would be taken by the sovereign, and her decisions cannot be challenged in the courts.
My noble friends Lord Carlile and Lord Northbrook asked us to clarify the common law position with regard to the monarch’s consent. It is arguable that the common law no longer applies since it could be said that by legislating in 1772, Parliament has superseded the common law. The defects of the 1772 Act have frequently been pointed out, and the Government consider that there is a clear case for repealing and replacing it. A dowager queen is not in the line of succession, so the importance of royal consent is not as great as it is in the case of someone in the immediate line of succession. We do not see dealing with any possible surviving common law rules on consent as essential.
My noble friend made points about the Roman Catholic Relief Act 1829 that were picked up by my noble friend Lord Northbrook. It was argued that the Bill would allow a regent to be a Catholic. The effect of the Bill is not to make it possible for the regent to be a Catholic. Section 3 of the Regency Act provides that the regent is the person next in line of succession, if not disqualified, which a Catholic would be. A further disqualification is brought in under this Bill if a person in the first six in line of succession to the Throne marries without consent. That is the purpose of that clause.
My noble friend Lord Astor asked about the Channel Islands and the Isle of Man. Historians will argue about whether the dukedom of Normandy is still live, but there is no doubt that within the Channel Islands the Queen is heralded and treated as the Duke of Normandy. Nothing in the Bill would change that. The Channel Islands have been consulted on this. The Bill will apply by necessary implication to the Crown Dependencies and the British Overseas Territories, which have been fully informed and consulted on this matter.
Lord Lexden
Will my noble and learned friend say a word about the Lordship of Man, which I raised?
Lord Wallace of Tankerness
The position with the Lordship of Man is exactly the same. No change is anticipated. The Queen would continue to be the Lord of Man when she is in the Isle of Man. The removal of male bias has no implication for the title of Lord of Man.
In her opening remarks, the noble Baroness, Lady Hayter, said how much we look forward to the birth later this year of the child of Their Royal Highnesses the Duke and Duchess of Cambridge. She got the assent of the House when she said that she hoped that there would be no press harassment or intrusion. The change that we are putting forward will mean that if the Duke and Duchess of Cambridge have a daughter, then a son, the daughter will precede the son in the line of succession. As we look forward to the birth, we can also celebrate that whether a boy or a girl, the child will have equal claim to the Throne. I think it is the mood of the House to wish the Duke and Duchess of Cambridge every happiness as they face up to the challenge of parenthood, and I commend this Bill to the House.
Lord Wallace of Tankerness
My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.
Lord Trefgarne
My Lords, can I persuade my noble and learned friend not to press this Motion at this moment? I am not remotely trying to obstruct the progress of this measure, but I rather think that the Bill would be better considered in a Select Committee. If my noble and learned friend would be willing to put off pressing this Motion until, say, Monday, that would give us an opportunity to consider the possibility.
Lord Wallace of Tankerness
My Lords, we were given notice that my noble friend might raise this matter. We are going to make time available for proper consideration in Committee of the Bill and amendments that will be tabled to it. It has already, as was indicated, gone through the other place with more time allocated to it than proved necessary. As has been said by numerous contributors to the debate, there has been considerable dialogue, negotiation and discussion with the other realms. It has been carefully considered. I hope for and fully expect proper scrutiny when we move into Committee. I will certainly seek to ensure that the time is made available for that to happen.
I recognise the spirit in which my noble friend speaks. We can give the Bill sufficient scrutiny in a normal Committee.
Scotland Act 2012 (Consequential Provisions) Order 2013
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Lord Wallace of Tankerness
That the Grand Committee do report to the House that it has considered the Scotland Act 2012 (Consequential Provisions) Order 2013.
Relevant Documents:16th Report from the Joint Committee on Statutory Instruments
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Scotland Act 2012 makes provision for a new route of appeal to the Supreme Court for compatibility issues. As noble Lords may recall from our debates on the Scotland Bill, compatibility issues are questions raised in Scottish criminal proceedings about European Convention on Human Rights issues and European Union law issues. These would previously have been devolution issues. The Scotland Act 2012 also makes provision for compatibility issues to be referred to the Supreme Court in certain circumstances.
The draft order is made under Section 42 of the 2012 Act, which allows for provision to be made that is consequential on the Scotland Act 2012. The draft order makes consequential amendments to legislation to ensure that compatibility issues are properly taken account of in the criminal justice system. The draft order is subject to the affirmative resolution procedure because it makes amendments to an Act of the UK Parliament and an Act of the Scottish Parliament, and it is usual for such amendments to be subject to the affirmative procedure.
The draft order amends the Legal Aid (Scotland) Act 1986 to enable criminal legal aid to be provided in relation to compatibility issues. Section 21 sets out the meaning of “criminal legal aid” for the purposes of the Act and this includes appeals and references to the Supreme Court of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 21 so that criminal legal aid also includes appeals and references to the Supreme Court of compatibility issues.
Section 25AB of the Legal Aid (Scotland) Act 1986 makes provision for criminal legal aid in connection with appeals and references to the Supreme Court in respect of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 25AB so that it also makes provision for criminal legal aid in connection with references and appeals to the Supreme Court in respect of compatibility issues.
The draft order also amends the Criminal Justice and Licensing (Scotland) Act 2010. Sections 132 to 140 of this Act make provision for the disclosure of information by the prosecutor where a person convicted of an offence seeks to appeal against any aspect of that conviction. The draft order amends Section 132 so that the definition of appellate proceedings includes an appeal to the Supreme Court against the determination of a compatibility issue. This ensures that appeals in respect of compatibility issues will be treated in the same way as appeals of devolution issues in criminal proceedings for the purpose of disclosure of information by the prosecutor. The draft order, if approved by each House of Parliament, will come into force on 22 April 2013—the same day as the other orders relating to compatibility issues.
For completeness, it is perhaps worth mentioning that other consequential amendments are needed in relation to compatibility issues, but as these amend secondary legislation they are subject to the negative resolution procedure and are included in the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013. This order has been considered by the Joint Committee on Statutory Instruments, which made no comment on it.
Transitional provision—that is, provisions that are not included in the draft order that we are debating—has been made in respect of compatibility issues to ensure that the provisions of the 2012 Act take effect as quickly as possible. This will prevent two different criminal appeals systems operating in Scotland for a lengthy period and allow the benefits of the new system to take effect as quickly as possible. The transitional order achieves its aim by converting devolution issues relating to ECHR or EU matters in criminal proceedings that have been raised before 22 April 2103 into compatibility issues. The proceedings will then continue under the new compatibility issue procedure.
The Scotland Act 2012 also makes amendments that impose a time limit of 28 days on applying for permission to appeal a compatibility issue or a devolution issue in criminal proceedings to the Supreme Court. An application for permission must be made within 28 days of the date of the High Court’s determination. If that permission is refused, an application to the Supreme Court for permission must be made within 28 days of the High Court’s refusal. Both limits may be extended by the respective courts, where this is equitable given all the circumstances.
Again, transitional provisions—not included in this order—have been made in respect of existing devolution cases in criminal cases where there is a right of appeal. The time limit of 28 days will apply from 22 April this year, as opposed to the date on which the devolution issue was determined or when permission to appeal was refused.
This will also apply to devolutions that are converted into compatibility issues. The Government have been working closely with the Scottish Government in making arrangements for the commencement of these provisions in the 2012 Act. The Scottish Government have also discussed the arrangements with various bodies including the Supreme Court, the Crown Office, the Law Society of Scotland, the Faculty of Advocates, the Society of Solicitor Advocates and the Scottish Legal Aid Board. Both Governments are working together to publicise the transitional arrangements being made regarding compatibility issues and the changes made to the devolution issues by the Scotland Act 2012 so that practitioners are aware of these. I commend the order to the Committee and I beg to move.
Lord McAvoy
First, I thank the noble and learned Lord, Lord Wallace of Tankerness, for his very full explanation. I also thank the noble and learned Lord’s staff for their courtesy and co-operation. They are so polite that they even supplied me with questions to ask him. He has, however, dealt with these issues in his speech.
We support this continuing step on the path of devolution: it is a fine example of how the two Parliaments can work to make sure that devolution is furthered in a moderate, non-contentious way. I hope that continues and that comparatively small issues such as this order and the way it has been implemented will play a part in indicating to the people of Scotland that, when it comes to a referendum, they should vote very firmly to stay within the United Kingdom. I have nothing further to add, unless the noble and learned Lord’s staff have supplied him with questions to ask me. I thank all concerned for their courtesy.
Lord Wallace of Tankerness
I am grateful to the noble Lord and endorse his sentiments about the importance of showing how the two Parliaments and two Governments can work together in the interests of the people of Scotland.
Scotland Act 1998 (Modification of Schedule 5) Order 2013
Lord Wallace of Tankerness Excerpts(11 years, 6 months ago)
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Lord Wallace of Tankerness
That the draft order laid before the House on 22 October 2012 be approved.
Relevant documents: 9th Report from the Joint Committee on Statutory Instruments, 13th Report from the Secondary Legislation Scrutiny Committee, 7th Report from the Constitution Committee
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I beg to move that the draft order laid before the House on 22 October 2012 now be approved. I am grateful that we will have longer to debate the order than would normally be the case, which I think will be welcomed on all sides of the House. It certainly reflects the interest that noble Lords have shown in this order, not least the comments and contribution of your Lordships’ Constitution Committee whose report has made a very important contribution to the parliamentary process.
On 15 October last year, the Prime Minister, the First Minister of Scotland, the Deputy First Minister and the Secretary of State for Scotland signed an agreement on behalf of our respective Governments that will, if this order is approved by this House, allow a legal, fair and decisive referendum to take place on Scottish independence. I think it important that we acknowledge at the outset of this debate just how far we have come. Your Lordships have discussed and debated this and related issues on many occasions. We all recognise that we face perhaps the most important political choice that people have taken in Scotland in more than 300 years.
