Crown Estate Transfer Scheme 2017
Lord Wallace of Tankerness Excerpts(7 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Earl of Kinnoull (CB)
My Lords, I thank the Minister for her usual eloquence in explaining the transfer scheme. However, I ask her for help on a number of matters in relation to the scheme. I should say that I am not in any way wanting to object to the devolution contained in the Scotland Act 2016, of which this forms a part and which was the statutory embodiment of the Smith commission agreement of November 2014. I emphatically feel, however, that where these precious assets are concerned, we must be very careful to go no further than the Smith commission agreement, especially in relation to their status.
The framework document between the Treasury and the Crown Estate puts the status of these assets well. It is,
“a trust estate, independent of government and the Monarch”.
These assets are not therefore available for political uses. The first issue I will ask the Minister about is that of the onwards devolution which she spoke about a moment ago. Paragraph 33 of the Smith commission agreement saw this onward devolution going to named local authorities and to other authorities that ask. We debated this at length. As the Minister pointed out, the noble Lord, Lord Dunlop, made a ministerial undertaking in respect of the report six months after the transfer. In making the commitment, he also said that the UK Government would continue to press the Scottish Government on this issue. Can the Minister can update us on what progress has been made on that issue?
The Crown Estate is governed by the Crown Estate Act 1961, which sets out the duties and powers of the Crown Estate Commissioners and the general environment under which the assets are held. In her remarks, the Minister went some way towards this, but can she confirm that these provisions remain fully in force, now and in the future, over the Scottish assets that are transferring and the only real change is in the people and institutions who will be involved in the management of those assets?
The Treasury and the Crown Estate have a framework document, which I have already referred to. It is four pages of common sense in plain English. It contains two further important phrases:
“The Crown Estate ... is not an instrument of government policy”,
and, when referring to ministerial direction:
“A direction may be given only within The Crown Estate’s statutory duties”.
Can the Minister tell us whether a similar framework document is ready for 1 April in Scotland, given its importance in underlining the independence of the Crown Estate commissioners and providing clarity?
Lastly, I turn to the Scottish Government’s Crown Estate consultation document. The noble Baroness referred to the consultation, which started in January and finishes on 29 March. The document is 70 pages and contains, early on, a “Way forward” statement which says:
“The Scottish Ministers intend to introduce legislation which puts in place a new legislative framework for management of Crown Estate assets in Scotland”—
then, the part I emphasise—
“that ensures … alignment with Scottish policy objectives”.
Later on, it says:
“After the transfer, the Scottish Parliament will have the power to legislate on the new framework for managing Crown Estate assets in Scotland”.
Then there is the part that I would emphasise:
“This will include the ability to depart from the Crown Estate Act 1961”.
Could the Minister comment on those two assertions as well?
Lord Wallace of Tankerness (LD)
My Lords, as the Minister indicated, I moved an amendment on Report, and possibly also in Committee, on the Scotland Bill, which the noble Earl, Lord Kinnoull, has already referred to. The Minister has already answered one of the questions I was going to ask, which was whether it was still government policy to have a statement after six months. I am delighted to hear that it is, and we look forward to the statement.
The noble Earl has asked the second question, which is a request for a bit of colour and flavour to the commitment made by the noble Lord, Lord Dunlop, when he was replying to the debate on my amendment and said that the Government would continue to press the Scottish Government to deliver what was promised to the island communities and other communities in the Smith agreement: some detail as to what the Government have been doing to “hold the feet of the Scottish Government to the fire” on this matter, which I think were the words used during the debate. This is a welcome first step in fulfilling the intention of the Smith commission and we hope that onward devolution will become a reality sooner rather than later.
Lord Adonis (Non-Afl)
My Lords, I am sorry to add to the questions that have been posed to the Minister, but could she tell the House a bit more about the relationship between the income from the Crown Estate that is being devolved to Scotland and the sovereign grant? Under the Sovereign Grant Act, a substantial proportion of profits from the Crown Estate go to fund the monarchy, and that proportion is rising significantly with the arrangement that the Government have entered into for the refurbishment of Buckingham Palace. The agreement in respect of the Crown Estate profits in England is for 25% to be used that way. Will a similar share of the profits from the Crown Estate in Scotland be allocated to the sovereign grant from the profits of the Scottish Crown Estate under this arrangement? If not, are the Scots making any contribution to the monarchy at all?
Queen’s Speech
Lord Wallace of Tankerness Excerpts(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank the noble Lord, Lord Rosser, for his encouragement regarding the tone I will set.
It is just over a week since the Motion for an humble Address was moved very eloquently and wittily by my noble friend Lord Fowler and was very ably seconded by my noble friend Lady Scott of Needham Market. The House has debated many issues since then. As has been pointed out by more than one contributor, today we are debating constitutional and devolved affairs, foreign and Commonwealth affairs, defence, international development and culture. My noble friend Lady Falkner said that it might have been better if those subjects had been taken on separate days, and I am strongly tempted to agree.
When I agreed to wind up this debate, I was told that it might focus very much on Scotland. There is another debate on Scotland planned for 24 June, to which I again have to respond. However, it is indeed a privilege to be able to respond to a debate which has ranged widely but has also included outstanding contributions from noble Lords who have such considerable expertise and knowledge in these areas.
It is probably also important to recognise some of the overlaps that are not immediately obvious. The Commonwealth Games were mentioned by my noble friends Lady Warsi and Lord Moynihan, and of course that links to the importance of the Commonwealth. It is one aspect of the Commonwealth where its nations and peoples come together and celebrate sport. The Games will also involve a considerable amount of work not only on the part of the Scottish Government but on the part of the United Kingdom Government in support for what we all very much hope will be a great feast of sport and a great success in Glasgow later this year.
My noble friend Lady Warsi also mentioned the importance of consular representation and talked about what we owe to our consular service throughout the world. She put it in the context of the many thousands of English supporters who will be travelling to Brazil. I very much regret that our consular officials in Brazil will not have to deal with Scottish supporters or indeed with Welsh and Northern Irish supporters. It is important that those of us who are arguing the case for Scotland remaining part of the United Kingdom should remind ourselves of the great service, advice and support that Scots travelling abroad get from a range of consular staff, as well as other Foreign and Commonwealth Office support, right across the globe.
It will be impossible for me to pick up every point, for which I apologise. However, I shall try to pick up some of the themes and, if particular issues have arisen, I shall write to noble Lords. My noble friend Lord Rodgers of Quarry Bank let me off the hook and said that he would accept a letter. I had actually anticipated being asked about English Heritage and had asked for briefing on it. However, the briefing had not anticipated the question that came from the right reverend Prelate the Bishop of Norwich as to whether we can have a fast track for women bishops entering your Lordships’ House if, as we hope, the legislation is passed to allow women bishops in the Church of England. That would be a matter for the Government and the Church of England to discuss at the appropriate time.
The right reverend Prelate also raised the question of cathedrals. As he acknowledged, in the Budget in March it was announced that a two-year grant scheme will provide £20 million to help to carry out essential repairs to ensure that cathedrals are in a good condition, as they will play a central role in the First World War centenary commemorations.
On the subject of culture and sport, my noble friends Lady Bonham-Carter and Lady Benjamin mentioned the creative industries. Today, our agenda has been driven by the Creative Industries Council. It was originally set up by the Government but is now industry-led, and its role is to identify key barriers to growth for the sector and to propose actions both for the industry and for government to overcome. We are committed to working with the CIC as it develops and implements an industry-led growth strategy, building on its work to date. I understand that that strategy is due to be launched in the summer, and we will obviously want to reflect on it and respond to it.
I will write to my noble friend Lady Benjamin about tax credits for children’s programmes However, I very much take on board the point that she made about the importance of diversity in the media, particularly behind the scenes. It was a very well made point, and it is something not just for government but for the industry itself to reflect on.
Sport, particularly football, and governance were raised by the noble Lord, Lord Triesman. In a courageous speech, he rightly praised the investigative journalism that has gone on with regard to a number of serious allegations which will have to be properly addressed. Governance obviously is recognised to be primarily in the gift of the national governing bodies. We expect good governance of all national governing bodies, particularly for funded sport—including Sport England and the UK sport NGBs—in achieving this and in overseeing the investment of public funds.
The noble Lord, Lord Rosser, raised the BBC. We have just announced the process for appointing the next BBC Trust chair. Recruitment is under way. The post has been publicly advertised. The chair will be chosen on merit in a fair and open way. The noble Lord also mentioned the BBC World Service. It is fair to point out that the former chair of the trust, my noble friend Lord Patten, confirmed in a statement in June 2013 that the funding for 2014-15, which is the first year of licence fee funding, would be £245 million. That is an increase of £5 million on the previous year. He also stated that the move to licence fee funding would give the World Service a far greater degree of financial security.
In response to the noble Lord, Lord Grocott, it would probably save time if I do not give the huge list of things which the Government have achieved in terms of constitutional measures passed during this Parliament. He mentioned the Fixed-term Parliaments Act, as did my noble friend Lord Norton of Louth. I say to my noble friend who asked about the Government’s response that I very much apologise to the House that once again we have not been able to respond to the Constitution Committee’s report on the constitutional implications of coalition government. I had hoped that we would have been able to respond by today’s debate and regret that that has not been the case. As my noble friend indicated, it raises important matters which require detailed consideration and agreement. I hope that that response will come as soon as possible.
My noble friend Lord Tyler mentioned the recall Bill and emphasised the importance of getting the right balance. Those who represent their constituents and express their views, which may be unpopular, should not be at risk. But if people break the rules or commit a crime, we will put in place a means for a petition by their constituents.
The House will have been struck by the number of very considered contributions from those from Northern Ireland and from the noble Lord, Lord Dubs, who has considerable experience of the Province. Questions were asked about dealing with the past. It is certainly the Government’s view that they wish to remain engaged in the process but they very much recognise that the process must be led by the people and parties in Northern Ireland. We welcome the fact that the party leaders are resuming their meetings. The point was made in more than one contribution that we must ensure that confidence is not eroded. The noble Lord, Lord Empey, and others referred to the Haass talks. The Government and the Prime Minister take a close interest in this matter, which is very much at the heart of people and community groups in Northern Ireland.
I certainly will try to respond in writing about what has been happening as regards the royal prerogative of mercy. My right honourable friend answered Questions on Northern Ireland today and last month indicated that the records from 1987-97 would be looked at. I know that she wants to take that forward. My noble friend Lady Randerson, as the Northern Ireland Office’s spokesman in your Lordships’ House, certainly confirmed that we would be more than willing to arrange a briefing for Peers with an interest in Northern Ireland before the Summer Recess. The noble Baroness, Lady O’Loan, raised the issue of coroners. They probably merit more than I can answer in a very short time. I hope that noble Lords who raised issues about Northern Ireland will accept the Government’s keen and continuing interest in this. We recognise the sensitivities involved and will certainly want to engage with noble Lords who have a very understandable interest in what is going on there.
The noble and gallant Lord, Lord Stirrup, reflected on where we were 12 months ago and where we are today. It was a litany of crises that had magnified or new ones that have arisen. It was a very sombre but necessary reminder to us as to the uncertain world in which we live. His speech was certainly a very thought-provoking contribution to the debate. He obviously led on to argue the case for the importance of our defences, with military size and equipment being up to the challenges. That was echoed by the noble Lord, Lord West of Spithead, who particularly focused on the capacity of the Royal Navy. The Royal Navy remains one of the world’s premier navies. It has a bright future. We have shown our commitment to the Queen Elizabeth carriers and the Type 45s. Of the latter, the sixth, HMS “Duncan”, was commissioned last year. There are the Type 26 global combat ships, the Astute-class programme and the new offshore patrol vessels. Four new support tankers for the Royal Navy are being built and we also look forward to the Successor-class submarine programme. I know that there is more detailed concern about that; it was reflected in the debate.
A number of colleagues, including my noble friend Lord Lyell and the noble Lord, Lord West, called for a debate on this. Following the debate on 23 June—a week on Monday—on the defence legislation setting up the ombudsman, there will be a debate on the armed services when there will be an opportunity to deal with these issues more fully. My noble friend Lord Lyell asked about the future reserves. The expansion of the reserves is about doing defence differently, not about doing it on the cheap. Our recruitment campaign is a five-year programme. We are confident that we can meet our target of 35,000 trained reservists by 2018. It was never the intention that the bulk of these would be recruited in the first year.
One of the themes that ran through our debate today is the Global Summit to End Sexual Violence in Conflict. It was interesting that in a number of areas where issues of crisis and conflict arose they were also linked to issues involving sexual violence. The Government welcome and are grateful for the tributes paid not least to my right honourable friend the Foreign Secretary for hosting the summit. We heard from the right reverend Prelate the Bishop of Coventry. My noble friend Lady Williams of Crosby made a very important point about the extent to which sexual violence against women and young people is now used almost as an instrument of war. That was reflected in the contribution from the noble Baroness, Lady Cox, who gave specific examples. The noble Baroness, Lady Kidron, in a very powerful speech about events in Somalia, drove home the need for concern. It is absolutely vital that we address and counter this.
I think we all agree that identifying the problem is one thing and the next step is implementation. We very much hope that we will be able to start taking these matters forward. We note the challenges in many countries. Burma was mentioned, as were Somalia, northern Nigeria, Syria and Sudan. It is because women and girls are more likely to be poorer, more marginal and with fewer rights that DfID puts them front and centre. The right reverend Prelate the Bishop of Coventry talked of the need to address social norms to counter violence against women and girls. That is very true and underpins the work that my honourable friend Lynne Featherstone has done in challenging and combating female genital mutilation. A number of practical outcomes—I will not list them all—are sought as a result of this global summit. The noble Lord, Lord Ahmed, referred to the violence in Kashmir but, with particular reference to Nigeria and Boko Haram, the Foreign Secretary will be hosting a summit tomorrow, 12 June, to facilitate regional co-ordination in the fight generally against Boko Haram. That is another welcome initiative by my right honourable friend.
I thank noble Lords for their tributes to the United Kingdom for finally reaching the milestone of contributing 0.7% of GNI to aid. As to what the noble Baroness, Lady Kidron, said about her work in Somalia and what the noble Lord, Lord Ahmed, said in relation to health and education in Pakistan, I can assure them that all contracts are awarded strictly in accordance with extremely tight protocols. As the noble Lord, Lord Collins, said, it is right that we assist. It makes sense for the UK to help in encouraging stability and growth around the world. I associate myself with the remarks of the noble Earl, Lord Sandwich, in paying tribute to aid workers. It is important that we recognise the contribution they make, very often in the front line.
My noble friend Lord Chidgey challenges our thinking on the private sector and we shall be responding to the ACI review shortly. We are already addressing its concerns. I hear what he says about the key importance of encouraging the development of parliaments so that they can hold governments to account. The rule of law, transparency and respect for human rights are also vital for a flourishing democracy, as a number of noble Lords have said.
The noble Earl, Lord Sandwich, raised the issue of data collection. We agree that there needs to be such a data revolution as information enables us to ensure that no one is left behind. That theme was also reflected in the contributions of the noble Lords, Lord Low, Lord Hunt and Lord Crisp, in relation to those with disabilities. DfID will be shortly responding to the International Development Select Committee’s report in this area. I recognise also the point made by my noble friend Lord Loomba that widows suffer a double discrimination both as women and as widows. He has a formidable record in championing them.
We recognise, too, that climate change affects the poorest the most. It was therefore important to have the contributions of the noble Lords, Lord Prescott, Lord Hunt and Lord Collins, about the vital importance of reaching global agreement on climate change. We will seek to take that forward across different departments in government in the various discussions and negotiations that lie ahead.
On Ukraine, I thank the noble Lord, Lord Hannay, for his comments and I can assure him that the situation will remain a priority. We are, as a Government, committed to supporting President Poroshenko and his efforts to tackle the challenges facing Ukraine. The noble Lord, Lord Kerr of Kinlochard, mentioned the Austrian state treaty. The bright young men and women in the Box have not yet come up with a specific answer but I shall make sure that he gets one. He asked about our strategy beyond sanctions. We continue to work in close co-ordination with our European Union and other international partners to de-escalate the situation in Ukraine and to help support the Government of Ukraine and President Poroshenko in delivering the stable, democratic and prosperous future that the Ukrainian people deserve.
We played a key role in ensuring that Ukraine had the support it needed to hold free and fair elections on 21 May. I welcome the contribution of the noble Lord, Lord Cromwell, in what may or may not have been a maiden speech. He is welcomed back for the assistance that he and his company have given in that.
In partnership with Ukraine and the United States we hosted the Ukraine asset recovery forum in April in London in order to co-ordinate the next steps. We are providing up to £10 million in technical assistance. Plans include the World Bank Trust Fund, partnership with Germany, public financial management, managed funds for technical assistance and support to elections. There are a number of strands to this.
As to the relationship with President Putin, a point raised by a number of your Lordships, EU heads of state and government agreed on 20 March that relationships with Russia could not simply be business as usual. The Prime Minister and the Foreign Secretary have spoken to both President Putin and Foreign Minister Lavrov respectively during this crisis. As has been indicated, the Prime Minister met President Putin on 5 June and reaffirmed that the status quo is unacceptable and that the continuing destabilisation of eastern Ukraine must stop. President Putin must recognise the legitimate election of President Poroshenko and stop arms crossing the border into Ukraine. I think it was my noble friend Lord Jopling who asked about NATO in this context. The House will be well aware that NATO’s response to an attack is governed by Article 5 of the Washington treaty, but noble Lords will be aware of activity that NATO has been undertaking in some of the Baltic member states.