Calls for separation from the rest of the United Kingdom are not new, but the process that we are debating today began with the Scottish National Party’s victory in the May 2011 Scottish parliamentary elections and its manifesto pledge to hold an independence referendum. In May 2011, the Scottish Government claimed they had the right to bring forward legislation in the Scottish Parliament, without any role for this Parliament. The Scottish Government proposed the establishment of a separate Scottish Commission to oversee the process, and there was an expectation that there would be a multi-option referendum. Indeed, just 12 months ago, when the United Kingdom Government launched their consultation paper, that was very much still the case.
From the very beginning, this Government acknowledged the political mandate that the SNP had secured for a referendum. However, we also set out our very firm view that any referendum had to be legal, fair and decisive. As I set out to your Lordships just over a year ago, the Scotland Act 1998 is very clear: the Scottish Parliament cannot legislate on matters reserved to this Parliament. That includes “the constitution” and, specifically,
“the union of the Kingdoms of Scotland and England”.
That is why we published a consultation paper on 10 January 2012 which set out the different ways to deliver a legal referendum. Our consultation paper set out the available legislative options and stated that our preferred option was to provide the Scottish Parliament with the legal competence to legislate itself. This received the overwhelming support of those responding to our consultation. More than 70% of respondents agreed that the Scottish Parliament should be given that power. Your Lordships’ Constitution Committee in its first report on the referendum in February 2012 welcomed the proposal to use a Section 30 order to confer on the Scottish Parliament clear competence to legislate for the referendum.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend for giving way. On the point that 86% of the respondents supported the UK Government’s position, this position was that the referendum process should be looked after by the Electoral Commission. Why did the UK Government not insist on that being part of the Edinburgh agreement?
Lord Wallace of Tankerness
As I shall come on to explain, it is very much part of the Edinburgh agreement. The Electoral Commission is crucially and centrally involved in the oversight of this referendum.
Lord Cormack
I am most grateful to the Minister. According to the agreement, all the commission has to determine is whether the question is intelligible. It is not a matter of whether it is fair, or loaded, but whether it is understandable. Is that sufficient?
Lord Wallace of Tankerness
My Lords, the position is that the Referendum Question Assessment Guidelines published by the Electoral Commission in November 2009 set out its approach to reviewing questions for intelligibility. These guidelines state:
“A referendum question should present the options clearly, simply and neutrally. So it should: be easy to understand; be to the point; be unambiguous; avoid encouraging voters to consider one response more favourably than another; avoid misleading voters”.
That is the Electoral Commission’s guidance to the intelligibility question which my noble friend raised; those are the criteria I expect it to apply having regard to weighing up and assessing the question that has been submitted by the Scottish Government to the Electoral Commission. With regard to this question, we have sought to put the position of the role of the Electoral Commission and the role of the Scottish Parliament on exactly the same terms as would be the case if the United Kingdom Government were proposing a referendum, where we put the referendum to the Electoral Commission for its assessment on the same criteria. I will come on to that in a bit more detail in a moment. It will report to Parliament and ultimately Parliament will decide. We are seeking to put the Scottish Parliament in exactly the same position, vis-à-vis the question and the Electoral Commission, as the United Kingdom Parliament would be in any referendum which the United Kingdom Government were proposing.
Lord Foulkes of Cumnock
Would the Minister care to give his opinion about the question as currently proposed by the Scottish Government, which is,
“Do you agree that Scotland should be an independent country?”?
All the polling evidence, and one can consult MORI and others on this, shows that this kind of phraseology is biased and leads towards a particular outcome. It therefore fails the test on that basis.
Secondly, the Minister said that the referendum should be decisive. I am not clear what is meant by,
“Do you agree that Scotland should be an independent country?”.
It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my colleagues here, who think Scotland is currently an independent country in many senses. Is it not unintelligible, and therefore not decisive in any way?
Lord Wallace of Tankerness
My Lords, the key thing is that the Electoral Commission makes that judgment. I have heard the points made—with considerable conviction—by the noble Lord, Lord Foulkes, and others, but at the end of the day it is for the Electoral Commission to make that assessment. What it thinks about it, having done the testing on it, is far more important than what Ministers in the United Kingdom Government think.
Until relatively recently, I was the spokesperson for the Wales Office in your Lordships’ House and therefore during the referendum on the extension of powers for the Welsh Assembly. I could see at pretty close quarters the work done by the Electoral Commission in framing the question for that referendum—the noble Lord, Lord Wigley, will recall it. I was very impressed—not least because it faced the additional issue of the question being in Welsh as well as in English—by the thoroughness with which the Electoral Commission dealt with that. I was also impressed by the way in which my right honourable friend the then Secretary of State for Wales responded to the terms of the Electoral Commission’s report.
Lord Kakkar
Was it not the case both that the Electoral Commission looked at the specific question for that referendum and that legislation was brought before this Parliament? Therefore, this Parliament also had the opportunity to look at the question. The question for the referendum in Scotland will not be brought before this Parliament and we will not have an opportunity to look at it. Is it not still the responsibility of this Parliament to take care and to discharge its obligations to the citizens of the entire union?
Lord Wallace of Tankerness
The noble Lord is right about the Welsh referendum: the question was brought before this Parliament and was determined by it. However, as I sought to explain to my noble friends Lord Forsyth and Lord Cormack, this order seeks to put the Scottish Parliament in exactly the same position as this Parliament would be vis-à-vis a question for a United Kingdom referendum or a referendum that came under the responsibility of this Parliament. We want to put the Scottish Parliament in that position for the referendum on independence. If we are going to devolve power to do that, it is important that that is on the same basis as if this Parliament were responsible for the referendum. If this order is approved, it is up to the Scottish Parliament to make that judgment, and political consequences will flow from it if it is felt that the wrong judgment is made. We look forward with confidence to the Electoral Commission testing the question thoroughly—as it is indeed currently doing—and to make a report, and we will all be well aware of what the content of that report is. Perhaps I might make progress after I have answered the noble Lord, Lord Williamson.
Lord Williamson of Horton
I comprehend that point, but we have our own Constitution Committee, which has stated:
“We are concerned about whether a referendum on independence will be intelligible unless it specifies that the consequence of independence is Scotland leaving the United Kingdom”.
What comment does the Minister have to make on that point, which is the view of our Constitution Committee? I understand the point that he made about the responsibilities of the Scottish Parliament.
The Countess of Mar
My Lords, may I very courteously suggest to the House that we hear the Minister’s speech, and that we will all have time to add whatever we want afterwards and to ask him questions to which he can respond at the end of the debate?
Lord Wallace of Tankerness
I am grateful to the noble Countess and, in that spirit, I shall seek to answer questions afterwards. I have indicated what criteria the Electoral Commission uses in determining intelligibility. However, I think that many of us want to get on to actually debating the issues, because we have a responsibility, too, to deploy the arguments so that people are very clear about what the consequences would be.
Following the respective consultations of the United Kingdom and Scottish Governments, a period of discussions between Scotland’s two Governments led to the signing of the referendum agreement on 15 October. It is important that we recognise the significant achievement that this agreement represents: agreement to promote this order that we are debating today to ensure that the referendum is legal; agreement that the independent Electoral Commission should oversee the referendum to ensure that it is fair; and agreement to a single question on independence to ensure that the referendum is decisive.
I have said on a number of previous occasions that there is nothing worse than having a referendum that at the end of it one side or the other can call foul. I believe that the various strands that have been brought together to achieve the agreement will allow us to avoid that. They are a long way from where we were when this debate started in May 2011.
However, we also agreed another key point: once the fundamental requirements to ensure that the referendum is legal are established, fair and decisive, the responsibility for setting out the detail of the legislation should be for the Scottish Parliament. That is a fundamental point of principle on which I have already spoken and on which I will say more.
I will first take your Lordships through the order itself. It is made under Section 30(2) and (4) of the Scotland Act 1998. It inserts a new paragraph (5)(a) into Part 1 of Schedule 5 to the Scotland Act 1998. Part 1 provides, among other things, that the Union of the Kingdoms of Scotland and England is reserved to the United Kingdom Parliament. The new paragraph (5)(a) will ensure that the reservation does not apply to a referendum on independence, provided that it meets the requirements that are set out.
Those requirements are for a single ballot paper with a choice of two responses—in other words, a single question referendum on independence, to be held before the end of 2014, and without any other referendum provided for by an Act of the Scottish Parliament to be held on the same day. The order also makes provision in respect of public referendum broadcasts and free mailshots, which otherwise would be outwith the legislative competence of the Scottish Parliament.
Under the Political Parties, Elections and Referendums Act 2000, otherwise known as PPERA, referendum campaign broadcasts can be made only by or on behalf of a designated campaign organisation. The order applies this provision of PPERA to an independence referendum. This means that the restriction in PPERA as to who can make referendum broadcasts can apply to that referendum.
There are requirements on Ofcom and the BBC in relation to referendum broadcasts. The order provides that the definition of referendum campaign broadcasts includes independence referendum campaign broadcasts in certain circumstances so that the BBC, Ofcom and the Electoral Commission can have the same obligations and responsibilities in respect of the independence referendum campaign broadcasts as they would have in respect of any PPERA referendum broadcasts.
Under the 2000 Act, each designated campaign organisation can send a mailshot to every elector or household and is not required to pay the postage costs for this. This service is provided by the Royal Mail and the costs of this are recovered from the Consolidated Fund. This order applies these provisions in PPERA to an independence referendum. It specifically provides that the cost of the Royal Mail in providing this service will be recovered from the Scottish Ministers.
Therefore, the Section 30 order that we are debating today enables the Scottish Parliament to legislate for a legal referendum. The Scottish Parliament has already considered the order and approved it unanimously. Yesterday the order was debated in the House of Commons and approved without division, and if the order is approved by your Lordships’ House and then by the Privy Council, it will enable the Scottish Government to introduce a referendum Bill that sets out the wording of the question, the date of the referendum and the rules of the campaign for the Scottish Parliament to consider.