Clearly the issues in the Middle East—I think it was said from Mali to Mumbai—are of vital importance. Picking up a point raised by the noble Lord, Lord Hylton, on 2 June, President Abbas announced the formation of an interim technocratic Government, who the United Kingdom and others have welcomed, reuniting Gaza and the West Bank under a Government who are committed to peace. That, we believe, is a necessary condition for resolving the Israel/Palestinian conflict. It is very much in the long-term interests of Israel and of peace in the whole region for the two states to embrace a two-state solution, as I believe the alternatives to that would be much more difficult. The noble Lord, Lord Williams of Baglan, expressed from his own rich experience his concerns about these matters. He also asked about Egypt. We believe that inclusive political participation is essential in Egypt and that President al-Sisi needs to ensure that Egypt’s constitution allows for it. The noble Lord, Lord Stone of Blackheath, told us about MECCI going off to Egypt this weekend. The Government welcome MECCI’s endeavours to strengthen parliamentary links between the United Kingdom and Egypt, and efforts to build accountable and democratic institutions. I will be interested to hear about the visit, and no doubt the noble Lord will report back to your Lordships’ House on his return.
It is clear that the events of the past 24 hours in Mosul underline the difficulties and the sensitivities. As the Foreign Secretary has indicated, they show the impact of Syria on the entire region and emphasise the need to renew efforts to find a political solution in Syria. It is also important for a new Government to be formed to ensure political unity in Iraq and to tackle terrorism. I would urge all Iraqis to unite. These are developing issues, but I can assure the House that my colleagues in the Foreign and Commonwealth Office will monitor them very closely. The right reverend Prelate the Bishop of Coventry asked if the Friends of Syria Group could do more to prevent fracturing of the Syrian opposition and what the international community could do. It is important to recognise that the United Kingdom has driven international efforts to find political solutions to the crisis. At its request, we have provided political and practical support to help the opposition national coalition become a credible and unified body capable of engaging in the political process, and through the Friends of Syria core group, we have encouraged the national coalition to reach out to all sections of Syrian society and demonstrate that it is a credible alternative to the Assad regime. We will continue to work with our London 11 allies and the national coalition to strengthen it further.
Before moving on to Scotland, I have a final issue to raise on foreign affairs, but first I must respond to my noble friend about the structure of the Foreign and Commonwealth Office. I think that her points are well made and well understood, and I understand that efforts are being made to increase the number of women in senior ambassadorial and high commission positions. Perhaps I may write to her in more detail because her argument was well made and well received.
I turn to the issue of European Union reform. I do not think that we should be trapped into setting out a list that the media would then treat as a set of red lines. It is important to look at the direction of the European Union. It was right of my noble friends Lord Ashdown and Lord Alderdice to remind us of the origins of the European Union only a few days after we marked the 70th anniversary of the D-day landings, when Europe was liberated from the tyranny of Nazism. The vision of the initial pioneers was to create a Europe that would not be at war, as it was for my father’s and grandfather’s generations, but would be at peace. We want to ensure that we have a European Union that is competitive, flexible and democratically accountable. We are working with our partners to try to achieve that objective, and we should not underestimate what we have done so far. We have delivered the first ever cut in the budget of the European Union. We have launched negotiations on the world’s biggest trade deal. I would say to the noble Lord, Lord Hannay, who raised the matter, that it is still very much part of the United Kingdom’s priorities to have an EU-US trade deal. It would be worth £10 billion a year to the United Kingdom economy. We have safeguarded British interests by keeping the United Kingdom out of the eurozone bailout facility. Lastly, as someone who represented a fishing constituency for many years, the progress I have seen in the development of the common fisheries policy over recent months and years is right and proper, but I never thought that I would see the day that it happened.
Finally, the issue of Scotland has been raised by many contributors. The speech of the noble Lord, Lord Reid of Cardowan, who was the first person to speak principally on Scotland in this debate, was one that struck us all. He reminded us of the tone of the campaign. The noble Baroness, Lady Liddell of Coatdyke, and my noble friend Lord Stephen also referred to the response on the Twittersphere to JK Rowling’s announcement. I was worried when the noble Baroness said that she was going to quote something because I had seen some of the responses. She was right: the ones that she and my noble friend quoted are by far the least offensive. It is language that would shock us all. It is not just the tone of the debate—important issues about the referendum get lowered by that—but my fear is what kind of Scotland would it be if people like that got their way? It is not one that I would feel comfortable in, where if you do not agree you are subject to such denigration. Those who have said it is important that the First Minister should clearly distance himself from that are absolutely right.
The noble Lord, Lord Hennessy, said that we should be looking to a new United Kingdom in the event of a no vote. As I indicated, my right honourable friend the Secretary of State for Scotland has already indicated that he would be looking to convene a new Scotland because we already have a number of contributions from the political parties. I think it was the noble Baroness, Lady Liddell, who talked about the constitutional convention. That was important but none of the projects that has come forward so far for Scottish devolution, either the 1998 Act or the 2012 Act, came originally from government. The convention, which embraced civic Scotland, led to the 1998 Act, and the 2012 Act was a product of the Calman commission, which again was not a product of government but of parties and people in civic Scotland. It is important that we engage civic Scotland.
However, I also take the point made by the noble Lord, Lord Hennessy, about the wider United Kingdom. The noble Lord, Lord Whitty, talked about decentralisation, and colleagues from Wales and Northern Ireland have contributed as well as those from England. Indeed, in replying to a letter some time ago from the First Minister of Wales about a constitutional convention embracing the whole United Kingdom, my right honourable friend the Prime Minister indicated—I do not have his exact words—that there was some merit in that but not until we had actually done the most important thing of making sure that we still had a proper United Kingdom with Scotland as part of it.
I want to conclude with this thought. We have talked about the number of things that have been achieved. The noble Lord, Lord Reid, used the “Monty Python” sketch to illustrate them. But many of the things that have been relevant to this debate are relevant to why Scotland should remain part of the United Kingdom—not least the global summit aimed at preventing violence against women in conflict, which is something that the United Kingdom can proudly claim to have been at the forefront of leading. The noble Lord, Lord Judd, is absolutely right to stress the importance of human rights values in our foreign policy. I think that an independent Scotland would still aspire to these values but it would not have the clout or the influence to do as much about it as we can as part of the United Kingdom.
I think it was the noble Lord, Lord Wigley, who said that we cannot have Scotland’s voice always filtered through London but that is not the point. The point is that Britain’s voice is very often in a Scots accent—or a Welsh accent or a Northern Irish accent—as much as an English accent. It is that greater thing that we aspire to, things that we do not just historically—and reference has been made to the historic events of 100 years ago and 70 years ago—but today, such as preventing violence against women or the arms trade treaty, which again we took leadership of, which we can be proud of as a United Kingdom and in which Scots have played their part. That is why I sincerely believe that on 18 September my country men and women in Scotland will vote to ensure that we are kept together, and that when we have the Queen’s Speech next year, whoever is doing the arrangements will ensure that Scotland still comes under constitutional and devolved affairs and not foreign affairs. I ask the House to support the Motion.
Scotland Bill
Lord Wallace of Tankerness Excerpts(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Wallace of Tankerness)
I beg to move that this Bill be now further considered on Report. In moving this Motion, I am conscious that at earlier stages in the passage of the Bill, Members of your Lordships’ House have been anxious about the progress towards a legislative consent Motion. On Monday, I indicated that the Scotland Bill Committee would meet this week—I thought that it would be today but I understand that it was yesterday—to discuss the legislative consent Motion and the agreement reached between the Governments on the Scotland Bill.
I can advise the House that the committee met yesterday. It debated and agreed a short report, which was published earlier today, on the draft legislative consent Motion, which had been put forward by the Scottish Government. That report concludes with the following words:
“All of the Committee notes the contents of the Legislative Consent Memorandum and a majority recommends that the Parliament gives its consent to the legislative consent motion”.
Only the Green Party member of the committee has chosen not to make a recommendation.
It is now clear that we have agreement between the Governments on this Bill and a clear recommendation to the Scottish Parliament to vote in support of the Bill from both the Scottish Government and the committee established by the Scottish Parliament to review the Bill. That report having been published earlier today, I thought it was important to bring it to the attention of the House.
Lord McCluskey
I hope that the House will forgive me if I take 90 seconds to say something about my personal attendance, or non-attendance, for Part 4 of the Bill today. Each time I have come to the House, the proceedings of the Scotland Bill have been delayed—today, by more than three hours; on Monday by longer than that; and, at Second Reading, by even more. Unfortunately, that means that I, for personal and domestic reasons, am unable to remain until Part 4 is reached. It will be at a time when I have to go for personal reasons.
However, perhaps I may say that I am deeply indebted to the Advocate-General for the way in which he has responded to the amendments proposed in relation to the Supreme Court. The end result is something with which even I could agree to the extent of about 98 per cent. In due course, I shall write to him with a couple of technical points that are perhaps worthy of consideration. I hope that we can proceed on the basis that the Advocate-General is now advocating in Part 4. I am indebted to him and his staff for all the courtesy shown to me in the course of these proceedings. I thank your Lordships for allowing me this indulgence.
(a)”
Lord Wallace of Tankerness
My Lords, as we come to the final group of amendments, we move from finance to law.
In the debate that we had in Committee on the roles of the Lord Advocate and the Supreme Court in criminal proceedings, I recognised that we had come a long way from some of the exchanges that took place last summer. Today, we are not considering whether the Supreme Court should have a role in relation to certain constitutional issues arising in Scottish criminal appeals, as it is agreed that this is, and ought to remain, within the current constitutional framework. The issues that remain to be discussed concern the nature and extent of the appeal rights to the Supreme Court in Scottish criminal proceedings and how those rights can operate effectively.
The amendments that I tabled in Committee took account of the views expressed by a number of bodies and people on these issues, including the expert group that I set up under the chairmanship of Sir David Edward, the review group led by the noble and learned Lord, Lord McCluskey, and indeed the representations made by the Lord Justice General and Lord President of the Court of Session, Lord Hamilton.
In Committee I agreed to consider a number of issues and said that, if persuaded, I would be willing to table amendments on Report. The amendments that I have tabled reflect some of the points made in this House in Committee and the agreement reached between the Government and the Scottish Government to ensure that a legislative consent Motion in support of the Bill is tabled in the Scottish Parliament.
There has been much discussion about the questions that should constitute a compatibility issue and those that should remain devolution issues. We have been seeking to ensure that the new appeal right is workable and that it does not result in argument about when the appeal right should and should not apply. Account also has to be taken of the important constitutional issues that can arise when considering the legislative competence of the Scottish Parliament and the acts of Scottish Ministers.
Amendment 35 amends the definition of a compatibility issue to include questions raised in criminal proceedings as the compatibility of Acts of the Scottish Parliament with the Convention on Human Rights or European Union law. Other questions as to whether an Act of the Scottish Parliament is outwith the competence of the Scottish Parliament—for example, whether it is a reserved as opposed to a devolved matter—will remain devolution issues, even if they are raised in criminal proceedings. The effect of that will be that there will be a single route of appeal for all convention and EU law issues raised in criminal proceedings, regardless of whether the issue relates to an act of a public authority or the compatibility of an Act of the Scottish Parliament.
Amendment 39 would remove from the definition of a devolution issue any question raised in criminal proceedings relating to compatibility with the convention or EU law. As I said, this will ensure that questions about the compatibility of ASPs with the convention and EU law that are raised in criminal proceedings can be raised only as compatibility issues. Questions as to the compatibility of acts of the Scottish Ministers raised in criminal proceedings will be raised as compatibility issues, not devolution issues, by framing these as questions of whether the Scottish Ministers have acted, or propose to act in a way which is unlawful under Section 6(1) of the Human Rights Act 1998.
Amendment 33 amends the definition of “compatibility issue” to make clear that such an issue can arise only in criminal proceedings—in other words, if there is an issue about an Act of the Scottish Parliament and its relationship to EU law that is not in the context of criminal proceedings, the normal devolution issues will apply.
Amendment 37 provides a procedure for the reference of compatibility issues. It allows the lower courts to refer a compatibility issue to the High Court before trial proceedings are concluded. The decision of the High Court on the compatibility issue can then be appealed to the Supreme Court. The amendment also allows the Advocate-General or the Lord Advocate to require the lower court to refer a compatibility issue to the High Court, acting as an appeal court, before trial proceedings are concluded. Where this power is exercised, the High Court can refer the issue to the Supreme Court or determine the issue itself. If the High Court determines the compatibility issue itself, this again can be appealed to the Supreme Court.
Where a compatibility issue arises in the High Court sitting as an appeal court, the amendment allows the High Court itself to refer the issue to the Supreme Court rather than determining the issue. However, if the compatibility issue is being considered by the High Court on a reference from the lower court of its own volition, the High Court must determine the issue and cannot refer it to the Supreme Court. The powers of the Supreme Court in determining a compatibility issue arising out of a reference will be the same as on an appeal of a compatibility issue, so the Supreme Court will determine the compatibility issue and remit proceedings to the High Court. We do not expect these reference powers to be used frequently but consider that there may be cases when these powers are beneficial and enable important issues to be dealt with quickly. It will still be possible for both the lower court and the High Court to hear cases expeditiously and there may be cases where this is more appropriate than the making of a reference.
I turn to the amendments tabled by the noble and learned Lord, Lord McCluskey, and we acknowledge what he said earlier in our proceedings. I am grateful to him for the way in which he has engaged with officials on this issue. The amendments raise the question of whether the Lord Advocate and Advocate-General should be able to refer to a compatibility issue to the Supreme Court without the permission of the High Court. It is an issue that I will consider further. In particular, I wish to consider what the role of the High Court should be in a reference of a compatibility issue by the Law Officers to the Supreme Court. It is one that I want to discuss with the Lord Advocate. It may, therefore, be necessary to table further amendments at Third Reading to provide for such a further power of reference for the Lord Advocate and Advocate-General.
Perhaps the most controversial issue in this matter is the issue of certification. I have not been persuaded that it is necessary to provide a compatibility issue that can be appealed to the Supreme Court only if the High Court has certified that it raises a point of law of general public importance. However, as I said in Committee, I consider that the arguments in respect of this are finely balanced and I have considered very carefully the views expressed by the Lord Justice General and the review group of the noble and learned Lord, Lord McCluskey.
The amendments that I have tabled do not seek to introduce a certification requirement. However Amendment 52 makes provision for there to be a review arranged by the Secretary of State of the new compatibility issue procedure and of the introduction of time limits for devolution issue appeals to the Supreme Court in Scottish criminal proceedings. The review is to be carried out as soon as practicable after the provisions have been in force for three years. I consider three years to be an appropriate time to enable us to asses how the new procedure is working. Before the review takes place, there must be time for the new compatibility procedure to bed in, and having the review before a three-year period may not allow this to happen. Even allowing for the limited number of cases where permission to appeal a devolution or compatibility issue is likely to be sought, there should be sufficient evidence available after the provisions have been in force for three years for a review to take place. The review can be carried out earlier if the Secretary of State considers this appropriate—for example, if circumstances arise that suggest the need for an earlier review.
The review will be wide-ranging. It will look at all aspects of the provisions and consider whether changes should be made. In particular, it will consider whether compatibility issues should be appealable to the Supreme Court only if the High Court certifies that the issue raises a point of law of general public importance. The review will not be limited to considering whether certification, in the form used in England and Wales, should be introduced: it will be able to consider alternative forms of certification.
The United Kingdom and Scottish Governments have agreed that the review will be chaired by the Lord Justice General. It will seek a wide range of views, including those of the Lord Advocate, Scottish Ministers, the Scottish courts, the Supreme Court and representative bodies with an interest in the criminal justice system. The Lord Justice General is the appropriate person to chair the review as he—or she; a new Lord Justice General will be in post by then—will have the appropriate overview of criminal procedure. It is not necessary for the Bill to provide that the review should be chaired by the Lord Justice General. I hope that my statement to the House to that effect should be sufficient.
I will address two further issues. There was discussion about the role of the Supreme Court in relation to compatibility issues. This was considered by the review group of the noble and learned Lord, Lord McCluskey, and by the Scotland Bill Committee. In Committee in this House I tabled amendments to provide that when the Supreme Court considers a compatibility issue, its role is only to determine that issue and then remit the case back to the High Court for disposal.
The Supreme Court has the power under Section 40 of the Constitutional Reform Act 2005 to consider any question that must be determined for the purpose of doing justice in an appeal to it, and can make rules governing its practice and procedure. New Section 288AA of the Criminal Procedure (Scotland) Act 1995, inserted by Clause 38, makes it clear that the powers of the Supreme Court in relation to compatibility issues are exercisable only for the purpose of determining such issues.