This devolution of power will ensure that the detail of the referendum process itself is made in Scotland by the Scottish Parliament. As I have already set out to your Lordships, this is a principle of importance to the devolution settlement. Once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the details of the legislation that follows. That is how devolution has operated since 1999 and this Government will continue to respect that.
The referendum agreement and the Section 30 order set out the framework for the referendum. They ensure that it is legal, capable of commanding the confidence of people from both sides of the debate and of producing a decisive result.
I will now say something about the detail of the memorandum of agreement that sits alongside the order. It is a statement of political intent by Scotland’s two Governments. It commits us jointly to an approach and delivery of the independence referendum that will ensure that the proceedings are fair and that the outcome is decisive.
At the heart of any referendum must lie a set of rules and processes that have the support of both sets of protagonists. For the outcome of any referendum to be legitimate and accepted, both sides of the argument must have faith in all aspects of the referendum. That is particularly true when we are considering the future of our nation. The agreement therefore sets out the commitment of both Governments to the normal rules and procedures that govern referendums in the UK as contained in PPERA.
A core part of the PPERA process is the central role of the Electoral Commission. The two Governments have agreed that the Electoral Commission must review the proposed referendum question and that its report will be laid before the Scottish Parliament, and that process is under way. It is worth reminding the House that since PPERA came into force there have been three referendums held under it: the north-east regional assembly referendum in 2004; the one to which I have already referred in Wales on further devolution in 2011; and the referendum on the voting system for the United Kingdom Parliament, also held in 2011. In all three cases, the Electoral Commission reviewed the Government’s proposed question and provided its advice, and the Government responded by revising the question in line with that advice.
Lord Foulkes of Cumnock
Will the Minister give way on that particular point?
Lord Wallace of Tankerness
No—as the noble Countess said, the noble Lord will have an opportunity later, and I will certainly respond. Well, if it is very quick, yes.
Lord Foulkes of Cumnock
Does this include whether money can come from overseas sources, as well as total expenditure?
Lord Wallace of Tankerness
When I respond to the debate I will give a more detailed response to that, but I think that those arrangements are already there under PPERA.
That is what happened in previous referendums such as the 2011 referendum in Wales on further powers for the Welsh Assembly. In that referendum, the Electoral Commission recommended that the spending limit for designated campaign organisations should be set by reference to the expenditure limits that applied to elections to the relevant legislature. In its response to both Governments’ consultation documents, the Electoral Commission provided its view that the model remains appropriate for the Scottish independence referendum.
The Electoral Commission has also met the parties represented in the Scottish Parliament to seek their views on the financial arrangements. When the Scottish Government set out their final proposals for financing the referendum campaign in their Bill, they must set themselves aside from their own campaigning interests and recognise that their approach is being watched by all of Scotland, and indeed by the wider international community. This is a point which the Deputy First Minister, Nicola Sturgeon, herself recognised when she said that the poll must satisfy the highest standards. It is only right that we use the bar that she has set to determine whether what is proposed is appropriate.
Both Governments agree that the basis for the franchise will be that for the Scottish Parliament elections —that is, those UK or EU citizens who are resident in Scotland. Again, that is set out in the agreement.
In addition, the Scottish Government propose to give 16 and 17 year-olds the right to vote. I recognise and very much respect the fact that there are differing views on this issue in this Parliament and in this House. My party, the Liberal Democrats, supports the principle of 16 and 17 year-olds participating in all elections; our coalition partners do not. Indeed, there are views on both sides of the Chamber on that issue. However, in devolving the power to hold the referendum, we respect that this is a matter which should be debated and determined by the Scottish Parliament.
Indeed, where the Scottish Government and Parliament have the power to hold referendums and elections already, they have chosen to allow some 16 and 17 year-olds to vote. However, the Scottish Parliament’s decision with respect to health board elections and Crofting Commission elections in Scotland has set no precedent for any elections for which the United Kingdom Government and Parliament are responsible.
I fully expect the Scottish Government’s proposals to be debated robustly in the Scottish Parliament. It will be for the Scottish Government to make their case for this proposal and to deal with the issues that arise.
I can make it equally clear that any decision taken by the Scottish Parliament for the referendum will not affect the voting age for parliamentary and local government elections in the United Kingdom. That remains the responsibility of this Parliament alone to determine.
I turn to an issue which has attracted comment, particularly from the Scottish Government. The concluding paragraph of the Edinburgh agreement contains a commitment by both Governments to hold a referendum that is legal, fair and decisive. It is fair to say that there have been some creative interpretations of that paragraph in recent times, so I want to take the opportunity to restate its clear and very obvious meaning. Perhaps it is worth reminding the House what it actually says:
“The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum which is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”
This means that the two Governments will conduct the referendum on the same constructive terms as they work on today. It means that if the referendum follows the path set out in the order and agreement, its outcome will be decisive. It means also that, regardless of what the result is, that constructive relationship should continue as we move forward. I believe that that is good practice and common sense. Paragraph 30 is a statement of our determination to hold a referendum that is legal, fair and decisive. However, it does not and cannot be interpreted in a way that pre-empts the implications of that vote. It is important that everyone is very clear about that reality.
Scotland’s future within the United Kingdom will be the most important decision we in Scotland take in our lifetime. Facilitating a legal, fair and decisive referendum is critical. That is why we consulted on this issue. That is why both the Scottish Government and the United Kingdom Government spent many hours discussing and negotiating the process. That is why we seek the support of the House today to approve this order.
Debating this order in this House today marks an important step as we move from discussions on process to what many of us want to do—get to the substance of the debate. It is essential that the referendum decision is focused on determining whether Scotland chooses to remain an integral part of the most successful partnership of nations that this world has ever seen and to remain part of a family of nations that works in the interests of all, or whether Scotland wishes to separate and go it alone.
That is not a decision that should be taken lightly; it should be taken after examination of the facts. I strongly believe that, with the support of colleagues across the House, across Scotland and across the whole of the United Kingdom, fellow Scots will join me in autumn 2014 in choosing to stay part of this very valued United Kingdom. I believe that we are indeed better together. In the mean time, I commend this order to the House.
Amendment to the Motion
Lord Forsyth of Drumlean
I have considerable respect for the noble Lord. Of course I take his point, but what conceivable reason could Alex Salmond have for not agreeing, along with the other parties, that the Electoral Commission’s advice should be followed unless it was that he wanted to rig the question? The noble Lord says, “Ah, but there will be a political price”, but shall we spend the rest of the referendum campaign saying, “Ah, but the question is unfair”? What happens if we win or lose by a tiny margin? There will be arguments forever after about whether it was a fairly conducted referendum campaign. That is why we need to lance this boil at an early stage. It is no good setting off from the starting line and throughout the race saying, “By the way, this is not a fair race”. We have to win this race if we are to save the United Kingdom.
Just in case the noble Lord thinks that I am being partisan, I should say that I was quite struck during the debate on the order in the other place by what Mr Alistair Darling, the Member for Edinburgh South West, who is playing such a fantastic role in leading the campaign for the union in Scotland, said about passing responsibilities to the Scottish Parliament. He said:
“There is absolutely nothing wrong in that”.
However, he went on to say:
“In practice, the transfer is not just to the Scottish Parliament but to the SNP, which runs the thing as a pretty tight ship—opposition is not usually tolerated—and not just to the SNP, because, as we know, the SNP is very much run by one individual. We need to be aware that that is what we are doing”.
It is absolutely essential that we understand that. Talking about the Edinburgh agreement, he said:
“That suggests that both parties were clear that the Electoral Commission’s role was impartial and that there was an assumption that they would accept whatever it proposes. It is, therefore, disappointing that before the ink was dry on the signatures, we heard from senior members of the SNP that the Electoral Commission could say what it wanted, but it would ultimately be the SNP’s call. That would be unfortunate, in relation to both the wording of the question and the spending limits”.—[Official Report, Commons, 15/1/13; cols. 762 and 764.]
The only thing in that with which I would argue is the use of the word “unfortunate”, for which I would substitute “disastrous”.
There is within elements of the Government and elements of the unionist campaign a creeping complacency which I find really worrying. I keep hearing people saying, “Oh, there is only 33% support for independence”. I ask them to have a look at Quebec. In the referendum for secession there, the position started off with 70% to 75% opposed to secession; in fact, it was 67:33—almost exactly where we are now. By the end of the referendum campaign, the vote against was won by 0.6%. Let us not be cavalier in giving away things that could make all the difference, such as the weighting of the question and the ability of people to get their messages out at this stage.
I point out to my noble and learned friend the causal way in which the Government regard the extension by the Scottish Parliament of the franchise to 16 and 17 year-olds, with all the implications that that will have. I do not have a particularly strong view—actually, I do have a strong view. I do not think that 16 and 17 year-olds should have the vote, but I am open to persuasion. However, what I cannot be persuaded of is that they should have the vote for some elections but not for others. Frankly, saying that the Scottish Parliament has given them elections for the Crofters Commission and that that somehow indicates that there is no precedent for the United Kingdom is an argument of a quality to which I hope the noble and learned Lord will not stoop when he is defending me.
We are suggesting that people in Scotland should not be able to buy a packet of fags or, as someone said in the other place, a packet of sparklers, or a drink in the pub, but that they can decide the future of the United Kingdom. We are suggesting that all of this can be done on the basis of what Alex Salmond decides when he gets out of bed in the morning. This is utterly frightening. If ever there was an example of the tail wagging the dog, then this is it. The franchise should be a UK matter.
My noble and learned friend, in echoing the Secretary of State, is talking nonsense when he expounds this view of devolution. The Secretary of State for Scotland said of the order:
“This devolution of power will ensure that the details of the referendum process itself are made in Scotland, in the Scottish Parliament. That is a principle of great importance to the devolution settlement. Furthermore, the approach here respects another key feature of devolution—namely, that once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the details of the legislation that follows”.—[Official Report, Commons, 15/1/13; col. 745.]