The general powers of the Supreme Court, as set out in provisions such as Sections 40 and 45 of the Constitutional Reform Act 2005, will be read subject to the specific provisions in new Section 288AA that limit the court’s powers in relation to compatibility issues. For the purpose of determining compatibility issues, the Supreme Court will have the power to make any change in the formulation of the compatibility issue that it considers necessary in the interests of justice. New Section 288AA also expressly provides that when the court has determined the compatibility issue, it must remit the proceedings to the High Court.
Rule 29 of the Supreme Court Rules 2009 makes provision on Supreme Court powers in relation to appeals. This was discussed with the chief executive of the UK Supreme Court. She confirmed that Rule 29 would be read in the light of any relevant changes to the primary legislation agreed as part of the Bill.
There are currently no time limits for appealing devolution issues in criminal proceedings to the Supreme Court. It is important that there is finality and certainty, not least for victims, in relation to criminal proceedings. Amendment 51 provides for time limits for appeals to the Supreme Court in relation to devolution issues that arise in criminal proceedings. The limits are the same as those that will apply in relation to compatibility issue appeals to the court. An application will have to be made to the High Court for permission to appeal within 28 days of determination of the appeal, or such longer period as the court considers equitable. If the High Court refuses permission, an application to the Supreme Court must be made within 28 days of the High Court’s refusal of permission. Again, the time limit can be extended if the court considers this equitable. This will strike an appropriate balance and reflect the need for finality in criminal proceedings, while taking account of circumstances when it might be appropriate for the time limit for appeals to be extended.
Finally, Amendment 38 amends Section 102 of the 1998 Act. It provides that if the Supreme Court, in considering a compatibility issue, decides that a provision of legislation is outwith legislative competence, it will be the High Court rather than the Supreme Court that will decide what retrospective or other orders might be made under Section 102 of the Scotland Act 1998. If the Supreme Court, in determining a compatibility issue, decides that an Act of the Scottish Parliament is outwith competence, the ASP will still not be law. Amendment 38 is about dealing with the consequences of the ASP not being law, and reflects the respective roles of the Supreme Court and the High Court.
Amendments 41 and 44 are technical drafting amendments. Amendments 53 and 54 are consequential amendments as a result of the provisions on the role of the Supreme Court in Scottish criminal proceedings being moved from Part 2 of the Bill to Part 4.
It is an important issue and I appreciate these amendments are technical. They raise a number of important issues, too. After much dialogue and discussion I believe that we have struck the right balance and I beg to move.
Lord Cameron of Lochbroom
My Lords, I pay tribute to the Minister for having listened so obviously to what has been said in all quarters—not least in your Lordships’ House—about these matters. The proposals in these amendments seem entirely reasonable and appropriate, particularly in the light of certain remarks that my noble and learned friend Lord Cullen and I made about the place of the Supreme Court in our judicial system.
Having listened to the noble Lord, Lord Browne of Ladyton, I have sympathy with the view that he has expressed, and indeed the amendment proposed, that the review should be carried out after a longer period than that proposed in Amendment 52. It seems that this is an important review, although apparently not one that will be repeated; therefore, the importance of its conclusions must be based upon a sufficient period to give those conclusions some justifiable basis.
Although the matter of the chairmanship and membership of the review does not appear in the amendment, there is substance in what the noble Lord, Lord Browne, has said about both the chairmanship and the inclusion of one of the Justices of the Supreme Court. I therefore support what he has said in that regard. Otherwise, I pay tribute to the noble and learned Lord for what he has achieved in bringing these amendments forward.
Lord Wallace of Tankerness
My Lords, I am very grateful to the noble Lord, Lord Browne of Ladyton, and the noble and learned Lord, Lord Cameron of Lochbroom, for their general welcome for the position that we have reached with regard to these amendments and the role of the Supreme Court and issues of compatibility in criminal proceedings with European convention rights or European Union law.
I also pay tribute to the noble and learned Lord, Lord Boyd of Duncansby, who not only has made a very constructive contribution to this and other debates on this Bill but was a member of the expert group I set up under the chairmanship of Sir David Edwards; he has been contributing to this debate from a very early stage. I also welcome the 98 per cent satisfaction rate that I seem to have achieved from the noble and learned Lord, Lord McCluskey. I think that is a recognition of the amount of work that has been done by so many people in trying to bring this matter to a satisfactory outcome.
The noble Lord, Lord Browne of Ladyton, is right to recognise that this is part of the agreement that we reached with the Scottish Government. He and the noble and learned Lord, Lord Cameron, asked whether three years was sufficient. The noble Lord, Lord Browne, explained why we had resisted the idea of certification. The comparison with England and Wales was that certification was brought in under the Administration of Justice Act 1960 to stem a flood. If after three years, there have only been five or six cases, that would be a relevant factor to be taken into account; the flood has not happened. Without in any way prejudging any inquiry, the fact that there has not actually been a huge number of cases would have to weigh in to the consideration, if that is how it indeed turns out.
I do not believe that that the composition of the committee and its chairmanship is inappropriate. Many commissions are headed up by a judicial figure. I do not think that to head up a commission with the most senior judicial figure in Scotland is inappropriate, given that one can be assured that a figure of such stature will undoubtedly deploy the judicial qualities which have put him or her into that position. In moving the amendment, I indicated that there will be a number of views. We would expect bodies such as the Lord Advocate, Scottish Ministers, the Scottish courts and the Supreme Court and a number of representative bodies—and the bodies such as have responded to the consultations which I held, including, for example, the Scottish Human Rights Commission, Justice, the Law Society of Scotland and the Faculty of Advocates—to contribute.
We did not seek to put into statute that it should be the Lord Justice General, not least because—in answer to the point made by the noble Lord, Lord Browne—of what would happen if a future Lord Justice General does not want to be involved. When the time comes for the review to be held, should the Lord Justice General at that time not consider that it would be appropriate for him or her to undertake the review, of course the United Kingdom and Scottish Governments would work together to agree an alternative chair for the review.
By the same token, I do not think that we would wish to be constrained by specifying, as the amendment proposes, a Justice of the Supreme Court. For example, a recently retired Justice of the Supreme Court might be an appropriate person—either one from Scotland or one from another part of the United Kingdom. I hear the fair point that someone having had that experience might well be an appropriate person to be a member of the review body but I do not think that it would be appropriate to put that into statute. As I have said, it might not be a currently serving Justice of the Supreme Court but one who nevertheless everyone agrees is an appropriate person to serve.
When the time comes for the review to be set up, I am sure that soundings will be taken as to who would be appropriate to serve on that commission. With these words, I hope that I can reassure the House that the review will properly look at all the issues, not just those of certification but at how time limits have worked. I have no doubt that the issues of certification will be properly aired before that commission as they have been before your Lordships’ House and in the wider legal and public debate.
As this is the last group of amendments, I thank all noble Lords who have taken part in the debates on Report. I believe that in these two days of Report, and in Committee, this House has done what it is intended to do; namely, to give proper scrutiny to the measures brought forward in this Bill. I am very grateful to noble Lords, and to my noble friend Lord Sassoon for helping me in responding. I hope that colleagues in all parts of the House will enjoy and refresh themselves over the Easter Recess before returning to Third Reading.
Lord Forsyth of Drumlean
Perhaps I may say how much we have appreciated the way in which the noble and learned Lord and the noble Lord, Lord Sassoon, have handled this Bill. I do not think that, from all sides of the House, this has been a particularly easy time for them but we have certainly done our job and very much appreciate the way in which the Government have dealt with this.
(b) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights or with EU law.”
“References of compatibility issues to the High Court or Supreme Court
In the Criminal Procedure (Scotland) Act 1995, after section 288ZA (inserted by section 37) insert—“288ZB References of compatibility issues to the High Court or Supreme Court
(1) Where a compatibility issue has arisen in criminal proceedings before a court, other than a court consisting of two or more judges of the High Court, the court may, instead of determining it, refer the issue to the High Court.
(2) The Lord Advocate or the Advocate General for Scotland, if a party to criminal proceedings before a court, other than a court consisting of two or more judges of the High Court, may require the court to refer to the High Court any compatibility issue which has arisen in the proceedings.
(3) The High Court may, instead of determining a compatibility issue referred to it under subsection (2), refer it to the Supreme Court.
(4) Where a compatibility issue has arisen in criminal proceedings before a court consisting of two or more judges of the High Court, otherwise than on a reference, the court may, instead of determining it, refer it to the Supreme Court.
(5) On a reference to the Supreme Court under this section—
(a) the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.(6) When it has determined a compatibility issue on a reference under this section, the Supreme Court must remit the proceedings to the High Court.
(7) An issue referred to the High Court or the Supreme Court under this section is referred to it for determination.
(8) In this section “compatibility issue” has the meaning given by section 288ZA.””
“( ) In section 102 (powers of courts or tribunals to vary retrospective decisions)—
(a) in subsection (4)(b) at the end insert “or to a compatibility issue,”;(b) after subsection (5) insert—“(5A) Where the decision mentioned in subsection (1) is a decision of the Supreme Court on a compatibility issue, the power to make an order under this section is exercisable by the High Court of Justiciary instead of the Supreme Court.”;
(c) in subsection (7) before the definition of “intimation” insert—““compatibility issue” has the meaning given by section 288ZA of the Criminal Procedure (Scotland) Act 1995.””
“( ) after “purposes of” insert “a reference under section 288ZB or”;”
“Time limits for appeals on devolution issues in criminal proceedings
In Schedule 6 to the 1998 Act (devolution issues) after paragraph 13 insert—“13A In criminal proceedings, an application to the High Court for permission under paragraph 13 must be made—
(a) within 28 days of the date of the determination against which the appeal lies, or(b) within such longer period as the High Court considers equitable having regard to all the circumstances.13B In criminal proceedings, an application to the Supreme Court for permission under paragraph 13 must be made—
(a) within 28 days of the date on which the High Court refused permission under that paragraph, or(b) within such longer period as the Supreme Court considers equitable having regard to all the circumstances.””
“Review and power to amend sections 37 to (Time limits for appeals on devolution issues in criminal proceedings)
(1) The Secretary of State must arrange—
(a) for a review of the provision made by sections 37 to (Time limits for appeals on devolution issues in criminal proceedings),(b) for a report of the conclusions of the review to be made to the Secretary of State, and(c) for a copy of the report to be given to the Scottish Ministers.(2) The review must be carried out as soon as practicable after the end of 3 years beginning with the day on which section 38(5) comes into force, or earlier if the Secretary of State considers it appropriate.
(3) The review must—
(a) consider whether changes should be made to the provision made by sections 37 to (Time limits for appeals on devolution issues in criminal proceedings);(b) consider whether further provision should be made in relation to any matter dealt with by those sections; (c) consider (in particular) whether an appeal to the Supreme Court on a compatibility issue should lie only if the High Court of Justiciary certifies that the issue raises a point of law of general public importance.”(4) The Secretary of State may by order—
(a) amend the provision made by sections 37 to (Time limits for appeals on devolution issues in criminal proceedings);(b) make further provision in relation to any matter dealt with by those sections.(5) Provision made by order under subsection (4) may—
(a) amend, repeal or revoke an enactment passed or made before the order is made;(b) confer power on the Secretary of State or the Scottish Ministers to make an order or regulations;(c) include consequential, transitional or saving provision.(6) In this section “enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978) and an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament.
(7) In making the first order under subsection (4) the Secretary of State must take into account the report made in accordance with subsection (1)(b).
(8) No order under subsection (4) may be made unless the Secretary of State has consulted the Scottish Ministers.
(9) A statutory instrument containing an order under subsection (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Scotland Bill
Lord Wallace of Tankerness Excerpts(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Browne of Ladyton
I shall savour that apology. I am grateful to the noble Lord for his gracious apology. I shall bank it away because we may get to a point during the course of today when I will need it in order to bargain for others.
I am as interested as any Member of the House in where the discussions between the Government and the Scottish Government are in relation to the legislative consent Motion. However, I have been consistently of the opinion that the Scottish Parliament will pass a legislative consent Motion in relation to this Bill. I am also consistently of the view that we have promised the Scottish people that we will deliver the Bill in such a way that it can be enacted by a legislative consent Motion effectively and that we should keep our word to the Scottish people and to the Scottish political classes.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, picking up on the final point made by the noble Lord, Lord Browne, there was a commitment in the manifestos of all three parties—the Conservative Party, the Labour Party and the Liberal Democrats—at the last general election that we would seek to implement the Calman commission proposals, which this Bill substantially seeks to do.
On the issue of sitting days, I readily recognise the concerns. Indeed, I was told that the House would sit to debate the Scotland Bill on a Thursday and I have turned up today with my noble friend Lord Sassoon to respond to the amendments. The noble Lord, Lord Browne, indicated some of the issues that we have had to address. There was one day—Tuesday, 14 February—when, because of the time taken by the Welfare Reform Bill, we did not manage to debate anything. The decision was taken late in the day that it would not be proper to start our debates after 9.30 pm, and there was general agreement that that was the right decision. Our previous debate in Committee was on a Tuesday. Next week we will be in Committee on Wednesday.
On the point made by the noble Baroness, Lady Liddell, it was not on Second Reading but when we moved into Committee in January that the Government announced, as a result of representations they had received, quite properly, from my noble friend Lord Forsyth, that there would be a consultation. There were amendments on the Marshalled List to the effect that we would not deal with referendums until after the consultation period had closed. I indicated at the time that we would hope to deal with them in the week beginning 12 March, and today was originally identified as the date for doing so. However, as has been indicated, as we lost a day because of the ping-pong on the Welfare Reform Bill, we were not able to make as much progress on the last occasion as we had hoped. These debates will now take place next Wednesday, when there will be an opportunity to address the issues around referendums.
It is perfectly reasonable for my noble friend to ask where we have got to with the legislative consent Motion. A Motion was passed in the Scottish Parliament in March last year, which I suspect is the one that our honourable friend Mr Gauke was talking about. I have no doubt that the noble Lord, Lord Foulkes, voted for it, as he was still a Member of the Scottish Parliament at the time. It is also worth pointing out that on the final vote, Mr Alex Salmond voted for it, too, as did many people who are currently members of the Scottish Government. That legislative consent Motion stands until any subsequent Motion is tabled that updates it.
The Government intend to secure a legislative consent Motion from the Scottish Parliament in favour of the Bill—
Lord Forsyth of Drumlean
My noble and learned friend says that the legislative consent Motion stands. However, will he deal with the view of the committee—which is the latest consideration by the new Parliament, where there is now an SNP majority rather than a minority—that it was unable to recommend that the Parliament pass a further legislative consent Motion on the Bill until it had been amended in line with the committee’s recommendations? As we discussed before, there are 45 recommendations, which effectively deliver devo-max.
Lord Wallace of Tankerness
That is perfectly fair and I will come on to address that. I was simply making the observation that there is, currently, an outstanding legislative consent Motion, which was actually supported by many members of the current Scottish Government. It is certainly our intention that we should have a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and I and my ministerial colleagues have been working very hard to secure the support of the Scottish Parliament for such a Motion. I am sure the Scottish Government would acknowledge the same.
We have been working together to consider and to assess the request for amendments to the Bill. It would be wrong to speculate on the outcome of the work being undertaken with the Scottish Government, but the key point is that I can assure the House that we are working hard to ensure that the Scottish Parliament will vote in favour of a legislative consent Motion for the Bill. It would not be appropriate to get ahead of discussions between Ministers—as noble Lords have highlighted, it is for the Scottish Government to propose a legislative consent Motion and we must allow the interministerial discussions to continue and not get ahead of them. However, I know that my right honourable friend the Secretary of State had conversations yesterday with the Scottish Government. Indeed, before coming to your Lordships’ House today, I was engaged in discussions about moving forward, to get into a position where we can get an agreement.
The Sewel convention is about respecting the devolved areas for which the Scottish Parliament is accountable. It provides that the United Kingdom Parliament will not normally legislate on devolved matters without the Scottish Parliament’s consent. I believe we have gone further than with any other Bill in considering and taking on board the view of the Scottish Government and Parliament, and we will continue to work to reach agreement. The Secretary of State has made clear, in letters, phone calls and meetings with Scottish Government Ministers, that we will properly consider all their requests for changes to the Bill. I understand and readily recognise that noble Lords are keen to hear the outcome of the discussions with the Government, but I urge noble Lords to continue with their thorough scrutiny of the Bill, alongside our work to agree a legislative consent Motion. I hope that by the time we come to Report, it will have been possible to update your Lordships on the intergovernmental discussion.
Lord Foulkes of Cumnock
It would be helpful to be updated at that stage and to set a target, in our plan, for an update to take place on the ministerial discussions. Given the upcoming recesses and the fact that the Bill will have to have Royal Assent before the final Dissolution of Parliament ahead of the Queen’s Speech, we do not have much time. It is important to plan the sequence of events. Can the Minister indicate what his target date is for the legislative consent Motion to go to the Scottish Parliament? Is it between Report and Third Reading, which would seem to be the logical time?
Lord Wallace of Tankerness
I agree with much of what the noble Lord says. He is right to point out that prorogation is sooner rather than later and that it is necessary to get Royal Assent before that. As has been acknowledged, it is not for United Kingdom government Ministers to table the legislative consent Motion, but the Scottish Government are well aware of the proposed timings and of the stages when any amendments would have to be laid so that your Lordships’ House would have adequate opportunity to discuss them.