That last is a point made by my noble and learned friend. This is not about devolution. The future of the United Kingdom is not a devolved matter; it is for the United Kingdom. It is true that the United Kingdom Government have decided to amend and use the powers in the Scotland Act to overturn the limitation in order to give the Scottish Parliament that power. I do not have a problem with that, provided that we know what we are getting ourselves into. I believe that we are at risk, given the way in which we are proceeding and the trust that we are putting in Alex Salmond. It is a bit like putting the fox in charge of the chicken coop and arguing that the chickens will protest if it all goes wrong.
The Scottish Government, simply in any fairness, cannot be a participant and the referee at the same time, especially given that this First Minister has form. He was caught out telling porkies about whether he had had advice on whether we would have to rejoin the European Union if we were independent. He spent taxpayers’ money on preventing people getting, under freedom of information legislation, the facts, which turned out to be that what he had said was not true at all. He has already had a red card. I think that we should be concerned about trust.
Another point on the uncertainties that remain is about the timetable. It is absolutely ridiculous that we do not know the date of the referendum. It has to be by 2014, but everyone says that having to wait until 2014 will be hugely damaging to the Scottish economy and hugely damaging to business, will create enormous uncertainty and will bore us all to death, because we will be talking about this for far too long. We need to get on with it.
My noble and learned friend said that he was anxious to avoid talking about process and to get on with the arguments. If he is anxious to get on with the arguments, why on earth are we leaving these issues of process—the question and the rules of the referendum—open to more and more argument over a longer period? The Scottish Government are not even proposing to publish their White Paper until the end of the year—and presumably the Bill will be published after that—so we will be focusing on process because these matters have not been addressed.
Of course, the First Minister agrees with the Electoral Commission that the Scottish Government will need to be in purdah for only four weeks before the referendum. Given the disgraceful and partisan way in which the Permanent Secretary in the Scottish Office has behaved, and given the way in which Alex Salmond clearly is using his role in the Scottish Government to pursue a political agenda, I think that four weeks is far too short a time.
My noble and learned friend is right to say that we need to resolve these matters and get on with discussing the issues. I have to say to him that the UK Government have got some questions to answer as well. We cannot go on with a situation where, for example, the Ministry of Defence is saying, “No, we are not making any contingency plans as to what to do about the Trident nuclear deterrent if Scotland becomes independent and the SNP keeps its commitment to throw the nuclear weapons out of Scotland. We are not doing anything because we do not think that it is going to happen”. That is not good enough. The department should be setting out what the consequences would be in terms of the jobs lost—around 10,000 in Scotland—what the cost to the English taxpayer would be and what the future of our deterrent would be. That applies to every single government department. They should stop sitting there thinking that it is not going to happen. We have a duty to ensure that the voters know exactly what the consequences of voting for independence would be.
The SNP has a role, too. It needs to make its case. It is extraordinary that we will have to wait until the end of the year to hear how the proposal will work. It has had about 30 years to think about it.
Lord Stephen
My Lords, I start by agreeing with the noble Lord on that issue of service men and women of the United Kingdom, and of Scotland, who should have the opportunity to vote in this referendum. The issue was raised yesterday in the other place in many good speeches on this Section 30 Motion. I listened to a great deal of that debate yesterday, and although there was full cross-party consensus on the approval of the Motion, there was also, outside the nationalists, cross-party concern. That concern is shared by me and by my noble friend Lord Forsyth, as reflected forcefully in his remarks this afternoon, and clearly in the terms of his two amendments. Before focusing on that concern, we should recognise the good points of what has been achieved and of this Motion.
Michael Moore, as Secretary of State for Scotland, and the Prime Minister deserve great credit for delivering the Edinburgh agreement. Michael Moore skilfully negotiated, no doubt with the support of my noble and learned friend the Advocate-General for Scotland, an agreement that all sides agree is a good start, and a good way forward. It has been agreed by the Prime Minister, the Scottish Secretary, the First Minister and the Deputy First Minister that it is central to the principles underpinning this referendum that it should be legal, decisive and fair.
Let us take those tests in turn. First, it will now be legal, by the securing today of this Section 30 Motion and its approval under the terms of the Scotland Act 1998. In my view it was pretty clear, but some would say that it was a matter of doubt whether the Scottish Parliament had the legal powers to hold a referendum on independence. It is clear that those powers had not been devolved to the Scottish Parliament and that doubt will be removed today by the passing of this order. That is good. Secondly, as has been mentioned by others, it will now be a decisive referendum. There will be one question only. Despite the views, interestingly, of his party, which wanted one question, the First Minister wanted two questions. Clearly, he wanted an escape route. He wanted the cover and protection of a second question on more powers for the Scottish Parliament, but that emergency exit is now being removed. There will be a simple yes/no question, which means that the decision will be clear cut. That is also good news.
We then come to the third issue about fairness, on which I want to spend a little time. It has been covered pretty fully already, but it is vital that the referendum is fair if it is to command respect. We already know the SNP-preferred referendum question. We know the question that the Government in Scotland want to ask and it is not fair; it is a biased question. My noble friend Lord Forsyth helpfully quotes it in his amendment, which asks:
“Do you agree that Scotland should be an independent country?”.
That is a rigged question on at least two grounds. I am not a great expert on these psephological matters but those who are explain that if you ask people to agree with you—do you like my tie, do you like my new haircut, do you like whatever principle—they will tend to agree in response.
Lord Stephen
Indeed. Those who know about these matters say that is the first element of rigging of the question. Secondly, and on this I am more familiar because it is surely a matter of law, and of international law at that, is the issue of whether you want Scotland to be an independent country. The correct question, I am told, is whether it should be an independent or a separate state. That is not the wording that the SNP proposes. Scotland is already a country; some people in this Chamber who are fierce unionists have already said they believe it is an independent country.
I am very pleased that the Edinburgh agreement sets out that the conduct of the referendum is to be overseen by the UK Electoral Commission—not a separate Scottish body—which is seen to be fair and objective and neutral. That is wholly good news. I was also greatly encouraged when I saw John McCormick, who many people in this Chamber will know is the Electoral Commissioner for Scotland, being interviewed on this issue by the BBC. He said that it was crucial that the question put to voters was clear, simple and neutral and went on to say, very importantly, that in his view the question was the foundation—the bedrock —on which this referendum would be built. If it was flawed or biased, the whole process would be flawed and biased. I agree with him completely. I do not agree with those who say the question does not really matter and that by voting day everyone will be pretty much clear on what the referendum is about—being in or out of the United Kingdom. It is important that the question is fair and commands respect on all sides from the start.
Some say it would make only a small difference, of maybe 2% or 3% either way. My noble friend Lord Forsyth has referred to the situation in Quebec. Some are saying it would be more than that, some less. Percentages are a curious thing, are they not? If British Airways downgraded its expectations of successful landings at Heathrow by 2% or 3%, international air travel would be killed overnight. If a casino said that a roulette wheel had a built-in bias in its favour of 2% or 3%, I dare say that many gamblers might still take the chance. We should not be gambling, however, with our nation’s future.
Finally, there is the issue of who decides in all of this. Is it the Electoral Commission? No, it is quite clearly the SNP, the Scottish Government and the Scottish Parliament that will decide the question. Can we trust the SNP on this issue? Well, no, because although it is both the player and the referee, it has made clear that the recommendations of the Electoral Commission are not binding on the Scottish Government and Parliament. Angus Robertson, in the House of Commons yesterday, and Alex Salmond, the First Minister, on Radio 4 this morning, have been given ample opportunity to make it clear, as the other leaders in the Scottish Parliament have done, that they would accept the views of the Electoral Commission on this crucial issue of bias and of avoiding anything other than an objective, neutral and fair question.
They have a mantra now, to get them out of the difficult question. The Electoral Commission will advise, says the First Minister. The Scottish Government will recommend and the Scottish Parliament will decide. Of course, as has been said, they have form on these issues of fairness, honesty and integrity—the very recent form that has been referred to, when the First Minister failed to tell Andrew Neil of the BBC the truth about whether he had taken legal advice on Scotland’s EU membership and the Scottish Government then used taxpayers’ money in the courts to resist revealing legal advice that the Scottish Government had never taken. That is the sort of “Alex in Wonderland”, topsy-turvy situation that we are dealing with. There is no honesty, integrity and consistency in a position such as that.
However, there is a deeply serious and worrying point. If this referendum is not based on a neutral question, it will be biased; if it is biased, it will not be fair; and if it is not fair, that will be a breach of the Edinburgh agreement to be “legal”, “fair” and “decisive”. In my view, we will then have a serious constitutional crisis. I trust that can be avoided and that the First Minister can rise above narrow partisanship and set a tone for this referendum that will command all-party respect right across the whole of Scotland and of the United Kingdom. On that basis, we should pass the Motion today, but remain fiercely, ferociously and for ever vigilant about the dangers that lie ahead, which could have such profound implications for both Scotland and the whole of the United Kingdom if some of the fears mentioned today come to pass.
The Duke of Montrose
My Lords, I would like to touch on three points, first on process, then on content and finally on effect. I want to go back a bit further than we have done so far this afternoon. Today we are dealing with one of the myriad Henry VIII powers that are contained in the Scotland Act. As your Lordships will know, the Act itself was almost exclusively the product of an ad hoc body that called itself the Scottish Constitutional Convention. The fact that it contains so many Henry VIII powers, it seems to me, was the product of an approach that said, “We don’t really know what we eventually want, but let’s make a start and then we can see how it works as we go along”. So far, the Library tells me, Governments of whatever persuasion have been able to unearth 31 powers in the Act and pass 194 amendments to Schedule 5.
Given the state of politics in Scotland, contrary to the expectations of all the wise constitutionalists who set things in motion, the Scottish Nationalists have achieved such an overall majority that the need for a referendum on independence has developed a certain urgency. That need is to determine what the true convictions of the Scottish people are.
The power contained in Section 30(2) is possibly the most far-reaching in the Act. As was pointed out in the report of your Lordships’ Constitution Committee, as we heard earlier, this power has already been used 10 times for things that varied from equality and human rights to the railways. As the noble Lord, Lord Crickhowell, said, the committee also commented that the use of,
“the section 30 route significantly curtails the opportunity of the UK Parliament to have an effective input into the process”.
Today we are asked to pass this outwardly fairly simple order. Noble Lords will notice that it shares one outstanding feature with the Scotland Act 2012. Both are remarkable for what they do not say. This time we have got rather more in the memorandum of agreement, but here we are being asked to pass measures that are not even as yet in secondary legislation. Noble Lords have touched on reducing the voting age to 16, an issue that is bound to have repercussions on all elections that take place in the UK, whatever anyone likes to say. In fact a Bill has been tabled in this House by the noble Lord, Lord Tyler, who I see is not in his place, when we will be able to look at this issue in the round. Here the issue is tucked away in a memorandum of agreement and we will not spend much time considering it.
The fact that we now find ourselves in a country with a devolved franchise, which is nominally giving restricted powers to other parts of the United Kingdom, appears to mean that the sovereignty of the Westminster Parliament can no longer be adhered to. We get framework orders such as this that are merely to approve powers that the Government have already assumed for themselves. Perhaps the Minister would like to comment on the Government’s statement in answer to one of Monday’s amendments to the Electoral Registration and Administration Bill. The amendment asked that the Secretary of State should be able to alter the franchise for elections by secondary legislation. The Minister said that they,
“believe that the franchise for UK elections should remain set out in primary legislation. It would be very unusual to provide for a change to the franchise in secondary legislation”.—[Official Report, 14/1/13; col. 489.]
What about memorandums of agreement? The agreement is such that we have a considerable—
Lord Wallace of Tankerness
Rather than allow a misunderstanding to continue, a memorandum of agreement does not change the franchise for the Scottish election. If it were to be changed, that would have to be done by means of primary legislation in the Scottish Parliament. Every referendum has its own franchise. The consequence of passing this order is that the franchise would be determined by the Scottish Parliament. There is an agreement that it should first and foremost be the franchise for Scottish elections and local elections. If the Scottish Government wish to extend it to 16 and 17 year-olds, that will require primary legislation in the Scottish Parliament.
The Duke of Montrose
I thank my noble and learned friend for that clarification but the underlying issue still bears consideration. On independence, I think that what we are faced with is that some regard Scottish history as having been a wasted opportunity either after Flodden in 1513 or after the Darien scheme in 1698, and they wish to wipe the record clean and begin again with a new and enlightened polity—centuries of Scottish toil brushed carelessly aside.
We can all see that in the intervening period there have been some remarkable individual Scots whose lives have marked moments of great progress for mankind, including Adam Smith, the framers of the United States constitution and David Livingstone. They can all stand on their own merit but in some ways, backing up the remarks made by the noble Lord, Lord McConnell of Glenscorrodale, when we begin to consider what Scotland’s contribution has been in the wider world, the vast bulk of it has been achieved within the union that is the United Kingdom.
Of course, as we contemplate the accumulation of events—the noble Lord, Lord Reid of Cardowan, raised the same issue—we are now learning that perhaps some of the elements were far from activities of which we should be proud. Overall, though, I maintain that Scotland has much to show for those years, and it is not something that can be easily shrugged off in a moment of enthusiasm for whatever appears new.
The nature of Scotland is such that big opportunities generally have been seen in the wider world outside. We can all see that independence can have a great attraction to the stay-at-home Scots, as long as Alex Salmond can continue to pull in sufficient funds to maintain the level of what we have come to regard as our inalienable rights. However, what can a vote for independence offer to our young people who are pursuing a career path in the corridors of power or in more widespread and influential businesses and marketplaces, or those who wish to establish businesses there? Will they not have to accept that they will be even more regarded as non-nationals in their place of work and increasingly unable to have a vote and influence in what is still their home?
Lord Kerr of Kinlochard
That is where I was going, although I would like to hear the Minister’s answer to my question on how one reads paragraphs 8 and 12 together.
Lord Wallace of Tankerness
I wonder whether it would be helpful to do so now, as it has been raised. The word “intelligibility” is used because Section 104(2) of the Political Parties, Elections and Referendums Act 2000, passed by this Parliament, states, in relation to a referendum question, that the Electoral Commission,
“shall consider the wording of the referendum question, and shall publish a statement of any views of the Commission as to the intelligibility of that question”.
That is why the word, “intelligibility” has been taken from the statute and put into the memorandum. As the noble Lord rightly points out, the Electoral Commission set out in its 2009 guidance and guidelines, which I quoted when moving the Motion, how it intends to go about determining intelligibility. I hope that that clarifies why the word was used. The other matters to which the noble Lord referred, such as ease of understanding, lack of ambiguity and avoiding misleading voters, are part of the criteria that the Electoral Commission has indicated that it applies when undertaking the word, “intelligibility” in statute.
Lord Kerr of Kinlochard
I am grateful to the Minister and in some way reassured. It seems to me that we need to keep a close eye on this issue. I strongly agree with the challenge raised by the noble Lord, Lord Sutherland, but I think in his normal, consensual, non-polemical way, the noble Lord, Lord Reid of Cardowan, got it absolutely right. There may be a fox around, but the Scots are not chickens. They are not stupid. If there is an attempt to rig the question, and the advice from the Electoral Commission, speaking to its remit as described by the Minister, is dodged or not responded to positively, it would be a considerable down side with the electorate in Scotland. The question of the question is very important, but let us not exaggerate it. If it is not a straight question the Scots are even more likely to give it a very straight answer.
Lord McAvoy
My Lords, this has been quite a lengthy debate. Nevertheless, the contributions have been very weighty; there is much knowledge and wisdom in this House. I would like to draw your Lordships’ House back to why we are here. We are here because the Scottish National Party won an electoral mandate at the previous Scottish parliamentary election. I do not like it but I accept the result. It has the right to support and advocate a referendum. We in the Labour Party support this order and hope to get into the debate as soon as possible, rather than be distracted by the many issues that have been raised today.
The noble Duke, the Duke of Montrose, mentioned an ad hoc organisation that advocated devolution. The Labour Party, the Liberal Democrat Party, and almost the whole of civic Scotland joined that ad hoc organisation. The difference between what happened then and what is happening now is that there was a broad consensus throughout Scotland about the need for a Scottish Parliament. The Labour Party supported that and, with the help of the Liberals and others, we brought about devolution and the installation of a Scottish Parliament. As soon as you devolve power to the Scottish Parliament, that power is there and it would be foolish to argue and quibble about this and that when it clearly has a mandate and the democratic right to do what they are doing, within generally accepted conventions.
A number of your Lordships have mentioned, quite rightly, the flaws within the deal that came about between the Prime Minister and the First Minister. We feel that one or two things could have been negotiated a bit more firmly. Having said that, the deal has been made, that is what we have, and we should move on from that. Nevertheless, we should note some points. For instance, the Scottish Affairs Committee quite rightly said in its report last week that decisions in the Scottish Parliament should be achieved by consensus and not simply through the use of the SNP’s majority. I keep hearing the phrase “gold standard”. The consensus that we achieved in the 1980s over the issue of the governance of Scotland should surely be the gold standard. I do not want to denigrate anyone’s personality on this, because that is a distraction that will only damage the cause of those of us who support the union.
There are a lot of issues, such as that of granting votes to 16 and 17 year-olds. The Scottish Parliament has the power to do that. There should be a debate about it, but it should not be an issue that prevents or distracts us from scrutinising this order.
On campaign finance and the wording of the question, the key phrase should be that the Scottish Government cannot be the referee and a player. Surely the Electoral Commission will act as an independent overseer of that process?
The point so ably made by my noble friend Lord Reid of Cardowan is that the Scottish people are not exactly backward at coming forward. I do not think we will be easily fooled; we will spot any chicanery or jiggery-pokery that may come from any party during this process. Sometimes, we in the political world can underestimate the acumen of the public, who keep an eye on politicians.
The wording of the question should be clear, unambiguous and thoroughly tested by the Electoral Commission. Like others, I should like to see the Scottish National Party commit itself to accepting the decision of the Electoral Commission vis-à-vis the wording. The noble Lord, Lord Empey, and other noble Lords who mentioned this were right: if we have bitter disputes over this, the bitterness will continue and the result will not be regarded as legitimate. It is absolutely essential that we get legitimacy for that result, whatever it is, and that it should be accepted by all.
A number of your Lordships have rightly mentioned the quality of the contribution and amendments of the noble Lord, Lord Forsyth. A number of my colleagues have stated they agree with much of his position. As I am a bit of a bureaucrat, one of the things I am concerned about is the practicality of the timeline. It is clear that, although October 2014 seems a long time away, the processes that need to be gone through before then are nevertheless considerable and time-consuming. If any of these timeline targets are not met, the process will be delayed, which would be dangerous. It will seem that obstruction by Westminster has caused the delay, which would be fatal to the cause of those of us who support the union.
Devolution means devolution. I am afraid that is sometimes hard to accept and something that we do not like. The Scottish people decided that they wanted devolution. I accept it, and it should be accepted.
My noble friend Lady Liddell made the point—far better than I am making it so far—by warning that we should not allow ourselves to be distracted by all the niggly points that have annoyed us. We have picked fault here and picked fault there. I do not say that the niggles, doubts and criticisms are not justified, but let us solve them; let us deal with them, get them out of the way and get on with campaigning. The people of Scotland are looking for a campaign where the issues are discussed, not individual personalities. We can then go to the real core of what would happen to Scotland if it separated from the rest of the United Kingdom. I do not mean that as a negative point or to frighten the people of Scotland by saying that Scotland cannot or would not exist without the rest of the United Kingdom. Of course we could: we could be economically viable and we could be a separate state. But we should say to people that we do not want to be separate—to separate from England, Wales and Northern Ireland, a union that has served us all well, especially in two world wars.