Before I gave way to the noble Lord, I was about to indicate that I hoped it would be possible to update your Lordships before Report on intergovernmental discussions. It would not be helpful—and no doubt many of your Lordships present have engaged in such negotiations—for negotiations to take place by telegraphing from one parliamentary Chamber to another. That would be counterproductive. However, I reassure your Lordships that serious efforts are being made to reach agreement. Given the point made by my noble friend Lord Forsyth about the important issues we have to debate today, I hope we can agree to move into Committee so that we can get on and debate them.
Lord Grocott
Perhaps I may ask about a matter of significance to this Parliament. Will the Minister clarify whether there will be just five or six days between Committee and Report on the Bill? The noble Lord, Lord Strathclyde, is in his place, and he will know that the Leader’s report, which he commissioned, recommended very strongly that the minimum intervals between stages of Bills should be respected. As the House will remember, they were abused at the time of the Parliamentary Voting System and Constituencies Bill, and I would be troubled—as the House should be—if they are being abused again now.
Lord Wallace of Tankerness
My Lords, I hope that I can reassure the noble Lord, Lord Grocott, that this is not an abuse. The matter was agreed because we were meeting a legitimate concern and expectation, expressed by a number of your Lordships across the House, that we should defer some sittings of the Committee until such time as the United Kingdom Government’s consultation had concluded. That was welcomed at the time; and because of that, the timescales inevitably had to be short.
Lord Foulkes of Cumnock
With respect to the Minister, all that was agreed was that the discussion of the referendum should be taken in Committee. There was never any discussion about Report across the Floor of the House.
Lord Wallace of Tankerness
There was an expectation across the Floor of the House that we should defer Committee discussion until the end of the consultation. It was agreed between the usual channels that if we did that, it would necessitate a shortened period between Committee and Report—if only for the obvious reason of being able to get to Royal Assent, as the noble Lord pointed out.
Lord Forsyth of Drumlean
My Lords, I very respectfully remind my noble and learned friend that the Bill is before Parliament. In his remarks about legislative consent, he indicated that the Government might have to bring forward some amendments as a result of the negotiations that are being carried out by Ministers. Ministers cannot just presume the consent of Parliament. It strikes me as extremely odd that we should be half way through the Committee stage on a Bill that was introduced more than a year ago, and these negotiations are still continuing. I do not know if my noble friend is a fisherman. I am. If you want to land a salmon, you play it for a long time. In this case, the Salmond seems to be playing the Minister. He is deciding the timetable and what amendments may be put before us. We are being told that we can only consider them at the last minute, against a deadline. This is a ridiculous position for us to be in.
I have two specific questions for the Minister. Is he saying that, in the absence of a legislative consent Motion, the Bill will not go ahead? Or is he saying that he is in negotiation and will bring forward reasonable amendments, but that the Bill will go ahead? That is the crucial thing that he needs to tell the House now.
Lord Wallace of Tankerness
My Lords, there are a number of possible options if the legislative consent Motion is not forthcoming, but every effort is being made to achieve it. Obviously, my noble friend is absolutely right that anything in any amendment that is brought forward will be subject to Parliament. As we well know, it is quite proper and consistent with our procedures for your Lordships to vote on anything they wish to. It will be for Parliament to decide the final shape of the Bill.
Lord Forsyth of Drumlean
My noble and learned friend said that Parliament will decide the final shape of the Bill, but there is a thing called a timetable. We know that the House will get up for the Queen’s Speech. We are against a time constraint, and if negotiations are continuing as the Bill proceeds, the opportunity for the House to do that will be limited. When my noble and learned friend says that a number of options are open to the Government in the absence of a legislative consent Motion, could he share them with the House? We are entitled to know whether the Bill that we are discussing will go ahead if we do not have a legislative consent Motion. That is a perfectly reasonable question, and the Minister cannot respond by saying that there are a number of options. There is only one option—yes or no.
Lord Wallace of Tankerness
That is two options, for a start, and a third option could be to pass it and park it. We are seeking to reach agreement, and my noble friend has repeated the truism that it will be for Parliament to determine the final shape of the Bill. If Parliament does not wish to agree, that may determine the reaction of the Scottish Parliament to a legislative consent Motion. But I emphasise that, as things stand, much effort is being made and considerable progress is also being made with regard to achieving a satisfactory outcome. As I said to the noble Lord, Lord Foulkes, we hope that we will be able to update your Lordships before the House considers the Bill on Report.
The Earl of Caithness
I apologise to my noble and learned friend for not being here when the debate started, but I was in a committee upstairs and may therefore have missed this point. If there are amendments as a result of further negotiations, will the House go back into Committee so that we can speak more than once on them?
Lord Wallace of Tankerness
The convention and the devolution guidance notes that update it state that we seek a legislative consent Motion before the last opportunity for amending. In your Lordships’ House, that would be Third Reading. Therefore, it was always anticipated that it would not be necessary to go back into Committee. I hope that after discussing the important point made by my noble friend Lord Forsyth we can go ahead and debate the important issues around the financial provisions in the Bill.
Lord Foulkes of Cumnock
I wonder whether everyone in the House is absolutely clear, because I am slightly confused about it, that we have now degrouped from my amendments the amendments tabled by the noble Lord, Lord Forsyth, on the referendum on taxation powers, so we are just dealing with Amendments 53, 55, 56 and 57.
Lord Wallace of Tankerness
It is certainly my understanding, and I think it is the understanding of my noble friend, that the amendments tabled by the noble Lord, Lord Foulkes, Amendments 66 to 69 and Amendments 75, 76, 84 and 86, are now grouped with the amendments to which my noble friend has just spoken. We are at the moment trying to get a fresh piece of paper that sets them out. It is my understanding that they are on much the same subject.
Lord Foulkes of Cumnock
We are very confused, because I got a draft that said that, but the paper from the government Whips’ Office with today’s lists for your Lordships’ House lists the Questions that were tabled, my noble friend Lord Barnett’s Motion and, as the main business, this Bill and the target for today. It then has the grouping for amendments. Everyone picked this up on the way in, and I have assumed that that is the basis on which we are debating.
Lord Sewel
My Lords, I refer to the earlier discussion about groupings. Do I take it that the authoritative groupings list that we are working to is the one that is still being distributed by the Printed Paper Office?
Lord Wallace of Tankerness
I hope I can be helpful. My understanding is that my noble friend Lord Forsyth has spoken to a grouping of Amendments 53, 55, 56 and 57. He indicates that that is right. If there is some confusion it is because it was thought that the amendments in the name of the noble Lord, Lord Foulkes, which start with Amendment 66, had been regrouped. However, he indicated that that was not the case and that he will speak to them when we come to them. Therefore, the groupings of the amendments on referendums that we have here are definitive.
Lord Browne of Ladyton
My Lords, I thank the noble Lord, Lord Forsyth, for his amendments and for opening this debate. I also thank him for the opportunity to make a speech that will, I hope, over the hours that we will spend on debating these and related issues, be considered to be multipurpose.
I had expected—and anticipated in preparing my speaking notes—the amendments of my noble friend Lord Foulkes to have been regrouped, for maybe the second time, with those of the noble Lord, Lord Forsyth. Therefore, I wrote a note to myself to apologise to both noble Lords for giving a generic response, rather than addressing all the subtleties of the individual effects of their amendments. I do so because this is, ultimately, an issue of principle. I do not devalue all the detailed points that underpin the argument that the noble Lord, Lord Forsyth, put forward about the interesting debates that we could have in Scotland on the referendum and the detail of these specific taxation powers. However, whether we have a referendum on them is an issue of principle, and there are principles that we ought to apply. I will deal with that. I am sure that we will then get to the detail through the revised groupings, or re-revised groupings, of amendments that I have in front of me. The noble Lord, Lord Forsyth, has indicated that the details are exercising him.
My second point is one that I have made before. I deeply regret that timetabling prevented the other place dealing with the detail of these very important issues. The last time that we convened this Committee, we had a very interesting debate on Clause 28— probably for the first time anywhere in the United Kingdom, unfortunately. It is a matter of deep regret that our elected representatives in this Parliament were denied the opportunity for debate by timetabling, thereby denying us a quarry of their position that we could mine to inform our debate. Therefore, when we draw on what we believe is the will of the Scottish people, as expressed by their elected representatives, we draw on information that unfortunately cannot be in the public domain, such as conversations and observations. Some of us have expertise that we have built up over time from watching what is happening in Scotland and knowing, from the conduct of politicians, what the people they represent are telling them. That is deeply unfortunate but it is where we are. There is a bigger issue at stake in the politics of Scotland, but I will come to that strongly later in the debate. We should keep our eye on the prize, which at this time is the union of the United Kingdom. There is a political imperative at the moment that should dominate everything that we do. I regret that we are sometimes forced into undermining that by the way in which this has been handled, which has been deeply inefficient.
I turn to the principle of referendum. I do not believe that there is any constitutional imperative to hold a referendum on the devolution of financial powers to Scotland, as provided for by Part 3 of the Bill, for the following reasons. First, the conclusion of the Select Committee on the Constitution in its 2010 report, Referendums in the United Kingdom, was:
“We do not believe that it is possible to provide a precise definition of what constitutes a ‘fundamental constitutional issue’”.
It is a fascinating publication for the reasons that I am about to explain to your Lordships’ House. The committee did not look specifically at the example of the devolution of financial powers, although it could have because it was in the air. Therefore, noble Lords are entitled to look beyond such a conclusion to test whether what has been described by government Ministers as the largest transfer of financial power from London since the creation of the United Kingdom would be a likely candidate for a referendum.
In looking beyond the committee’s conclusions, we should look at the evidence that was heard, which is deeply instructive. If noble Lords will excuse me, I will go into this in some detail because it is interesting. Before I rehearse some of the evidence, I am prepared to concede that people who listen to this debate may think, on the basis of the expert testimony to the committee, that there is a legitimate view that that evidence tends towards the view that the devolution of financial powers would commonly be considered a candidate for referendum, given that the definitions posited included the following. I will share a number of them with noble Lords.
In giving evidence, Professor Gallagher referred to,
“fundamental questions concerning sovereignty or a major constitutional settlement, especially if they concern steps that would be completely or virtually irreversible once enacted”.
The Institute of Welsh Affairs, in its evidence on page 126, referred to,
“truly major issues of democratic principle—change that alters fundamentally the nature of the state”.
Caroline Morris, who is an expert, gave two definitions:
“Topics ... which directly affect the constitutional make-up and powers of a state”,
and,
“changes to the sovereign powers of a state”.
My noble friend Lady Kennedy of the Shaws gave the following definition:
“Anything that changed the power balances within our democratic system ... anything that in any way redistributed power in a significant sense”.
Professor Bogdanor cited:
“Legislative proposals which provide for a radical alteration in the machinery by which the laws are made”.
Professor Saward referred to,
“significant, encompassing and lasting change in the formal and general rules and rights which locate political authority”.
Professor Graham Smith mentioned,
“anything that changes the dynamic and the relationship between the people and those who are elected”.
All these definitions, which are not mutually consistent, could support the argument of the noble Lord, Lord Forsyth. However, they must all be considered against the backdrop of historic precedent. As the Constitution Committee noted in its analysis, no definition of principle can be extracted from historic precedent.
Lord O'Neill of Clackmannan
I should like to follow my noble friend and say that I do not support the amendment. I had the privilege of being a neighbour of the noble Lord, Lord Forsyth, for many years. I have seen him exercise political skill across a broad spectrum, but on many occasions not without a degree of cynicism. I have to say that his amendment today is just a cynical opportunity to attack the principle of taxation. The idea that referenda have anything of any substance to do with this is just a bit of a smokescreen. The fact of the matter is that a referendum agreed that a Scottish Parliament would have tax-raising powers. The powers have never been exercised. Do we therefore need a referendum to take away powers that we have never used? I do not think so. There is a case, which has been made quite well by the noble Lord, regarding the clumsiness of the manner in which this taxation will be imposed. Were it to be imposed in its present form, it would probably be grossly unfair to too many of the poorest people within Scotland. That is the issue.
Let us not bother about the referendum question. Let us just question whether or not taxation in the form that is being suggested is the most appropriate way of trying to develop a sense of fiscal responsibility in a Scottish Parliament—whether it is separate or devo- maxed, or even with its present fumbling, incompetent and profligate way of expenditure.
Lord Wallace of Tankerness
My Lords, the amendments we are discussing relate to whether there should be a referendum on the provisions contained within the Bill’s specific reference to the changes to income tax and Scottish income tax. There will, of course, be opportunities at the next sitting of the Committee to debate amendments relating to an independence referendum. Indeed, later today there will be an opportunity to consider the details of the income tax proposals. I have no doubt that my noble friends Lord Forsyth and Lord Lyell will contribute to that, and my noble friend Lord Sassoon will be very pleased to respond.
I should make a point of clarification to my noble friend Lord Lyell, who raised a question about the Income Tax Act 2007. I can advise him that that Act sets out, as part of the tax law rewrite programme, how an individual’s income should be taxed and the distinction between savings and non-savings income. It is right that the Bill follows that approach.
The Government have a clear mandate to implement the Calman commission’s conclusions, as we seek to do in the Bill. There were pledges to do that in not only the manifestos of the two coalition parties but in the manifesto of the Official Opposition, the Labour Party. It is fair to say that these proposals were worked out after consultation by the Calman commission. I do not think that anyone can fault the level of consultation. There was considerable public discussion after the publication of that commission’s report. There was a White Paper by the previous Labour Government. There was a Command Paper by this Administration. These matters have been pretty well aired and the noble Lord, Lord Browne, said that these are powers that people want. The Scottish Social Attitudes Survey 2010 showed that 57 per cent of people wanted the Scottish Parliament to have powers of taxation and, significantly, only 37 per cent wanted Westminster to have tax powers. There has been considerable discussion of this, and I am not aware, with some respectable and respected noble exceptions, of any great clamour to have a referendum on these matters.
The proposal would be to have a referendum prior to the implementation of the finance provisions. These provisions will give the Scottish Parliament increased powers to take decisions on how to raise money as well as how to spend it. The crucial point was the final one made by the noble Lord, Lord O’Neill—the Bill will give the Parliament increased accountability and fiscal responsibility. While these reforms are significant and substantial new powers, they fall very much within the framework of the original Act.
The noble Lord, Lord Browne, reminded us that the question on tax powers was answered overwhelmingly in the affirmative in the 1997 referendum. In it, the Scottish electorate endorsed the establishment of a Parliament with the ability to exercise tax-varying powers, and therefore have a degree of financial accountability for taxation and spending decisions. As has been pointed out, these powers have not been used, but it is clear that there is demand for increased financial accountability, and that call was regularly made to the Calman commission—the Parliament should be not only responsible for how it spends money but have some greater accountability and responsibility for how it raises money. That has widespread support. It was also within the existing framework of the Scotland Act to vary the powers of the Scottish Parliament and its Ministers by order-making powers, such as those in Sections 30 and 63 of that Act. Here, of course, we are doing that by primary legislation.
Lord Forsyth of Drumlean
My Lords, I hesitate to go back over old ground and reopen old wounds, but as I recall, I was the person who was pressing the Labour Party to have a referendum on the tax-varying powers. The shadow Secretary of State—now the noble Lord, Lord Robertson of Port Ellen—was dead set against a referendum but he was sat upon by Tony Blair, the then leader of the Opposition, and forced to agree to one. I think that I can claim a track record on getting the referendum that was initially opposed by the then Labour Opposition. But quite rightly, and to their credit, they followed through on it.
Lord Wallace of Tankerness
I am probably going to compound matters by saying that it was opposed by the Scottish Liberal Democrats at that time. It was not right to say that all parties called for a referendum, but we all campaigned in it.
Lord Forsyth of Drumlean
That absolutely illustrates my view. The noble Lord, Lord Browne, says that people’s attitudes to referendums are a matter of political judgment. I tend to find that people are in favour of referendums if they think that they can win them but against them if they think they might lose.
Lord Wallace of Tankerness
My Lords, I did not have any doubt that we would win a referendum, I just did not think it was necessary—and I did take the legislation through on the referendum for the alternative vote. The point, as the noble Lord, Lord Browne, said, is that there is no political movement for a referendum on these measures. He is also absolutely right to say that all of us who share the goal of keeping Scotland within the United Kingdom should have our eye fixed on the one referendum, in which we will seek to ensure that Scotland remains a full member and plays a full part in the United Kingdom. Any other referendum in the interim would be a distraction and could undermine the case, because it would obviously take up time and resources when we should in fact be focusing on exposing the weaknesses of the case for independence and proclaiming the case for a Scotland within the United Kingdom. In those circumstances, I very much hope that my noble friend will not press his amendments.
Lord Forsyth of Drumlean
My Lords, we have had an interesting debate and I am grateful to everyone who has spoken. I seem to be somewhat isolated on this issue. I worry about the idea that the tax-raising powers in the Bill will increase the accountability of the Scottish Parliament. As I am sure my noble and learned friend will confirm, had those powers been in place and exercised since 1998 when the Scottish Parliament was established, the block grant which the Scottish Parliament had available to it would have been reduced by many billions. The exercise involves substituting a slice of the Barnett funding with funding that comes from the tax base. If public expenditure is growing faster than the tax base, the result is that far less revenue is available.
Tempted as I am to support the proposals because they would have had the effect of squeezing public expenditure in Scotland substantially and, I suggest, avoided considerable waste and the policies which have resisted reform of the public services, the notion that they would increase accountability needs to be looked at very carefully. It will squeeze the resources available to the Scottish Government over time and, in doing so, put pressure on them to use the tax powers, which by the nature of the gearing effect will result inevitably in Scotland becoming the highest taxed part of the United Kingdom. I venture to suggest that at that point, many people will say: “Why weren't we told this? Why didn't we know about it?”. If I am still around, I will take great pleasure in saying: “I suggested that there should be a referendum so that people had a chance to consider these arguments and know what they were being committed to”.
I entirely accept that the political classes and the political establishment have got together in the worthy cause of stopping the Scottish nationalists getting control of the Scottish Parliament and taking us towards independence, but I have my doubts about how it will increase accountability. I suggest that my noble and learned friend think about this again. If a referendum was held—I assume that those on both Front Benches are confident that the Scottish people would vote yes to these tax-raising powers, although I suspect that their opposition to the referendum may lie in their doubt that they would—there would be clear consent for the exercise of the powers.
The noble Lord, Lord Browne, and the noble Earl, Lord Mar and Kellie, suggested that a mandate was granted by the referendum on the original Scotland Bill. The noble Lord is quite right to say that the question was:
“I agree that the Scottish Parliament should have tax-varying powers”,
but those tax-varying powers were defined in the referendum campaign as being limited solely to 3p on the basic rate. This is far more than tax-varying powers. This is the introduction for the first time of a new Scottish rate of income tax. We are not talking about tax-varying powers here, we are talking about the ability to set a new rate of income tax that the Scottish Parliament chooses.
My noble and learned friend talks about opinion polls and surveys. I venture to suggest that if you go out and say, “Do you think the Scottish Parliament should have more powers?”, that is a bit like saying, “Do you love your mother?”. Of course people are going to say yes, the Scottish Parliament should have more powers. If you ask them, “Do you think that Scotland should be able to be made the highest taxed part of the United Kingdom?”, I think they might have a different view. If you ask them, “Do you think that the Scottish Parliament should be able to take money out of your pay packet?”, you might get a different answer.
Lord Forsyth of Drumlean
My Lords, the St Augustine approach to the Calman commission is upon us. We have heard repeatedly that the Bill is to implement the Calman recommendations, which included devolving air passenger duty. Now we are being told by both Front Benches that the time is not right: “Oh Lord, make us have air passenger duty, but not yet”. The reason that the time is not right is that the Government are reviewing air passenger duty. We learnt from the noble Lord, Lord Kilclooney, that the Government are prepared to devolve it to Northern Ireland and that the Secretary of State is prepared to give it to Northern Ireland. We are told that it would be difficult to include it in the Bill because there could be all kinds of implications because of changes to air passenger duty. We already have differences between Scotland and England. My noble and learned friend Lord Wallace will know the answer to this question, but I am pretty certain that highlands and islands airports are exempt from air passenger duty.
Lord Forsyth of Drumlean
Only one way. One-way tickets. Perhaps I may suggest that this is a possible area for the Office of Tax Simplification to consider. You can just see how a committee has sat down and said, “Which way is it? If you’re leaving Inverness there’s no air passenger duty, but if you’re arriving there is”. I am told that it applies in both directions for Inverness.
Lord Wallace of Tankerness
From memory, it applies both ways for Inverness but the relief is available only one way for airports in the islands and Wick. For the life of me I cannot remember in which direction. I think it is when travelling from the islands and Wick but I would have to check.
Lord Forsyth of Drumlean
So it is a policy that encourages emigration from the highlands and islands. The very fact that there is this degree of complexity torpedoes any suggestion that it would be possible to give this power to the Scottish Parliament now. Of course, if the regime changed then the revenue would change, and we have already heard at great length how this would be compensated for under the principle of “heads you win, tails you win”, which is apparently central to the Bill.
I entirely take on board the noble Lord’s chastisement. He was absolutely right. I tried to talk about the economic benefits but he is right to focus on the fact that this is not about tax. Actually, the tax revenue is not hugely significant but I believe that the impact of the tax could be, and he gave an example. I remember all the battles that we used to have in the late Lord Younger’s day about saving Prestwick, and I am aware of the stress and pressure on these islands services. I hope that I will not embarrass my noble and learned friend Lord Wallace but this is highly political to the extent that I think the Scottish Government leant on an airline—Loganair—to withdraw an invitation to him to address its 50th anniversary dinner. That is a disgraceful example of the poisonous way in which members of the SNP-led Government behave. Therefore, this is very political and very important to the islands, and I am disappointed that my noble friend is maintaining this St Augustine position, saying that he favours it but the time is not right.
Lord Wallace of Tankerness
My Lords, we return to the issue of the referendum. In the group of amendments to which the noble Lord, Lord Foulkes of Cumnock, has spoken, there is an amendment that would require a referendum to be held before further taxation powers can be devolved and a referendum that would be required before Part 3 of the Bill would come into force. Somewhat curiously, Amendment 75 would ensure that the finance provisions in Part 3 of the Bill—other than the consequential amendments related to the Scottish rate of income tax and the powers in Clause 37—and the clause related to Antarctica in Clause 14 would come into force only two months after a referendum in which the majority of participants had voted in favour of Parts 1, 2 and 3 of the Act. We have an opportunity for many referenda—or referendums. I am a supporter of referendums in the grammatical sense—not in the sense of holding them—but we are not going down that route at the moment.
As the noble Lord, Lord Browne indicated, the debate quickly moved on to devo-max and other variations on that. I do not intend to follow that, as I think that the amendments are about whether we should hold a series of referendums. On that issue, I remind the Committee what the Calman commission said in paragraph 3.91 of its report:
“Tax devolution can provide accountability. We concluded in our First Report that the devolution of all taxes to the Scottish Parliament would not be consistent with the maintenance of the Union, and this remains our view”.
That was a view that the noble Lord, Lord Sewel, was expressing. I am biased, because I was a member of the commission, but in much of the analysis that it did in trying to devise the balance of taxation between the United Kingdom Parliament and the Scottish Parliament the commission looked at the implications of any proposal for social and economic union. That echoes the speech of my noble friend Lord Maclennan of Rogart. I refer to a social union not only of constituent countries of the United Kingdom but of the many regions within Scotland, Wales, Northern Ireland and England.
The noble Lord, Lord Foulkes, asked about the 1997 referendum and the noble Lord, Lord Browne, has indicated his interpretation. It is difficult, 14 and a half years after the event, to be too prescriptive about what interpretation you may make of it, but it is clear in 1997 that the Scottish electorate gave a clear mandate for a Scottish Parliament with tax-varying powers. Some 63.5 per cent declared in favour in terms of tax-varying powers and 10 per cent more than that on the idea of having a Scottish Parliament. We have to recognise that the debate leading up to the referendum was around a specific proposal for tax-varying powers, plus or minus 3 pence. Equally, many argued that it was an argument on the ability of the Parliament to assume a degree of financial accountability for taxation and spending decisions. It was an important principle, and a mandate flows from the 1997 referendum that the Parliament should have a degree of financial accountability for taxation and spending decisions.
Lord Foulkes of Cumnock
The Minister used the word mandate, but my noble friend Lord Browne of Ladyton used the phrase “partial mandate”, which is a new legal concept. I know that the noble and learned Lord and my noble friend are both distinguished lawyers, but I do not understand the concept of a partial mandate. What does the Minister mean exactly by the 1997 Act giving a mandate? Is it a mandate for any tax powers or for income tax-varying powers alone?
Lord Wallace of Tankerness
The noble Lord did not quite hear what I said. Many people argued that the Scottish Parliament should have a degree of accountability for taxation and spending decisions. As I said, there was a clear mandate that there should be that responsibility or accountability for taxation. That was why I qualified it, because we should not run away from the fact that it was in the context of a campaign that was very much focused on the plus or minus 3 pence. That was why I was not going to read more into it than that Scottish people clearly wanted a Parliament back in 1997 that had accountability for taxation as well as for spending. Nothing since then has suggested that that has in any way changed. Indeed, it is clear that the idea of increased financial accountability for the Scottish Parliament continues to have widespread support in Scotland. It was certainly the thrust of most of the representations made to the Calman commission that there should be increased accountability. My noble friend Lord Steel of Aikwood said in a Donald Dewar memorial lecture that it was not sustainable for a Parliament to exist on a 100 per cent grant voted from another Parliament and that there was a need for greater financial accountability. That is what we seek to deliver in this Bill and we believe that the scheme laid out in the Bill is significant. It offers new powers to the Parliament to match spending powers with responsibility and accountability and does so very much within the broad framework of the 1997 Act. I do not believe that the additional referendums that the noble Lord, Lord Foulkes, proposes are necessary for the powers contained in this.
The noble Lord asked about the mandate. I indicated in response to the amendment moved earlier by my noble friend Lord Forsyth that the manifestos of the Conservative, Labour and Liberal Democrat parties at the 2010 election contained the commitment to implement the proposals of the Calman commission. The fact that these were widely supported, not just in Scotland but in other parts of the United Kingdom, provides a mandate for the provisions within this Bill.
My final comment, echoing what my noble friend Lord Forsyth and others said, is that the main referendum we have to focus on is the one which will secure Scotland's future in the United Kingdom. That would not be assisted by having the plethora of other referendums which would perhaps be the consequence of the amendment in the name of the noble Lord, Lord Foulkes.
Lord Foulkes of Cumnock
My Lords, as I said at the start, the purpose of my amendment was to have a debate on it. There are a number of amendments, as the Minister rightly said, but I am not sure that the one on Antarctica has anything to do with me. I cannot remember tabling one about Antarctica, but I certainly tabled one in relation to Calman or further fiscal responsibility. I will come back to the Minister’s point on that, because there is an inconsistency in what he says. That is the main point that needs to be made.
First, I totally understand what my noble friend Lord Sewel said. He is absolutely right about redistribution, whether it be redistribution within the whole United Kingdom, within England or within Europe. I am sure that my noble friend, who is a distinguished member of the Council of Europe delegation—
“Convention rights and EU law: role of Advocate General in relation to criminal proceedings
(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.
(2) For the italic heading before section 288A substitute “Convention rights and EU law compatibility issues, and devolution issues”.
(3) After that heading insert—
“288ZA Right of Advocate General to take part in proceedings
(1) The Advocate General for Scotland may take part as a party in criminal proceedings so far as they relate to a compatibility issue.
(2) In this section “compatibility issue” means a question whether a public authority has acted (or proposes to act)—
(a) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or(b) in a way which is incompatible with EU law.(3) In subsection (2)—
(a) “public authority” has the same meaning as in section 6 of the Human Rights Act 1998;(b) references to acting include failing to act;(c) “EU law” has the meaning given by section 126(9) of the Scotland Act 1998.”(4) Section 288A (rights of appeal for Advocate General: devolution issues) is amended as follows.
(5) In the heading, before “devolution issues” insert “compatibility issues and”.
(6) In subsection (1) omit “in pursuance of paragraph 6 of Schedule 6 to the Scotland Act 1998 (devolution issues)”.
(7) For subsection (2) substitute—
“(2) Where the Advocate General for Scotland was a party in pursuance of paragraph 6 of Schedule 6 to the Scotland Act 1998 (devolution issues), the Advocate General may refer to the High Court for their opinion any devolution issue which has arisen in the proceedings.
(2A) Where the Advocate General for Scotland was a party in pursuance of section 288ZA, the Advocate General may refer to the High Court for their opinion any compatibility issue (within the meaning of that section) which has arisen in the proceedings.
(2B) If a reference is made under subsection (2) or (2A) the Clerk of Justiciary shall send to the person acquitted or convicted and to any solicitor who acted for that person at the trial a copy of the reference and intimation of the date fixed by the Court for a hearing.”
(8) In subsection (6) after “(2)” insert “or (2A)”.”
“Convention rights and EU law: criminal appeals to the Supreme Court
(1) The 1998 Act is amended as follows.
(2) In section 57(3) (EU law and Convention rights: excepted acts of the Lord Advocate) omit the words after paragraph (b).
(3) In paragraph 1 of Schedule 6 (devolution issues), after sub-paragraph (f) insert—
“But a question arising in criminal proceedings in Scotland is not a devolution issue if it is a compatibility issue within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act 1995 (right of Advocate General to take part in proceedings).”(4) The Criminal Procedure (Scotland) Act 1995 is amended as follows.
(5) After section 288A insert—
“288AA Appeals to the Supreme Court: compatibility issues
(1) For the purpose of determining any compatibility issue an appeal lies to the Supreme Court against a determination in criminal proceedings by a court of two or more judges of the High Court.
(2) On an appeal under this section—
(a) the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.(3) When it has determined the compatibility issue the Supreme Court must remit the proceedings to the High Court.
(4) In this section “compatibility issue” has the same meaning as in section 288ZA.
(5) An appeal under this section against a determination lies only with the permission of the court that made the determination or, failing that permission, with the permission of the Supreme Court.
(6) An application to the High Court for permission under subsection (5) must be made—
(a) within 28 days of the date of the final determination of the proceedings or, as the case may be, the date of the determination on the reference under section 288A(2A), or(b) within such longer period as the High Court considers equitable having regard to all the circumstances.(7) An application to the Supreme Court for permission under subsection (5) must be made—
(a) within 28 days of the date on which the High Court refused permission under that subsection, or(b) within such longer period as the Supreme Court considers equitable having regard to all the circumstances.”(6) Section 288B (appeals to the Supreme Court) is amended as follows.
(7) For the heading substitute “Appeals to the Supreme Court: general”.
(8) In subsection (1)—
(a) after “under” insert “section 288AA of this Act or”;(b) omit “of a devolution issue”.(9) In sections 112(6), 121(5)(a), 121A(5), 122(4) and (5) and 177(8), after “under” insert “section 288AA of this Act or”.
(10) In section 124(2)—
(a) after “Part XA” insert “and section 288AA”;(b) after “appeal under” insert “section 288AA of this Act or”.”
Lord Browne of Belmont
I have no idea where distinguished Members of this House might be at this time of night—but, certainly, those who have sense are not here. My point is that this matter needs to be dealt with within the existing structures, in which we have had confidence for many years and which have been proof to these sorts of challenges in the past. Consequently—and I do not think that on this occasion my noble friend Lord Foulkes will be disappointed in me—I cannot support his amendment. However, the nature of the short debate that we have had has revealed the need for some broader discussion than we get in some newspapers in Scotland and some reassurance from the Civil Service itself that it will be able robustly to address these issues, or at least to explain in a persuasive way that the impartiality of the Civil Service has not been undermined.
Finally, I remind my noble friend Lord Foulkes of Cumnock of the debate on his Amendment 51, which sought to amend Clause 27 by constraining discussions between representatives of the devolved Administration —the Scottish Parliament and Scottish Government—and foreign Governments. He was, on that occasion, persuaded that the strictures that he was seeking to impose on the representatives of the Scottish Government could not have been policed and would not have been realistic. I suspect that if we had time to go over the criticisms of his current amendment, he would have come to that conclusion again. I just remind him of how he was persuaded by my noble and learned friend Lord Boyd on that occasion and trust he will get back into that state of mind when it comes to responding to this short debate.
Lord Wallace of Tankerness
Picking up where the noble Lord, Lord Browne, left off, to be fair the noble Lord, Lord Foulkes, did say in moving his amendment that perhaps it was not necessarily one that he would wish to push. He recognised too that there would be some occasions when it would be appropriate for civil servants in the Scottish Government to engage in issues that were reserved. Indeed, the noble Lord, Lord Sewel, highlighted the fact that with Section 30 orders—one of the early ones was on railways—that sort of engagement would not be unreasonable on that basis.
Nevertheless, the noble Lord, Lord Foulkes, has generated a debate which I am sure will be noted beyond the walls of this Chamber. I echo what was said by the noble Lord, Lord Browne, and my noble friend Lord Forsyth, about the very high quality of the Civil Service, which I have experienced as a Minister in the Scottish and United Kingdom Governments. We now have a position whereby a statutory basis for management of the Civil Service was set out in the Constitutional Reform and Governance Act 2010, an important measure. Civil servants working for the Scottish Government and the Welsh Assembly Government are all part of the United Kingdom Civil Service, and, crucially, the Civil Service Code forms part of civil servants’ terms and conditions of service. The code sets out the core values of integrity, honesty, objectivity and impartiality, and the standards of behaviour expected of civil servants. As the noble Lord, Lord O’Neill, observed, the continuity that civil servants have been able to bring, not least in times of uncertainty following the election in 2010, has been quite remarkable, and one pays tribute to them for that.
It is the job of civil servants to support the elected Government of the day, and the Civil Service Code recognises the fact that civil servants working for the Scottish Government and the Welsh Assembly Government are required to support those Governments. As the noble Lord, Lord Sewel, said, in the area of devolution tensions are inevitable. Likewise, civil servants working for the United Kingdom Government are able to advise their Ministers on matters which are the responsibility of other Governments. It is important that civil servants recognise their obligations under the code and support their Ministers to the best of their ability, even in politically sensitive areas, when Administrations have different policies and different priorities. They must ensure that they remain politically neutral and avoid public advocacy of political views.