Again, I echo my noble friend Baroness Liddell. Let us get these issues dealt with. Yes, let us deal with them and debate them, but the sooner we get on to this campaign the better.
Lord Wallace of Tankerness
My Lords, I thank all those who have taken part in this debate. I thank also my noble friend Lord Forsyth for moving his amendment which has stimulated so much debate, although I suspect that, even without it, we would have had a considerable debate on the issue. I understand from my noble friend Lady Garden that there have been some 20 contributions, including an Englishman, a Welshman, a Northern Irishman and, regrettably, only one woman.
Lord Wallace of Tankerness
I offer my sincere apologies to my noble friend Lord Crickhowell. It has been a very passionate debate. As the noble Lord, Lord McAvoy, said, this is not necessarily where we want to be. I do not think that anyone here has advocated a referendum or, certainly, independence. Nevertheless, we recognise and respect the outcome of the Scottish election of May 2011 and the manifesto commitment of the Scottish National Party to have a referendum.
I welcome the fact that the noble Lord, Lord Browne, supported the view that the process was being done properly. I thank my noble friend Lord Crickhowell as a member of the Constitution Committee for his contribution. I am grateful not just for the most recent report of that committee on this matter but for the report which the committee produced in February last year following the consultation which the United Kingdom Government launched. In that report, the Constitution Committee welcomed the proposal,
“that a section 30 order be made to confer on the Scottish Parliament clear competence to legislate for a referendum on Scottish independence”.
From that flow a number of the issues which have been dealt with in this debate. It is also fair to point out that, in its most recent report on the referendum, the committee stated:
“We welcome the fact that the Agreement reached between the two Governments accords with our previous recommendations. The question of legislative competence is addressed, it is intended that the referendum will pose a single question on independence, and the Electoral Commission will play the lead role in advising on the referendum”.
That is why I cannot accept the argument that the outcome of the negotiations was weak, as it has been described by some noble Lords. As the Scottish Affairs Select Committee in the House of Commons said:
“The Secretary of State and his team are to be congratulated on their willingness to compromise and reach a consensus with the Scottish Government so that the referendum can be held on a basis to which all can consent”.
The noble Lord, Lord McConnell, mentioned the evidence that he gave to both the United Kingdom Government’s consultation and the Scottish Government’s consultation, where he said:
“I hope that both the Scottish Government and the UK Government will be willing to compromise on all of the key issues to ensure we have a clear outcome in a referendum and an outcome that is accepted by everyone as the fair result of a fair campaign”.
That is what we sought to do.
The noble Lord, Lord Reid, said, quite fairly, that of huge significance was the fact that it was a single question. I would certainly find myself in some difficulty if I was to come before the House today trying to defend an order or a process that had led to an outcome where there could be more than one question—the so-called multi-option referendum. As the noble Lord rightly said, there is a world of difference between a referendum where one part of the United Kingdom wishes to secede from the United Kingdom, which is a matter, as successive Governments have accepted, for that part of the United Kingdom, and one where there is to be a different relationship within the United Kingdom, with further powers being devolved. That is an important distinction and it is why I am very glad indeed that what we bring before the House today is an order which will provide for a single-question referendum.
It is inevitable in these circumstances that we come to the role of the Electoral Commission. The noble Lord, Lord Kerr, asked about the wording in paragraph 8 of the agreement, which contains the reference to “intelligibility”. I hope that I indicated why that word was used—it is a statutory word, if you like—but of equal importance is the way in which that has been interpreted by the Electoral Commission. Mr John McCormick, who is the Electoral Commissioner for Scotland, said on 9 November, when the Scottish Government submitted their question:
“We will assess the referendum question to see whether voters find it clear, simple and neutral. If it isn’t, we’ll say what needs to be done”.
I shall come to the issue of the question in a moment, because the other issue, as my noble friend Lord Crickhowell said, is the role of the Electoral Commission. Paragraph 12 of the agreement, also referred to by the noble Lord, Lord Kerr, sets out the role of the Electoral Commission in referendums. It states:
“Both governments agree on the importance of the referendum being overseen in an impartial way by bodies that can command the confidence of both sides of the campaign. The Electoral Commission is responsible for overseeing referendums held under PPERA. PPERA gives the Electoral Commission responsibility for: commenting on the wording of the referendum question; registration of campaigners; designating lead campaign organisations; regulating campaign spending and donations; giving grants to lead campaign organisations; publishing guidance for permitted participants; reporting on the referendum process; the conduct of the poll; and the announcement of the result”.
Paragraph 14 of the agreement states:
“Both governments agree that the Electoral Commission should fulfil all these functions in respect of the independence referendum, with the exception of the conduct of the poll”—
which will be done by an electoral management board which has already been established for local elections in Scotland and it is widely agreed across that parties that that should continue—
“and announcement of the result, and the giving of grants”.
The reason why the giving of grants is excluded is that the Scottish Government propose that there will be no grants of public money to the lead campaigns. That is the nature of the oversight by the Electoral Commission which has been proposed.
On foreign donations, it is proposed—
Lord Forsyth of Drumlean
Before the noble and learned Lord leaves the topic of the Electoral Commission—
Lord Forsyth of Drumlean
Well, perhaps, when he comes back to it, he can answer the question whether it was ever part of the British Government’s negotiating position to require the Scottish Government to accept the advice of the Electoral Commission on the question.
Lord Wallace of Tankerness
I certainly intend to deal with that. It is a fair question which has been echoed across the Chamber in this debate.
Donations from overseas are dealt with by paragraph 28 of the agreement, which indicates that the rules under PPERA will apply. PPERA states that donations of more than £7,500 must be recorded and declared publicly and that donations of more than £500 require individuals to be registered in the United Kingdom. It is intended that these rules will apply in this referendum and the agreement has set that out. In other words, it is the same rules as are agreed under PPERA.
Lord Foulkes of Cumnock
Does that mean that more than £500 can be donated to the campaign from people in England?
Lord Wallace of Tankerness
I understand that that would be the case, yes.
My noble friend Lord Forsyth asked why broadcasting and mailshots were included in the order whereas other issues were not. The simple answer to that is that broadcasting and the Royal Mail are outwith the competence of the Scottish Parliament. Legislation brought forward by the Scottish Parliament cannot deal with these issues unless competence has been transferred. That particular part of the order transfers competence in order for the broadcasting arrangements and mailshots to be dealt with.
My noble friend and many other noble Lords asked about the nature of the question. Numerous people have found flaws with the question of whether Scotland is a country, a state or a nation, as the noble Lord, Lord Sutherland, made clear. I do not stand here to defend the question that has been put forward. It is not my job to defend it; nor would I wish to defend it. It is important that that should be a matter for the Electoral Commission, which is why it has been asked to advise.
The United Kingdom Government recognised in their consultation paper that the Electoral Commission’s role in referendums was to consult on the intelligibility of the proposed question and to report to the UK Parliament. We would have come under considerable pressure and criticism if it had been suggested that the Scottish Parliament should be treated in a different way. I will pick up on this point, because it is quite central to a lot that has been said in this debate. I will not go into the personalities, but we know the ability of not only the leader of the Scottish National Party, but in many ways the Scottish National Party itself. One thing that they have quite excelled at—those of us who have been around Scottish politics know this only too well—is their ability to nurse a grievance and to milk a grievance. That is what the noble Lord, Lord McAvoy, said about the timing of this. We do not want to give them another sense of grievance. If we had proposed that the Scottish Parliament was in some way to be treated in a lesser way with regard to a question after it had gone to the Electoral Commission than the United Kingdom Parliament was treated, we would have given them cause for a grievance.
The noble Lord, Lord Reid, was absolutely right to point out that this is a question which will come back to haunt them if they choose to ignore the advice of the Electoral Commission. I know that my noble friend Lord Forsyth said that he did not want this to be two years of picking on points, but it would be quite legitimate, if an attempt was made to put a biased question, for that to be pointed out and for the political consequences of that to be reaped. However, I would not wish, and what we have sought to avoid—and have successfully sought to avoid—is a two-year campaign in which the United Kingdom Government and Parliament are in the dock because we somehow or another have tried to rig the referendum. That is why it is so crucially important that we do not give, and we have not given, any opportunity for the Scottish Government to cry foul and say that we are somehow rigging the situation.
In an interesting article by John Rentoul in the Independent in November of last year, in which he praised my right honourable friend the Secretary of State for Scotland, he said:
“This sudden removal of the London Government from the see-saw meant that Salmond lost his balance. When Cameron went to Edinburgh in February to announce that he would not try to stop the Scottish National Party holding a referendum, Salmond found that the great London counterweight, against which his career had been built, had been taken away”.
It is important that we do not give that opportunity, or that excuse, for a grievance to be mounted. That is one of the main reasons—a key reason—why we are dealing with this in the same way as we would deal with a question in a UK referendum that had been legislated for by the UK Parliament.
That answers the question about the referee and the player. I take the point made by the noble Lord, Lord Sutherland, who came forward with a question himself. It is up to people with an interest to make their views on this known to the Electoral Commission. Clearly it would not be appropriate from the Dispatch Box to determine the agenda of the Scottish Parliament, but I rather hope that Members of the Scottish Parliament will note what has been said about them having an opportunity to debate this issue.
I will make one further point on this, which was made by the noble Lord, Lord McConnell, and was echoed by the noble Lord, Lord Empey. Lots of harsh words could, and almost certainly will be, exchanged in the next two years, and there is potential, as the noble Lord, Lord McConnell, said, for a nasty taste to be left in the mouth. That is why there is a responsibility on the Scottish Government and the Scottish Parliament to ensure that the question that is asked is not a source of that sour taste in the mouth. Just as we have sought, as a United Kingdom Government and a United Kingdom Parliament, to produce a scheme and process that will not allow anyone at the end of the day to cry foul—“It wasnae fair”—it is also incumbent on the Scottish Government and, above all, on the Scottish Parliament to ensure that when they devise the rules, procedures and indeed the questions for this referendum, they do not give anyone the opportunity at the end of the day to say “It wasnae fair”. It is important that the outcome of this referendum is decisive and properly recognised as having been fair and properly arrived at by the people of Scotland when they cast their votes in 2014.
Lord Pearson of Rannoch
My Lords, is the Minister about to leave the Electoral Commission in his remarks, or will he address the two questions that I, and the noble Earl, Lord Caithness, put to him?
Lord Wallace of Tankerness
I had indicated that I would not defend the question that had been put forward. It would be appropriate for the Electoral Commission to indicate that. I was asked about time; as was indicated by the noble Lord, Lord McAvoy, there is a timeline. My noble friend Lord Forsyth suggested that the legislation for the referendum would not come until after the White Paper. My understanding is that if this House, and subsequently, the Privy Council, approve the order next month, the Bill will be presented to the Scottish Parliament in March. The Bill cannot in fact be presented to the Scottish Parliament until such time as this order has been approved, which is why the timing of it is as it is.
The important point with regard to the question is that what has been done by this order, in transferring the legal competence to the Scottish Parliament, is such that the nature of the question and the advice of the Electoral Commission will go to the Scottish Parliament. It is not proper, and it would fuel that sense of grievance, if somehow or another we said “We’ll give you the competence to legislate for this, but only provided that we can write or prior-approve the question for you”. That would lead to a very strong sense of grievance, and would put us, who want to argue the case for our United Kingdom, on the back foot in many of the ensuing debates.
I very much hope that common sense will prevail, and that the sense of achieving a decisive outcome will prevail with the Scottish Government and Parliament. As the noble Lord, Lord Reid, indicated, they will pay a very serious political price if they do not do so.
Lord Forsyth of Drumlean
Does the Minister really mean that it was right for the Electoral Commission not to give its advice to this House and the other place on the intelligibility of the question proposed by the Scottish Parliament, and that it would be wrong for us to comment on it? If we had had the Electoral Commission’s advice today—it must be provided by 1 February—quite a long time would have been saved, because we would have known what the position was. Surely we have not got to the position where we are so afraid that what we are doing will be misrepresented that we cannot do our work. Of course we cannot decide the question, but surely it would have been entirely appropriate for us to have the opportunity to comment on the question in the light of the independent advice from the Electoral Commission.
Lord Wallace of Tankerness
My Lords, a number of questions are rolled up into that. First, that is not the obligation of the Electoral Commission—there is no statutory duty or anything else for it to provide the answer by 1 February. I cannot remember which noble Lords made the point that your Lordships’ Constitution Committee had produced a report in a relatively short period of time, so why could the Electoral Commission not do the same?
The task of the Electoral Commission, among other things, is to go out and sample the question, which is not something, with all due respect, that the Constitution Committee intended to do, and neither would we expect it to do so. There is, therefore, a piece of work to be done in testing the question for its intelligibility, whether it is leading or misleading, whether it is neutral or whether it can be understood by those who will be asked to answer it in the referendum. I do not believe, therefore, that there was somehow some obligation on the Electoral Commission to rush that. I can hear the criticisms now if people thought that it had in some way been rushed.
Neither my noble friend nor any other noble Lord will be inhibited from commenting on the report of the Electoral Commission, which will be published and very much in the public domain. I will come to the noble Lord, Lord Sutherland, in a moment. There is no doubt that it is a matter for the Scottish Parliament to determine. There will be every opportunity for voices to be expressed as to what the Scottish Parliament should do in the light of the advice from the Electoral Commission.
Lord Sutherland of Houndwood
Simply as a matter of fact, the Electoral Commission has advised me that it will publish its report early in February.
Lord Wallace of Tankerness
That is helpful. However, it is important to understand that there is a body of work that it ought to do, and is doing, before it publishes that advice.
The question has been raised about the franchise. As I indicated to my noble friend the Duke of Montrose, it is a matter of primary legislation for the Scottish Parliament. If it chooses to extend the franchise to 16 and 17 year-olds, issues will arise out of that; it will need to ensure that the proper protection is given to minors whose names would appear on a roll. That would be the responsibility of the Scottish Parliament in any legislation which it brings forward.
I do not believe that that is the thin end of the wedge. If only legislation passed by the Scottish Parliament was, we would have proportional representation by single transferable vote for English local authority elections, but I have not seen a great rush in the Westminster Parliament to follow the Scottish Parliament in that constitutional development
Several noble Lords, including the noble Lord, Lord Reid, my noble friends Lord Stephen and Lord Cormack, and the noble Baroness, Lady Liddell, posed an important question about the vote for service personnel. The position is that the members of the Armed Forces and their spouses or civil partners are entitled to vote in elections, provided that they are registered to vote either by means of a service declaration or as an ordinary voter. Members of the Armed Forces will be able to vote in the referendum if they are on the register in Scotland either as a result of an address in Scotland or a qualifying address showing a connection to Scotland, such as service accommodation in Scotland; an address in Scotland where they would be living if they were not in the services; or an address in Scotland where they have lived in the past. The same rules apply to spouses and civil partners of members of the Armed Forces.
On the specific point raised by the noble Baroness, Lady Liddell, service personnel who are overseas at the time of the referendum who would otherwise be eligible to vote will be able to vote by post or by proxy. I understand that the Electoral Commission and the Ministry of Defence run an annual electoral registration campaign to inform personnel and their families in units around the world about such voting matters. I will certainly talk to colleagues in the Ministry of Defence in the next round of prompting of information to ensure that they remind service personnel of the referendum.
Lord McConnell of Glenscorrodale
My Lords, will the Minister check very carefully that that information campaign is timed to coincide with the period during which service personnel would require to register to qualify to vote in 2014? The timescales may well be such that they would miss deadlines. We would all appreciate an assurance that such checking will happen.
Lord Wallace of Tankerness
That is an important point, and I take it on board. It is also important to make clear that service declaration, to which I referred, is now valid for five years, following legislation that took effect in March 2010. Those who have already made a service declaration which gets them on to the Scottish register will have that for the five years after March 2010, so they will certainly have it for the time of the referendum.
Lord Reid of Cardowan
I am grateful to the Minister for that. Knowing how bureaucracy can ensure that the best laid plans gang aft agley, can he ensure that there is a distinct recognition in the Ministry of Defence that this is different from the normal, annual registration, for this reason: you have go to every serviceman and woman? From what he said, there may well have to be a process to identify those who have the qualifying criteria of having had a residence in Scotland, and so forth. If that process is not started early, we will find, as we did many years ago, before we brought in the new regulations, that for purely bureaucratic reasons, servicemen and women and their families are not adequately informed—especially, as my noble friend Lord McConnell said, in time. That process has to start now. It is quite a big job weeding out, if you like, or identifying people, rather than applying a carte blanche regulation for everyone.
Lord Wallace of Tankerness
My Lords, the noble Lord makes an important point. I will certainly ensure that his comments and the general sense of the House is drawn to the attention to the Ministry of Defence. No doubt Questions can be asked to ensure that we live up to that.
Finally, my noble friend Lord Forsyth quite properly said that there should be no room for complacency. That was echoed by other noble Lords, including the noble Baroness, Lady Liddell, and the noble Lord, Lord Empey. I could not agree with them more. I have said—although I do not think it was from the Dispatch Box—that the biggest enemy that those of us who wish to remain part of the United Kingdom have is complacency. We must guard against it, not simply because I want to win—I want to win very convincingly indeed. I certainly take the point about differential turnout made by the noble Lord, Lord Empey, and very much believe that we should guard against complacency.
My noble friend Lord Forsyth and the noble Baroness, Lady Liddell, asked about information. I suspect that we will not get a completely neutral arbiter, although some bodies are producing evidence from a more neutral point of view. The noble Lord, Lord Nickson, who I think is a former chair of CBI Scotland, appropriately raised the pertinent questions that CBI Scotland is addressing to the Scottish Government.
The Government have made it clear that we will be publishing material to provide information, not least about the number of jobs provided by the defence industry and what benefits being part of the United Kingdom bring to Scottish security. It will also set out facts, which are perhaps currently unknown or often just taken for granted. In that regard, it will include the importance of our position in the world. Scotland is part of the United Kingdom which punches much above its weight in terms of our population and because of our history, to which Scotland has contributed. It will talk about the protection of our citizens. It will talk about the many economic benefits to the United Kingdom.
The first of those papers will be published in the next few weeks, and we will publish further papers throughout 2013. I hope that that brings important information, which we will all be able to use in our arguments for the furtherance of the United Kingdom.
My noble friend Lord Forsyth and I were both elected to the other place 30 years ago this year, and I have known him all that time. We have disagreed about a number of issues, not least Scotland’s constitutional future, but I have always respected where he comes from on that and the important issues that he has raised this afternoon. One issue on which we can join together is that it is very important that we join together people right across this Chamber who believe that Scotland is better as part of the United Kingdom and the United Kingdom is better with Scotland in it; that we share a common heritage; that we share common social bonds; that we have a shared cultural heritage with, fundamentally, shared political values; and that we can defend them much more effectively in an uncertain and challenging world when we are working together. It is in that spirit that I want to argue that case, and I urge your Lordships to approve the order.
Lord Forsyth of Drumlean
My Lords, what a wonderful debate we have had. It is pretty clear to me that there is a consensus in all parts of this Chamber— bar one, if I may say so—about the need to have a referendum campaign that is seen to be fairly conducted and where there is no dispute about the result at the end of the day.