In the points made by the noble Lord, Lord Sewel, he grasped the sensitivity of this issue and raised some important points that will not be resolved in this debate or this Bill but are important and have to be considered. I was thinking of an example whereby the Scottish Government have executive devolution responsibilities for renewable energy. Likewise, matters of transmission charges are a responsibility for the UK Government. But it would be very awkward if not impossible for the Scottish Government to make decisions on renewable energy without having some advice and support from their civil servants about implications for transmission charges, so it is not always easy to disentangle respective responsibilities.
Comment has been made on various issues that have been highlighted publicly. The noble Lord, Lord O’Neill, asked about the present Cabinet Secretary, who has been fully cited on these issues and has recently visited Scotland. I am advised that he reiterated that it was appropriate for United Kingdom civil servants to work to support their Ministers in pursuing their objectives, even though that may mean in an era of devolution the pursuit of a different policy aim when Administrations have different objectives. It is important to reiterate once again that one great strength of the Civil Service, which has come through in this debate, is that both of these things—objective support for Ministers and political impartiality—should be taken seriously.
I do not intend to comment on the specific wording used by Sir Peter in his recent communications to staff. Whether or not a particular civil servant has acted in accordance with the code is not ultimately a matter for Ministers to determine; it is an internal issue for the Civil Service, and it would be improper for me to go over that line. What is essential is that civil servants support their Ministers firmly within the parameters set by the Civil Service Code.
Lord Maclennan of Rogart
Will the Minister consider whether the mode of investigation of alleged breaches of these codes of impartiality and independence could be improved? This is a continuing and growing anxiety across a wide spectrum of those involved in public affairs. Other professionals have modes of inquiry which enable the cases to be argued and a decision to be made. I think for example of the General Medical Council, which will decide whether or not there has been an impropriety. A purely hierarchical approach to the Civil Service on matters of this kind is not entirely adequate. We need to discuss, perhaps with the First Division Association, whether it would be encouraged to feel that its service would be greatly strengthened by there being such a procedure for looking at complaints which are made by affected members or the public generally.
Lord Wallace of Tankerness
My Lords, my noble friend raises an important point which goes beyond Scotland. It is a fundamental one and I cannot give him the full response that a profound question such as that demands, but clearly he has put an issue on the table and I am sure he may wish to raise it further.
Lord Foulkes of Cumnock
My Lords, I am grateful to everyone who has participated in this very good debate. It underlines what a number of us have said increasingly, as time goes on: it is a pity that we are debating things of such importance so late on a Thursday night. If we had had it at some other, more appropriate time people such as former heads of the Civil Service could have participated and advised us.
Lord Wallace of Tankerness
My Lords, I listened with interest to the contributions of my noble friend Lord Forsyth and the noble Lord, Lord Browne. We believe that the amendment is unnecessary because there is already a comprehensive code of legislation that makes detailed provision for the Scottish public finance regime. Safeguards and scrutiny are built into that legislation without the need for further provision to engage the Secretary of State, as proposed in my noble friend’s amendment.
Before I outline the relevant legislation, it is worth noting that, as a general principle—I think there is consensus on this—public expenditure must be authorised by statute or be reasonably incidental to that authorised by statute. This principle has been recognised and applied by the courts over many years. As the noble Lord, Lord Browne, said, the Westminster audit and Public Accounts Committee system had functioned well in keeping the Government up to the mark on their expenditure.
The Scottish Government and Parliament are creatures of statute, and expenditure out of the Scottish Consolidated Fund is regulated by the financial provisions in Part 3 of the Scotland Act 1998. This includes Section 65 of that Act, which provides that payments from the Scottish Consolidated Fund must be for the purposes of meeting expenditure of the Scottish Administration—that is, lawful expenditure of the Scottish Administration—or meeting expenditure payable under any enactment. Part 3 of the Scotland Act also paved the way for the more detailed public finance legislation set out in the Public Finance and Accountability (Scotland) Act 2000.
Section 1(1) of the 2000 Act provides that the use of resources by the Scottish Administration and other public bodies or officeholders whose expenditure is payable out of the Scottish Consolidated Fund for any purpose in any financial year must be authorised for that year by the Budget Act and not exceed any amount so authorised in relation to that purpose. This means that any use of resources by the Scottish Government must be for lawful purposes and also have its basis in and be authorised by the Budget Acts that are passed by the Scottish Parliament annually, much in the same way as Finance Acts operate here at Westminster.
In addition, Section 5 of the 2000 Act provides that sums may be paid out of the Scottish Consolidated Fund only in accordance with a credit granted by the Auditor-General for Scotland, and the Auditor-General must not grant such a credit if the proposed payment would not comply with Section 65(1) and (2) of the Scotland Act—that is, if the proposed payment is not for the purposes of meeting the expenditure of the Scottish Administration or meeting expenditure payable under any enactment.
Part 2 of the 2000 Act goes on to make detailed provision in relation to accountability and audit, and gives the Auditor-General for Scotland key functions in relation to auditing the accounts of Scottish public bodies, including directorates of the Scottish Government, and examining the economy, efficiency and effectiveness of these public bodies. Reports produced by the Auditor-General for Scotland in pursuance of these functions are laid before the Scottish Parliament and considered by its Public Audit Committee. The Auditor-General for Scotland is assisted and supported by Audit Scotland in the exercise of his functions in this regard.
I have given that brief description to illustrate the existing comprehensive statutory framework that is in place. The Scotland Act 1998 laid the foundations for that framework and anticipated that the Scottish Parliament would flesh out further detail in legislation, which it subsequently did in what became the 2000 Act. It would be inconsistent with the current scheme of devolution for the Secretary of State to be given a separate regulation-making power along the lines suggested.
My noble friend raised the issue of surcharging, which was also referred to by the noble Lord, Lord Browne. It is true that a system of surcharging was in place in local government regulation until the early years of this century. In Scotland, it was repealed by the Ethical Standards in Public Life etc. (Scotland) Act 2000. It was subsequently repealed in England following criticism in the Nolan committee's report on standards of conduct in local government. Although in theory it was intended to be a means of restitution, it did not achieve that purpose in practice and there were great difficulties in calculating the relevant sums. Therefore I do not believe that it would be an appropriate mechanism to graft on to the robust legislative code that is in place for checking spending by Scottish Ministers.
Both my noble friend and the noble Lord, Lord Browne, mentioned the issue of the referendum. The purpose of the Government’s offer under Section 30 orders is to ensure that a referendum can proceed on a proper legal basis and that the power for the work that needs to be undertaken by the Scottish Government in connection with a referendum would also be on such a basis.
I ask my noble friend to withdraw the amendment before I lose my voice.
Lord Forsyth of Drumlean
My noble and learned friend is losing his voice; Members of the House are losing their stamina; we are dwindling.
Lord Forsyth of Drumlean
Indeed, but I think it might be helpful if my noble and learned friend would indicate how much longer he proposes to go on with this, because the utility of the debate seems somewhat limited as we lose people one by one.
That was a very helpful explanation. It shows how out of date I am that I had not realised that the local government surcharge provisions had been withdrawn. I accept his point. If the Whip is suggesting that we adjourn shortly, I do not wish to interrupt that conversation.
I have one question for my noble and learned friend, which relates to the point on the referendum. I realise that that is a sensitive subject. If, for the sake of argument, the First Minister had decided to go ahead with the referendum without having the relevant legal powers and had spent £10 million on it, what sanction would be applied, and by what mechanism? In other words, can my noble and learned friend translate what he has just read out into what it would mean in practical terms?
Lord Wallace of Tankerness
My Lords, my noble friend indicated that this is sensitive ground. If he cares to read the lecture that I delivered at Glasgow University on 23 January, he will note what I said about the importance of the rule of law and Governments operating within it. Ultimately, if Governments choose to step outside the rule of law in a significant way, as the late Lord Denning said, no matter how high you are, the law is still above you. There would be a question over whether the expenditure would ever be made. Even at Westminster, there have been cases where action has been taken. If my memory serves me correctly, in the Pergau dam case a challenge to expenditure was brought in the courts and a finding made that that expenditure was not justified. I am not aware that any recovery was made from the Ministers who originally authorised the expenditure, but any further expenditure did not proceed.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend. Of course I understand that there is an opportunity in the courts for outside parties to apply for a judicial review or to challenge Ministers who were acting ultra vires. In the context of a referendum being held illegally by the Scottish Parliament, that would be completely disastrous, especially as it would disrupt the whole process and would make it difficult for us to get a resolution on this question one way or the other.
Part of me—perhaps the cynical, less charitable part—thinks that the First Minister would not be particularly disappointed by such an outcome because it would avoid the inevitable result which I believe the Scottish people, with their good sense, will give in a referendum. I understand that. My question really related to whether the Members of the Scottish Parliament who had voted for this or the Ministers who had done it would be subject to any sanction. Is there any process for this? How would it operate?
Lord Wallace of Tankerness
My Lords, I am reluctant to speculate on that, other than to say that I think we will come back to the issue of referendums in our debates next week. The important point at the moment is to concentrate on the positive, which is ensuring that agreement is reached so that the referendum can proceed on a proper legal basis.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend for dealing with this issue so carefully. I shall not press him on the referendum because I appreciate that it is an extremely sensitive matter. I understand the points that he made, which seem to cover the issue behind my amendment.
Perhaps I may say to my noble friend and to my noble and learned friend how much I appreciate the care with which they have dealt with the amendments during this session, which so far has run for 10 hours and more. I am sure they will also appreciate that those of us who tabled amendments for debate have used the time carefully to try to tease out a number of issues. I am looking forward to reading the Official Report over the weekend so that I can study some of the points that were made. On the basis of what my noble and learned friend said, I beg leave to withdraw the amendment.
Scotland Bill
Lord Wallace of Tankerness Excerpts(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Browne of Ladyton
Sorry, I meant my noble friend Lord Foulkes. Maybe I should start again.
The reason I do not support the amendment is not that it gives us an opportunity, as my noble friend Lady Liddell of Coatdyke has indicated, to celebrate devolution—I intend to do a bit of that myself—nor that it created the opportunity for what I thought was an excellent contribution from my noble friend Lord Maxton on the reasons for devolution and why we should support it in principle. But over the course of this Parliament, I have been surprised by the ability of people to make the most detailed and engaging speeches about the concept that has become known as localism while at the same time resisting devolution. I do not really understand how people can hold those two concepts together in their head, as localism is just a form of devolution. As my noble friend Lord Maxton has suggested, we ought to start looking at the powers that we as politicians in government of any description exercise over people. We should look at the appropriate level to exercise them that is relevant to people. Given the experience that the political classes have had in the United Kingdom over the past few years of the deterioration of their relationship with the people they govern and legislate for, getting their relationship with the people of the country back would be very helpful.
I am a passionate supporter of devolution. I do not have anything like the history that some of my noble friends and other Members of this House have, but I have been committed to it for the whole of the shorter political life that I have had, and I was committed to it in my membership of the Labour Party before I had a public life in politics. At some stage in this debate we need to move away from arguments about what other people are doing or personalities—I include the noble Lord, Lord Forsyth, in this; he ought not to be the manifestation of a particular type of politics that we define ourselves against, any more than we should be obsessed by what other people are doing—to a collective narrative for devolution and for the union that describes the sort of United Kingdom that we want for the young people of today in Scotland and their future. That will be, as the people of Scotland demand, a Scotland in which there is significant devolved power, exercised by a Parliament that they elect independently of the United Kingdom Parliament.
We have to recognise that whether we have conditioned people into that expectation because of their dissatisfaction with the previous settlement and the sense of disfranchisement that there was between the people who governed them and the exercise of their votes, whether we have conditioned them into it by their expectations of devolution, or whether they have just been conditioned into it by their espousal in significant numbers of the concept of nationalism, it does not really matter what the motivation is—that is where the people of Scotland are. The sooner we get a collective narrative that describes the sort of Scotland that we want our children or our children’s children to live in, and what powers the people who govern them will have, how they will be able to use them and how they will be accountable, the more chance that we have of preserving the union. I passionately believe that the best way of describing that is in the context of the union.
I come to the issue of the use of the word “devolved”. The people of Scotland do not actually need that word attached to anything. They understand that their Parliament is a devolved Parliament and the Scottish Government are a devolved Government. Whether or not the people who happen to have charge of that Government or that executive power for a particular period have other ambitions and behave in a particular way, as they do, that is designed to give some alternative impression, the people of Scotland are not fooled. The people of Scotland want an Executive who address the issues that Scotland faces, which are manifest to anyone who lives there. We have problems in relation to unemployment, particularly youth unemployment, health, the abuse of alcohol, sectarianism and a lot of issues that have their roots in decisions made by previous generations, such as the movement of people, the death of economic drivers, changes in economic circumstances and the movement of jobs from these islands. There is a whole series of things, over many of which we have not had any real control.
Of course, the people of Scotland do not want a First Minister who is more interested in consorting with people who give the impression that he is somehow much more important than he is. They do not want that and they see through it. We do not need to spend much time describing all that. However, they definitely want politicians who can address the issues and challenges of their everyday lives. They want people to explain to them why these issues are best addressed in the context of the United Kingdom, wider Europe and the world. They understand that.
Traditionally, Scots knew and understood their position in the world. That is why, while there are approximately 5 million people in Scotland who claim to be Scots, there are in excess of 40 million people around the world who claim Scots heritage in one way or another. We are a nation of people who have an understanding and concept of our place in the world. I honestly do not think that we need to spend any more time in this Committee or on the Bill debating these issues. We need to start describing the future of Scotland in the context of devolution and celebrate what we have already achieved by being a template for genuine localism in the United Kingdom.
It has not been perfect. We have a very young Parliament in which people are growing up. Members of the Scottish Parliament who were not politicians at all when we devolved powers to it are becoming significant politicians in the United Kingdom. I simply do not support my noble friend’s interesting amendment, which has led to a short but interesting debate, because the last thing that the people of Scotland need is for their politicians to spend another few hundred thousand pounds on changing the name of their Government.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, can I perhaps be somewhat boring and brief at this time of night by focusing on the amendment? It would insert the word “Devolved” into Clause 30, Clause 37 and Schedule 4, where the reference would become to the devolved Scottish Government. Clause 15 changes the formal name to the Scottish Government from the Scottish Executive. It was felt that the Executive were increasingly widely known as the Scottish Government and that it made sense to amend the Act to reflect public perception and to avoid confusion. However, the fact that the Scotland Act refers to “Scottish Executive” prevents the use of “Scottish Government” in legislation, contracts and other legal matters. Therefore, Clause 15 is designed to prevent inconsistencies in what the Scottish Executive are called by the public and in the legal name.
The noble Lord, Lord Foulkes, wishes to insert “devolved” in front of “Scottish Government”. That is unnecessary and may even lead to further confusion. Altering the name of the Scottish Government to “the devolved Scottish Government” would in no way strengthen the position of devolution. Indeed, it is important to note that no such prefix attaches to the devolved Administrations in Wales and Northern Ireland. It would look very odd and lopsided if it happened just in Scotland.
That said, this has been a useful debate on devolution. I will not go into all the highways and byways but some important points were made. Some of us who very much support what has happened over the past 12 years sometimes miss a trick because so often, ahead of the debates in 1997 and the referendum leading up to that, we talked about devolution in terms of the Scottish Parliament dealing with matters related to the domestic agenda of the people of Scotland and the United Kingdom Parliament being responsible for macroeconomic policies, defence, foreign policy, social security and pensions. Although we will undoubtedly debate where the boundaries should be—the Bill seeks to address some of these issues—I nevertheless believe that the idea of a Scottish Parliament within a United Kingdom still commands the support of the vast majority of the people in Scotland. I hope that the noble Lord will withdraw the amendment.
Lord Foulkes of Cumnock
I am convinced by the eloquence and brevity of both Front Benches. I beg leave to withdraw the amendment.
Terrorist Asset-Freezing etc. Bill [HL]
Lord Wallace of Tankerness Excerpts(13 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Davies of Oldham
My Lords, on behalf of the Opposition, I too would not dream of seeking to put myself in the same category of argument as the noble and learned Lord and the noble Lord who have spoken on these issues. The Minister has an argument here that he will need to respond to effectively. We in the Opposition thought that most of these issues were covered effectively on Report by the Minister. Like the noble Baroness, Lady Hamwee, who has expressed her reservations about other aspects of this Bill in the past, we see no argument for this amendment at present. Therefore, if we were to move to a Division, the Opposition would support the Government if, as I anticipate, they present an accurate and effective case for the rebuttal of this amendment.
Lord Wallace of Tankerness
My Lords, I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for introducing this debate. I am also grateful to other noble Lords for their contributions. I am particularly grateful to the noble Lord, Lord Davies, and my noble friend Lady Hamwee for indicating that, subject to what I may say, they are generally satisfied with the position which the Government have adopted.
This amendment goes back to the debate we had on Report about the scope of Clause 2 and whether it should allow the Treasury to designate non-UK persons who are outside the United Kingdom. We are grateful to the noble and learned Lord for having written to my noble friend Lord Sassoon, following our debate on Report, to explain his concerns with the clause as drafted, and for having taken the opportunity to discuss the matter in some detail with officials before he tabled his amendment. I readily recognise that this amendment stems from the noble and learned Lord’s very strong belief, which he clearly expressed in moving his amendment, that it is the right and responsibility of each country to make laws that affect their nationals and those within their jurisdiction. Generally, we would not dissent from this principle but, if the House will permit me, I will explain why we cannot accept the noble and learned Lord’s amendment.
The noble and learned Lord referred to United Nations Security Council Resolution 1373, which requires that states shall,
“Prohibit their nationals or any persons … within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts”.
I think it is clear that a key aim of Resolution 1373 is to prevent acts of terrorism anywhere in the world. To that end, the definition of terrorism in this Bill is borrowed from the Terrorism Act 2000 and is used in other legislation. The definition makes it clear that terrorist activity anywhere in the world against persons or Governments falls within the scope of the legislation.
It is also clear that Resolution 1373 puts an obligation to prevent terrorist finance not only on the state where particular terrorists and terrorist groups reside but on the states from which the funding of those terrorists may originate. If, for example, a foreign terrorist holds assets within the United Kingdom or relies on funding coming from the United Kingdom, it is not only right but essential that the United Kingdom should be able to freeze those assets and prevent funds being transferred for terrorist purposes. That is what the language of United Nations Security Council Resolution 1373, which I have just quoted, clearly requires.
Relying purely on the country where the terrorist resides to take action has two fundamental drawbacks. First, that country cannot control funds or other assets that may be available for use overseas by the terrorist. This is why the Security Council resolution is worded as it is. Secondly, we know, as was acknowledged in our short debate, that terrorists are often based in countries where the authorities cannot or will not take action: for example, in failed states or in states where the authorities turn a blind eye to terrorism.
Clause 2 therefore provides the Treasury with a power to identify those whom we consider to be terrorists, based on activities that could take place anywhere in the world. The effect of the designation is twofold. First, any funds and economic resources within the United Kingdom of such persons are required to be frozen. It will be a criminal offence for anyone in the United Kingdom to deal with such assets without licence from the Treasury.
Secondly, persons in the United Kingdom will be prevented from providing any funds or economic resources to designated persons. I shall try to make it clear; the fact that some persons designated by the Treasury are ordinarily not in the United Kingdom does not give extra-territorial effect to the provisions. The effect of listing such a person is to freeze only their United Kingdom assets and prevent persons within the United Kingdom or United Kingdom citizens abroad assisting them. It has no further effect.
The noble and learned Lord, Lord Lloyd, asked what would happen if we were to designate a terrorist who was in France. He suggested that it might lead to a breakdown of international comity. That we are taking these measures in pursuance of a United Nations Security Council resolution indicates where the balance of international comity may lie; it is in United Nations member states taking the resolution and implementing it. We have not so far designated a French national. However, if we were to do so, I would certainly expect close co-operation between United Kingdom and French authorities in such a matter. The French might indicate to the United Kingdom that a French national was a terrorist of concern to them, whose assets they wanted to freeze. Working with French counterparts, the United Kingdom’s law enforcement agencies would identify whether that suspected terrorist held assets in the United Kingdom that the French Government then wished to be frozen. The French would provide United Kingdom authorities with the relevant evidence to support a UK designation, showing that there was at least a reasonable suspicion that person X was involved in terrorism and that a UK asset freeze was necessary for protecting the public from the risk of terrorism.
Finally, a Treasury Minister will consider the case and, if the legal test that is set out in this Bill is met, will designate person X, with the Treasury taking the necessary steps to inform the financial sector and to freeze person X’s assets within the United Kingdom. We accept that other countries may use domestic asset-freezing powers to designate United Kingdom nationals, but again we would expect this to be done in co-operation with United Kingdom authorities.
The power in Clause 2 relates to designated persons, including non-UK nationals; it is not a radical departure. Sanctions legislation is by its very nature often targeted at persons outwith the United Kingdom, but the prohibitions bite only on those in the United Kingdom or when United Kingdom nationals are elsewhere. An example is the prescription regime under the Terrorism Act 2000 and this legislation. There is a list of prescribed groups, almost all of which operate outside the United Kingdom, but the effect of proscription is to prohibit persons in the United Kingdom from membership of such groups or from providing material support to such groups. As with our Bill and sanctions legislation generally, the target is outwith the United Kingdom but the prohibitions apply solely in relation to persons in the United Kingdom or UK citizens operating abroad. That accords with the fundamental jurisdictional principle that the country should normally legislate to criminalise only acts committed within its territory or by its citizens abroad. Here the acts that are being criminalised are the provision of finance for the purposes of terrorism.
I understand the noble and learned Lord to be concerned about interfering with the sovereignty of other states. I hope that he can see from an indication of how we might act in the event of getting intelligence or representations from France that this measure would not offend another state but would promote co-operation. At the risk of repeating myself, the effect of a designation is to freeze only those assets of a designated foreign national that are within the United Kingdom, and we believe that that is the sensible way in which to proceed.
Clause 1(b) refers to persons listed in Council Regulation 2580/2001. This regulation is the means by which the European Union implements Resolution 1373; it does so by requiring member states to identify persons against whom the state has taken action, for example by way of a domestic asset freeze. Persons put forward and included on the list are then subject to financial sanctions throughout the EU. The reference to “persons” here cannot be confined to those within the UK and the same term cannot have different meanings in the same clause. The EU regime emphasises, I think, the essential territoriality of an individual member state’s actions, and the need for each member state to take action against assets in their country and to prevent those in the country from providing material support to terrorists.
The noble and learned Lord referred to Clause 33, which provides for cases in which UK nationals and UK incorporated bodies commit an offence outside the UK. This is not an unusual extension of the application of a statute, and I do not think—nor did he suggest—that it is in any way controversial. The purpose is straightforward—to prohibit UK nationals and companies from committing acts abroad that would be offences under the Bill if committed here.
The noble Lord, Lord Pannick, asked whether we should be able to designate overseas persons only if they hold assets in the United Kingdom. I have answered that. The asset-freezing regime not only freezes assets but prevents persons in the United Kingdom making payments to a designated person. That is why we need to be able to designate overseas persons, even if they do not hold funds in the UK, so that we can prevent people in the United Kingdom or UK persons overseas providing designated persons with funds.
In summary, we believe that Clause 2 does not limit the Treasury to designating only persons who are in the UK, and nor should it. While we have listened carefully to the noble Lord’s arguments today, on Report and in the exchanges that he has had with my noble friend, we are satisfied that the wording of Clause 2 as it stands is sufficiently clear in this regard. It does not make the provision extra-territorial. Clause 2 merely identifies those persons involved in terrorism whose assets persons in the UK cannot deal with and whom persons in the UK cannot assist by providing funds or economic resources.
For this reason, the Government cannot support the amendment, and I urge the noble and learned Lord to withdraw it.
Lord Lloyd of Berwick
My Lords, I am extremely grateful for that full response. The problem remains, I fear, the meaning of the word “person” in Clause 2. Somehow underlying the Minister’s reply is the idea that a Treasury Minister has a power to designate assets, but of course the power can designate only persons. The Minister dealt with that clearly in relation to the example of us suspecting a French terrorist; indeed, he gave the same answer as I did. The way that it is meant to work is as follows: if we suspect someone in France of being a terrorist, we approach the French authorities and ask them in the spirit of co-operation—as the Minister rightly says, that underlies all this—to look at this, and the French will agree. If they come back and say, “Yes, we think you’re right”, they will designate the terrorist in France. There is nothing wrong with that. That is what Regulation 1373 envisages. What it does not envisage is us, without consulting the French, simply designating a Frenchman resident in France. All the cases show that a general word such as “person” in this clause, whatever may have been the Government’s intention, does not mean—I respectfully suggest—what they think that it means.
I will look closely at what the Minister has said and, more important, I hope that others will look closely at what the Minister has said and what I have said. I hope that in due course they will reach what I believe to be the correct result, which would require only a small amendment to Clause 2. That having been said, I beg leave to withdraw the amendment.
Terrorist Asset-Freezing etc. Bill [HL]
Lord Wallace of Tankerness Excerpts(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Pannick
My Lords, I support the amendments, in particular Amendment 20A. The Treasury has no interest whatever in controlling expenditure on legal advice and legal representation; its only interest is to ensure that the assets are not used for terrorist purposes. It is important that the uninhibited right to seek legal advice and to obtain legal representation is stated clearly in the Bill and that it is not left to Treasury concession.
Lord Wallace of Tankerness
I thank my noble friend Lady Hamwee for dealing with licensing, which was an important part of our deliberations in Committee. Amendments 19, 20 and 20A would write expressly into the Bill a duty on the Treasury, if requested, to issue licences to allow the designated person and his dependants to access sufficient funds and economic resources to meet reasonable living costs and to pay for legal representation. In the case of living-costs licences, the amendment would place a duty on the Treasury to deal with applications urgently.
As my noble friend made clear, the amendments reflect concern that the Bill does not include a sufficiently clear obligation on the Treasury to issue licences for these purposes and that designated persons and their families are reliant on the good faith or good practice of the Treasury to grant such authorisations. I recognise the concerns that have prompted the amendments. It goes without saying that a designated person must be in a position at the earliest possible opportunity to access funds to meet his or her and their dependants’ living costs and to be able to pay for legal advice and representation in relation to their designation.
However, we do not think that to include in the legislation an obligation to issue such licences is necessary, since the obligation already exists by virtue of the Treasury’s duty to act in compliance with the Human Rights Act. Under Section 6(1) of that Act it would be unlawful if the Treasury acted in a way which is incompatible with a convention right. So, in response to the point made by my noble friend, it is not a question of acting with good grace but of acting under a requirement—an obligation—on the Treasury. It means that the Treasury must issue any licence that may be required to ensure that the affected person’s convention rights are not unlawfully infringed by the imposition of an asset freeze.
In order to secure compliance with this obligation on the Treasury, it routinely issues licences immediately on designation so that designated persons from the outset have access to frozen funds, including all social security benefits to which they are entitled, to meet their day-to-day living expenses. There is no requirement that such licences be requested by the designated person; they are issued automatically as a matter of course. The licences that the Treasury issues are broad and do not restrict the designated person’s access to funds necessary to meet only reasonable living costs. The only controls imposed are those necessary to protect against the risk of funds being diverted to terrorism.
In addition, a designated person or any other affected party may request a licence at any time if access to funds or economic resources is required which is not already authorised under the terms of a licence issued immediately upon designation. The Treasury’s practice is to treat any request for such licences as a matter of priority and, in particular, to deal urgently with requests where the failure to act quickly would result in hardship to the designated person or their family. It is therefore not necessary to impose an express duty on the Treasury to treat such applications as a matter of urgency as the Treasury already has a legal obligation to act in a way which is compatible with the affected person’s convention rights, and it is accordingly the Treasury’s established practice to do so.
My noble friend and the noble Lord, Lord Pannick, attested to the importance of legal expenses. Again, the Treasury is obliged by virtue of human rights law to ensure that it does not act in a way that would impede an affected person’s access to legal representation. To ensure this, there is already in place a general licence permitting the Legal Services Commission to pay legal aid funds to solicitors representing those designated persons who are eligible for legal aid. In addition, the Treasury will ensure that an additional general licence will be issued which authorises third parties to meet the legal expenses of designated persons by paying their lawyers.
There is an overriding obligation on the Treasury to issue licences for legal expenses. Therefore, again, it is not necessary to write such a duty into the Bill. I assure my noble friend and your Lordships’ House that the absence of such an express duty would in no way prevent an affected person from challenging the Treasury in circumstances where a Minister decided to impose a particular condition in a licence, delayed issuing the licence or refused to issue it at all. I repeat to my noble friend that this is not simply a matter of Treasury practice, but of the Treasury honouring the legal obligations upon it.
Lord Pannick
If I understood him correctly, the Minister mentioned legal aid for the designated person and allowing third parties to fund legal representation for that person. My concern is when the designated person has assets of his own which he wishes to spend on his legal representation. I should like to have an assurance that the Treasury will allow the designated person to use as much of his own legal resources as he thinks appropriate in his own legal defence provided that the payment, as Amendment 20A states, is to,
“a person subject to regulation as a legally qualified person”.
Lord Wallace of Tankerness
I said that in addition to a general licence which already exists with regard to the Legal Services Commission paying legal aid funds to solicitors representing designated persons who are eligible for legal aid, the Treasury will ensure that an additional general licence will be issued which authorises a third party to meet the legal expenses of designated persons by paying their lawyers.
The noble Lord, Lord Pannick, raised the issue of whether the person’s own assets might then be used. That would be distinctive from a general licence which, by definition, cannot relate to that of an individual. As I indicated earlier, licences issued in respect of individuals are intended to impose controls that are necessary to protect against the risk of the funds being diverted to terrorism. That is the test. Therefore, an application for a licence—it would have to be a licence for an individual with regard to his own individual circumstances and not a general licence to which I have already referred—would have to be looked at by the Treasury against that test to ensure that that there was not a diversion of funds to terrorism.
Lord Pannick
I am sorry to test the Minister's patience, but if I understand him—please correct me if I am wrong—he is saying that there may be circumstances in which the Treasury would restrict the amount of money that the person who is designated—his own money—may be able to use for his own legal representation. If I understand the Minister correctly, that is because of the risk of the money being diverted to terrorism. But surely, if the money is going to a person who is regulated as a legally qualified person, the Treasury would have to suspect that a solicitor or barrister is involved, in some way, in terrorism. That is a very serious matter that should be taken up with the proper regulatory authorities and not be the subject of restricting the designated person from obtaining the legal representation that he seeks.
Lord Wallace of Tankerness
My Lords, in principle, it would be possible to allow people to spend their own funds on legal expenses. It does not detract from the possibility of a licence being issued, but there are practical reasons why it is not possible to allow frozen funds to be used to pay legal expenses. For example, there would be circumstances where banks would be put in a position of having to determine whether a particular transaction was for legal expenses or not. The Treasury allows this matter to be dealt with by way of licence with the appropriate conditions attached. That would be the way to deal with an individual licence on an individual application and a person seeking to use his own funds as opposed to and distinct from the general licence that exists for legal aid, which I have indicated would be issued with regard to the third-party circumstances that we have already discussed.
Lord Lester of Herne Hill
Will my noble and learned friend tell the House what legal remedy there would be if, in spite of good intentions, the reality was that there was an unfair, unnecessary and disproportionate interference with the right of access to court as a result of the way in which the Treasury was exercising its discretion?
Lord Wallace of Tankerness
My Lords, as my noble friend is aware, provisions within the Bill allow for a decision not to issue a licence with suitable conditions to be challenged. If I may say, this is a circular argument—how do you get the funding to challenge it?—but it is not without remedy.
I was asked whether there would be any restriction on the volume of funds. If the funds are required specifically for the purposes that the noble Lord, Lord Pannick, indicated, that would not lead to a restriction. This is best dealt with, and would be dealt with, on the basis of an individual licence application. Obviously, there would be a remedy there if the person was not satisfied with the terms of the licence that was issued.
The other amendment to which my noble friend spoke relates to the position under Clause 27 for a person affected by a Treasury decision other than a designation-related decision to apply to the court not only for the decision to be set aside but for it to be varied. The amendment would in particular allow decisions relating to licence conditions—the very issue that I have been discussing with my noble friend Lord Lester—such as limits on the amount of cash a designated person could access per week to be varied by the court. The Government agree that the court should have sufficient powers to require the conditions of a licence to be varied so as to ensure that the designated person has sufficient access to funds and economic resources subject to appropriate conditions, but we also believe that the amendment is unnecessary.
Under Clause 27, the court can set aside any licence-related decision made by the Treasury. For example, if the court considers a designated person should be entitled to access a larger amount of cash per week than he is permitted to withdraw under the cash limit in the licence, the court can set aside the Treasury’s decision to impose that cash limit. While it would not be open to the court expressly to write conditions into the licence or rewrite existing conditions, the Treasury is obliged to take into account the reasons that the court gives for striking down a condition in the licence. In practice, the Treasury has immediately revised licences, taking account of the court’s view on what the licence should contain. Therefore, I hope that my noble friend will not press her amendments on the assurance that these are matters not just of good practice but of obligation, which the Treasury obviously takes very seriously.
Baroness Hamwee
My Lords, with that last comment, my noble and learned friend anticipates my saying that I would not wish to see this matter rest on practice but that it is a matter of obligation.
I understood my noble and learned friend to say that a licence to use funds for legal advice or representation is in part to protect the banks. I find that difficult to follow, because I am asking for a licence; I am not asking for the banks to be allowed to release funds simply on the say-so of the designated person or third party that this is the use to which the funds would be put. I make that point quite seriously, although I will not ask my noble and learned friend to come back on it if he does not want to at this point. However, which article or articles does he rely on with regard to subsistence costs? The right to a fair trial leads one very directly to the point of legal advice and representation. It is probably, although I do not want to put words into the Government’s mouth, a combination of other articles that takes us to subsistence.