As I said at the beginning, I do not propose to divide the House. I think that that would be a huge error on my part, because it might give the impression that we are not as united as we are on these matters. However, I say to my noble and learned friend—we have been friends for a long time, if opponents, which we are not now, although we were earlier in the week; it is very difficult to work out what the nomenclature of this week should be—that he has taken a risk, a gamble, on being able to ensure that we get a decent question and proper rules for the referendum. I am prepared to withdraw my amendment and back his judgment. If it turns out to be wrong, he can expect some very vigorous debates in future. I beg leave to withdraw my amendment.
Scotland Act 1998 (Modification of Schedule 5) (No. 2) Order 2013
Lord Wallace of Tankerness Excerpts(11 years, 7 months ago)
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Lord Wallace of Tankerness
That the Grand Committee do report to the House that it has considered the Scotland Act 1998 (Modification of Schedule 5) (No. 2) Order 2013
Relevant document: 11th Report from the Joint Committee on Statutory Instruments
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I will provide the Grand Committee with a brief summary of what this order seeks to achieve. The order is made under Section 30(2) and (4) of the Scotland Act 1998; in other words, it is a Section 30 order, like that which seems to have dominated much of the political discourse in Scotland over the past 12 months, but not the same one. Section 30(2) provides a mechanism whereby Schedule 4 or Schedule 5 of the Scotland Act can be modified by an Order in Council, subject to the agreement of both the UK and Scottish Parliaments, while Section 30(4) enables the modification of other enactments where that is considered necessary or expedient in connection with other provision made by the order.
This order will amend Section F1 in Part 2 of Schedule 5 to the Scotland Act 1998, which I shall refer to as the social security reservation. It will also give certain pre-existing devolved enactments—those conferring functions on Scottish Ministers or local authorities—effect as if this new version of the social security reservation had been in place when those enactments were passed or made, rather than the version of the social security reservation that actually existed at that time.
The Welfare Reform Act 2012, which I will refer to as the 2012 Act, contains provision to abolish the discretionary Social Fund. It is the intention of the Department for Work and Pensions to commence Section 70 of the 2012 Act from 1 April 2013, subject to certain savings and transitional provisions. Thus, community care grants and crisis loans for living expenses will be abolished from that date.
Although no provision for any assistance to replace community care grants or crisis loans for living expenses is provided within the 2012 Act, it is the UK Government’s policy that the new assistance will be delivered in England using existing powers in the Local Government Act 2000 and that it will be for the Scottish and Welsh Governments to decide on what new assistance will be provided in Scotland and Wales respectively.
However, the social security reservation means that the Social Fund and all its elements are reserved to the UK Parliament. Therefore, new arrangements cannot be legislated for, or indeed provided for, by the Scottish Parliament or Scottish Government within their existing competence.
This Section 30 order will provide a new exception to the social security reservation to widen the legislative competence of the Scottish Parliament so that it can provide newly created assistance to those members of the community in Scotland who might previously have applied for a community care grant or crisis loan for living expenses. Payments made out of the Social Fund will remain reserved, as will other existing social security benefits.
Although in the future the Scottish Government may decide to legislate to provide new assistance to those members of the community through primary legislation, it is the current intention of the Scottish Government that local authorities should provide newly created assistance for an interim period of two years. To provide this assistance, those authorities will use their power under Section 20 of the Local Government in Scotland Act 2003, which is known as their power to advance well-being. However, Section 20 of that Act, as it was enacted by the Scottish Parliament, does not presently give local authorities a power in an area for which the Scottish Parliament could not legislate when the 2003 Act was passed. There may also be other Scottish ministerial or local authority functions that are relevant to the exercise of the new area of devolved competence that similarly need to be expanded. We therefore believe it expedient to modify any relevant devolved enactments made prior to this order to enable the Scottish Ministers and local authorities to use such functions to provide this new assistance. My Lords, this order makes that modification.
I assure noble Lords that funding is being transferred from the Department for Work and Pensions to the Scottish Government to allow that this new assistance be provided. Based on figures provided by the Scottish Government, set-up funding of just over £2 million has been agreed between the two Governments. Agreement in principle has been reached and we expect the transfer of these set-up funds to be completed shortly.
Within the current spending review, the Department for Work and Pensions has been allocated £178.2 million for the discretionary Social Fund. This allocation will form the programme funding for the new provisions in England, Scotland and Wales, with £178.2 million per annum being apportioned nationally. In 2013-14, programme funding of just under £24 million and administrative funding of just over £5 million—which includes funding for processes that may be put in place locally to review individual awards of funding— will be transferred to the Scottish Government. In 2014-15, programme funding of the same amount and administrative funding of just over £4.5 million will be transferred. A settlement letter outlining the indicative allocation was issued to the Scottish Government on 6 August 2012.
This Section 30 order is necessary as a result of the 2012 Act and the UK Government’s policy that it is for the Scottish Government to decide what new assistance will be provided in Scotland following the commencement of Section 70 of the 2012 Act on 1 April 2013. This order demonstrates the Government’s continued commitment to work with the Scottish Government to make the devolution settlement work. I hope that the Committee will agree that this order is an appropriate use of the powers in the Scotland Act. This draft order was debated in the House of Commons on 11 December and was subsequently approved on 12 December. The draft order was also debated in the Scottish Parliament on 11 December, where the Welfare Reform Committee resolved to recommend the draft order to the Scottish Parliament. I commend the order to the Committee. I beg to move.
Lord McAvoy
My Lords, once again I thank the Minister and his staff for the admirable help and support that they have given me in looking at this legislation. My admiration for the noble Lord’s organisational abilities is somewhat dented this afternoon because he was not able to get the order higher up the Order Paper. In addition, he does not seem to have arranged heating in this Room. I will move rapidly on.
This order is a result of the Calman commission set up by the Labour Government to look at further areas where devolution could be brought in. The Minister has explained it perfectly well and I have no intention of repeating all that. However, I have a couple of questions; perhaps, as an amateur at the Dispatch Box, I will ask the wrong questions but, as ever, I will try to work it out.
The noble Lord said, if I picked it up right, that £178.2 million was a proportionate share. Is that a Barnett-formula proportionate share? What is the connection to the money that has been spent in Scotland so far? Is there any relation in the Barnett formula calculation to the calculation of how much will be paid out? If there is a difference in one, it would therefore seem to be cash-limited. Is it that every case will be looked at, or that once the money is finished the allocation is finished? Does that mean that no more cases can be looked at?
We are in a rather fluid situation in Scottish political life at the moment because of the forthcoming referendum. Maybe my mother well named me “Thomas”—I do not know—but what guarantees are there that the cash transfer to the Scottish Government will be spent on these matters? In addition, is there any way that the Scottish Government can tamper with the money that has been allocated notionally—and hopefully practically—for local authorities in Scotland and not give them their full allocation? Local authorities in Scotland have quite justified concerns about how the Scottish Government allocate money to them. We dearly need to know whether there is any way, once the money is passed over to the Scottish Government, that we in Westminster have any avenue or platform with which to raise concerns. I may be chasing a hare that is not running, but if the Scottish Government do not provide all that money straight to their local authorities for the set-up costs, is there anything that we here can do about it? Were these safeguard issues discussed for the integrity of the money being spent for the purpose that we at Westminster are allocating it? Was there any mention of these two or three questions—on the finance, the proportion and how it is to be monitored, and safeguards to ensure that local authorities get all the money that is meant for them—during these discussions?
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord McAvoy. Like me, he may have transport to catch to get back to Scotland. I think that I am just about all right at the moment, but I hear the point that he makes.
The noble Lord’s first question was about funding. I apologise if I did not make it clear but the position is that there has been a total of £178.2 million allocated for the discretionary Social Fund. That allocation for programme funding has been carried forward for the new provisions in England, Scotland and Wales. Therefore, the total for England, Scotland and Wales is £178.2 million and it is being apportioned nationally. The programme funding for Scotland will be £24 million. Clearly, that is higher than my rough calculation of what the Barnett formula will be. I am advised that it is based on what currently is going to Scotland in community care grants and crisis loans by the Department for Work and Pensions.
As I understand it, the fund is currently cash-limited, which will be the case. The Scottish Government and the Convention of Scottish Local Authorities have agreed that funds for the new provision will be ring-fenced for this purpose. Indeed, it is part of the ethos of devolution that, when this money is handed over to the Scottish Government, strings are not attached by the UK Government. Under the devolution settlement, the funds are passed by Westminster to the Scottish Government and are not ring-fenced for a specific purpose.
The Government believe that, even if one could be applied, a ring fence is not the best way to ensure that money reaches vulnerable people; indeed, it could constrain the Scottish Government as it prevents investing in existing services and pooling money with funding from pre-existing services. It may be that they can devise other ways of using that money also to give assistance. That is a matter for the Scottish Government but, as I have also indicated, they have already come to an agreement with CSLA on that, and they have indicated to us their intention to use the funding and to channel it through local authorities. Hence the slightly unusual provision in this order to give, as it were, retrospective effect to the change in the competence so that there is no doubt that local authorities will have the competence under Section 20 of the Local Government (Scotland) Act 2003 to implement and administer the scheme.
I hope that that answers the important points made by the noble Lord, Lord McAvoy. I look forward to the next time we debate a Section 30 order. Perhaps I may say that the devolution settlement is not static and that the Government of which he was a member, and the Government now of which I am a member, have, over the years since the Scottish Parliament was established, responded to changing circumstances and have changed the boundaries of devolution, I believe, very much to the benefit of both the United Kingdom and Scotland. I think that it shows that devolution works. Of course, independence would be an end to devolution, so we must take every opportunity to flag up devolution’s success stories. It is very much a living thing, and that is what we are doing today. I therefore commend this order to the Committee.
Partnerships (Prosecution) (Scotland) Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 7 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
A Second Reading Committee considered the Bill in the Moses Room on Tuesday 4 December. I therefore beg to move this Motion formally.