Lord Wallace of Tankerness
My noble friend is right to say that there are other articles. The right to a fair trial is the obvious one, but there is also the right to use one’s resources under Article 1 of Protocol 1. Also used in these contexts sometimes is the right to family life under Article 8, which might well be relevant in circumstances such as these.
Baroness Hamwee
I am grateful to my noble and learned friend. Although I remain a little uneasy—that is not his fault—I beg leave to withdraw the amendment.
Baroness Hamwee
This was another matter that I raised in Committee, and I have been grateful for the opportunity to discuss it with my noble and learned friend since then. We agreed that I would table an amendment again to enable the Government to give a slightly longer explanation than they were able to at that date.
The amendment would protect a person who does not wish to incriminate himself. The exception of reasonable excuse would apply in this situation; it would be reasonable for a person to say that he will not comply because of the right not to self-incriminate. But this is a general defence to something that is really very specific, and if the Government can take us through their thinking it would be very helpful. On the question of what is reasonable in particular circumstances, one would have to analyse the circumstances so carefully and to such a degree that the concern about self-incrimination might be trumped. That is why a provision that was—as I described it—more straightforward, although longer, would be appropriate.
Lord Wallace of Tankerness
Again, my Lords, I am grateful to my noble friend for raising this point, which we dealt with in Committee and which we have had an opportunity to discuss further. I hope that I can persuade her that the Bill does not really provide the ace of trumps up the sleeve; rather, it recognises—as I think would this House—the importance of the privilege against self-incrimination.
The amendment would replace a qualified requirement to provide information in the absence of reasonable excuse with an absolute obligation, but would provide that such information could not be used in subsequent criminal proceedings. Again, as my noble friend indicated in moving the amendment, the purpose of doing so would be to protect the privilege against self-incrimination.
In Committee, I confirmed to my noble friend that the privilege against self-incrimination was not overridden by the Bill. In particular, I clarified that if a person was concerned that compliance with an information request would infringe that person’s right against self-incrimination, that concern itself would form a reasonable excuse, under what is now Clause 22(1)(a), for refusing to comply with that request.
I appreciate that the amendment is prompted by a concern that “reasonable excuse” operates as a defence, and that it is inappropriate to rely on a general defence in such a fundamental area. I readily appreciate the nature of this concern, but it is misplaced as it is founded on a misunderstanding of how the prohibition in Clause 22(1)(a) will operate. In order for the offence to be committed, the person must have no reasonable excuse for failing to provide the information. If the person decided that providing the information would infringe his or her right against self-incrimination, he or she would have a prima facie reasonable excuse for withholding it and would not have committed the offence.
The onus would not be on the person to raise a defence based on the privilege against self-incrimination. It would instead be on the prosecution to show that the person’s reliance on that privilege was not reasonable in the circumstances. In practice, no prosecution would be brought unless the prosecution considered that there was a reasonable prospect of establishing this, and then it would be incumbent on the prosecution to prove that beyond reasonable doubt. I hope that this further reassurance will permit my noble friend to withdraw the amendment.
Baroness Hamwee
My Lords, with reference to where the onus lies, the Minister’s reply is particularly helpful; I am glad to have the assurance that it lies on the prosecution in that situation. I beg leave to withdraw the amendment.
Lord Bach
Briefly, I can say only to the noble and learned Minister: plus ça change. Here I am, supporting in what I am about to say the suggestion made by the noble Lord, Lord Pannick, in his amendment. I do so in rough terms; I am not in any way inviting him to test the opinion of the House on it today. This is surely a matter that can be dealt with in some more satisfactory way than that. The noble Lord seems to have a point, backed up as he is by the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern. I ask the Minister this simple question. Presumably he will argue that,
“such order as it considers appropriate”,
includes damages. If the answer to that question is yes, can there be any reason not to put that in the Bill in express terms, for the reasons stated by the noble Lord, Lord Pannick?
Lord Wallace of Tankerness
My Lords, in responding to an amendment moved by the noble Lord, Lord Pannick, I feel somewhat guilty as I do not feel able to go so far as my noble friend Lord Sassoon in offering concessions. However, I welcome the noble Lord’s amendments as they have given us the chance to have a very useful discussion. Notwithstanding the points that have been made about the adequacy or inadequacy of Pepper v Hart statements in providing clarity, I hope that the noble Lord, Lord Pannick, will feel that sufficient clarity is provided.
This amendment relates to the debate that we had in Committee about the avenues available to a person who has suffered loss as a consequence of an asset freeze to obtain compensation. During that debate, the noble Lord, Lord Pannick, the noble and learned Lord, Lord Davidson of Glen Clova, and my noble friend Lady Noakes were particularly keen for the Government to indicate their position on this point, and I shall try to do so.
The amendment of the noble Lord, Lord Pannick, would provide that the court can, in relation to appeals by designated persons against designation-related decisions, award damages if and to the extent that the court thinks it just and appropriate to do so. The noble Lord has tabled the amendment following our discussion on the scope of the orders available to be made by the court under Clause 26(3). In that discussion I drew the Committee’s attention to that provision and indicated that,
“it would be possible, in connection with a successful challenge against the designation, for the person to claim damages, and it would be open to the court to award damages to a successful applicant”.—[Official Report, 6/10/10; col. 193.]
I was not suggesting—as my noble friend queried; and I am grateful for the opportunity to set the record straight—that it would be open to the court to award damages,
“simply for the invalid nature of the designation”.
As the noble Lord rightly observed then, and repeated tonight, that would be contrary to,
“the general principle of … administrative law … that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action”.—[Official Report, 6/10/10; col. 194.]
It is not the Government’s intention to overturn that principle. However, it is the case that a designated person appealing a designation-related decision under Clause 26 can in certain circumstances make a damages claim in connection with that appeal. I apologise to your Lordships’ House if I did not make that distinction clear.
To clarify the effect of Clause 26(3), the orders that a court may consider appropriate in connection with an appeal of a designation could include, for example, an order to revoke the designation, or the renewal of it, or an order to uphold the designation. It would be open to a designated person to include in these, or subsequent, proceedings claims for damages under the Human Rights Act, as I believe my noble friend Lord Lester indicated, such as breach of the person’s right to enjoyment of property under Article 1 of Protocol 1 as a consequence of being invalidly designated, or—as I indicated in relation to the previous amendment— breach of Article 8, the right to respect for private and family life.
There have been relatively few legal challenges to designations, but where such challenges have been made a number of them have either included Human Rights Act damages claims or have given rise to separate Human Rights Act damages claims. Those claims which are being pursued are at a very early stage and as yet there has been no judicial determination of any of them. It may also be possible—although I appreciate that this would be more difficult—to found claims in tort or delict.
My noble friend Lady Noakes raised in Committee concerns about persons other than the designated person suffering loss as a result of a designation. Nothing in this Bill is intended to change the existing grounds—whether as a matter of the law of tort or delict or under the Human Rights Act—on which anyone affected by an asset freeze, whether the designated person, such person’s spouse or other family member, or any other third party, can claim damages against the Treasury if they believe that they have suffered loss as a consequence of an unlawful asset freeze.
In relation to loss suffered by both designated persons and persons other than designated persons, I should like to make one further crucial point. The purpose of the asset-freezing regime is to prevent the diversion of funds and economic resources for terrorist activity. It is the Treasury’s policy as far as is possible and consistent with that aim to license the use of funds and economic resources. The licensing regime successfully mitigates the impact on designated persons, their families and other third parties of an asset freeze. The general presumption is that a licence will be granted unless there is a risk that the transaction carries a risk of funds being used or diverted for terrorist purposes. Where third parties are affected, the power to grant a licence is exercised so as to ensure that, so far as is possible, no loss is suffered by any third party. For example, where payments to a family member or other third party would be prohibited because the designated person would thereby receive a significant financial benefit—for example, the discharge of a debt owed by the designated person—the Treasury can license such payments. Similarly, payments by a designated person to a third party in respect of, for example, contractual debts owed by the designated person to that third party are capable of being licensed.
I have heard the request that it would be useful to put something in the Bill. My concern is that although that might to some extent allow the individual to look at it and not necessarily contact a lawyer—however, I rather suspect that in many cases a lawyer will be quickly contacted—it might not cover the ingenuity of lawyers. If you put something in the Bill, it might seem to be limiting whereas lawyers might use their ingenuity to come up with other grounds under the Human Rights Act under which a claim could be made in the context of appeal proceedings or other proceedings. I shall certainly reflect on what has been said but I—
Lord Lester of Herne Hill
I am very grateful to the Minister. However, I would still like him to explain the practical disadvantage in accepting the amendment of the noble Lord, Lord Pannick. Would it not be of great advantage to the principle of reasonable legal certainty if this part of the Bill stated the law as it is? If not, what other means can the Government think of to bring home to people what the true legal position is, without having to consult a lawyer?
Lord Wallace of Tankerness
My Lords, my concern is that it would not necessarily provide the degree of certainty which my noble friend seeks. It could leave open all sorts of possibilities as to the grounds on which claims might be sought. However, important points have been made in the debate. I wish to reflect on them without commitment, but I am concerned that the proposed remedy might raise as many questions as it is intended to resolve. Therefore, I hope that the noble Lord will withdraw his amendment.
Lord Bach
My Lords, I was very well assisted by the report that the committee brought out, and by the paragraphs referred to by the noble Lord, Lord Lester. The Government of whom I was a member set up the special advocate system in order to deal with what was and remains a very difficult issue around terrorism. However, we recognise that there are difficulties with it that any Government will have to deal with in due course. On balance, we do not think that the Bill is the appropriate vehicle to make sweeping changes of principle on the issue of the special advocate system.
I have a couple of questions that I should like to ask. This may be a short debate, but the issue may be one of the most important that we debate this afternoon. As my noble friend Lord Davies of Oldham said in an earlier debate, this matter calls into question the balance between civil liberties and security—it is right at the heart of that argument. Any Government of whatever complexion will have to deal with this, day by day and month by month. I take the point made by the three noble Lords who have spoken already that it is difficult to understand why the Government argued in Committee that the regime for control orders is not the same as that for asset freezing, particularly as it relates to the special advocate system. In the end, it seems that the same rules will have to apply, whatever they are. I hope that the Minister will deal with that point when he sums up the debate. What are the differences between the two regimes, especially in relation to the special advocate system?
I am aware that there is to be a Green Paper on this vexed issue in 2011. Will the Minister confirm that that will not be December 2011, as presently planned, but more like the middle of the year? I also understand that there is likely to be a case, perhaps on point, that the Supreme Court will be asked to decide, and which will be heard very early next year, with the judgment expected in good time for the Green Paper.
Those are my questions. Despite what I have said, I hope that the noble Lord will not press the amendment. It needs some careful consideration. However, the points that have been made are powerful and must be dealt with at some stage.
Lord Wallace of Tankerness
My Lords, as the noble Lord, Lord Bach, indicated, this has been a short but fundamentally important debate. As he also indicated, it focuses on the challenge and dilemma of balancing the interests of liberty and those of security. I know that the noble Lord, having relatively recently been in government, had to do that himself. These are not easy issues to determine. It is important to recognise, too, that they are issues with which the Government constantly wrestle. It is fair to say that in its preliminary report—I welcome the fact that we have that report to help us today—the Joint Committee on Human Rights acknowledged the amendments that were moved in Committee and welcomed the Government’s willingness to consider the human rights issues raised during the debate at Second Reading and their amendments to the Bill, which are designed to improve the balance between national security and human rights in the asset-freezing regime. This is an issue of which Ministers are acutely conscious as they constantly try to ensure that the balance is correct.
Amendment 23, moved by the noble Lord, Lord Pannick, seeks to create a new subsection within Section 67 of the Counter-Terrorism Act 2008 that would apply to the content of the court rules about disclosure in financial restrictions proceedings and to court rules made in relation to challenges to decisions under the Bill. The amendment would require the court rules, which are to be made initially by the Lord Chancellor for England and Wales and Northern Ireland, to ensure that the Treasury provides sufficient open disclosure to enable the designated person to give instructions to the special advocate. As has been reflected in some contributions to the debate, the form of words is based on the European Court of Human Rights judgment in A, which was applied by your Lordships’ Judicial Committee in AF and Others to the stringent control orders that it was considering. The effect of the amendment is to apply AF (No. 3) to challenges to final designations.
As was foreshadowed in the letter of my noble friend Lord Sassoon to the committee, the Government do not support this amendment, and I shall explain why. I start by stressing a fundamental point on which I know there is common ground all round the House. Designated persons must have the full protections afforded to them under Article 6 of the European Convention on Human Rights; namely, the right to a fair hearing.
Section 67(6) of the Counter-Terrorism Act 2008, which is imported into the regime for dealing with asset freezing, is absolutely clear that nothing in that section, or in rules of court made under it—they include provisions relating to the Treasury’s disclosure of information only to the court and a special advocate—requires the court to act in a way that is inconsistent with Article 6 of the ECHR. It is important to emphasise that the judge also has an important role to play in challenging the closed material and in weighing the impact that non-disclosure has on the fairness of the proceedings. The court determines whether material should be withheld, and the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest is disclosed.
The Government and the legislation are absolutely clear that Article 6 rights apply in full to asset freezing. Therefore, it would be inaccurate to say—and I do not think that this was suggested—that advocates of the amendment support Article 6 rights while the Government do not. To make it clear, not only do the Government support Article 6 rights but those rights are there in the Bill by reference to the Counter-Terrorism Act 2008.
I hope that there is broad agreement that the legal position regarding the application of AF (No. 3) principles to asset freezing has not been fully determined by the courts. That is probably a matter of fact but it is clear that different views are being expressed in the House this evening regarding the applicability of the decision in AF (No. 3) to asset-freezing designations. Of course, the courts have determined—indeed, it was determined in the case itself—that AF (No. 3) principles apply to stringent control orders and to financial restrictions proceedings under the Counter-Terrorism Act 2008. That was the subject matter of the case to which the noble Lord, Lord Pannick, referred. However, the courts have not yet determined that AF (No. 3) principles apply to asset-freezing cases. The Government’s view is that it would certainly be wrong to say that legally there is no room for doubt on this.
I shall now seek to address the points that the noble Lord, Lord Pannick, made in moving the amendment. When the Bill was discussed in Committee, I indicated that in the Government’s view the principles do not apply to asset freezing because, although I do not in any way wish to minimise their significance or importance, asset freezes do not have the same impact on individuals as stringent control orders, nor are they as wide-ranging in their financial and economic impacts as decisions to impose financial restrictions under the Counter-Terrorism Act 2008. Perhaps I can assist the noble Lord, Lord Bach, who asked me to identify some of the distinctions. Asset freezes are not of the same nature or magnitude of interference, because they restrict the rights to property and indeed can be modified or alleviated by licences, whereas control orders restrict people’s liberty, communications and movement. As I said, I do not in any way diminish the seriousness of asset-freezing designations but, in our argument, their impact is not of the same magnitude as that of stringent control orders. However, it is open to the courts to determine whether the Government’s position is to be challenged.
It is certainly possible to draw a distinction in the case of Kadi, which was determined by the European Court of Justice. That judgment concerned the process followed by the European Commission in listing Kadi, and the Government would certainly argue that it had no direct bearing on the process to be followed by the United Kingdom Government in applying asset freezes domestically against persons believed to be involved in terrorism. We believe that the European Court of Justice judgment in Kadi is separate from the question of whether AF (No. 3) principles should apply to asset freezes. Likewise, in the Bank Mellat case, which was determined in May this year, the court’s rulings on disclosure were specific to the cases concerned and there was no general ruling on whether AF (No. 3) should apply in asset-freezing cases. The court ruled that the application of AF (No. 3) applied in the context of financial restrictions imposed against the Iranian bank, but the circumstances of such financial restrictions, where the Treasury issued a direction that the UK financial sector must cease dealings with the bank, were very different from those where an individual is subject to an asset freeze because of his alleged involvement in terrorism. Therefore, I do not think that a direct read-across of the court’s ruling is right, applying the specific circumstances under consideration to the freezing of terrorist assets, where different considerations may well apply.
Lord Lester of Herne Hill
I apologise for interrupting the noble Lord, but does he not agree that his valiant attempt to distinguish the control order regime and the asset-freezing regime runs against the following difficulty? The European Court of Justice in Kadi (No. 1) and Kadi (No. 2) took an extremely robust position with regard to a UN framework, emphasising the extreme deprivation that could result from asset freezing and the need for adequate safeguards. The Court found that the European Commission’s second attempt to produce adequate safeguards had failed. Would that not give advocates using arguments of that kind in our courts a very hard time indeed?
Lord Wallace of Tankerness
My Lords, I can almost hear the noble Lord advancing that case. The Government’s position is simply that it is possible to make a distinction where there was a challenge to the listing in the Kadi case. It is not a position that we would wish to concede; it is on all fours with the circumstances that would arise in an asset-freezing case.
Should the courts decide that AF (No. 3) applies to asset-freezing cases, any court rules that cut across this would be read down to ensure compatibility with the ruling. Therefore, it would not be necessary to amend the legislation. In any event, it would be premature to prejudge such a determination by the courts and now to require the disclosure of sensitive information that could damage national security or the detection or prevention of crime.
The question is how best to deal with a situation where the applicability of AF (No. 3) principles is not given and is uncertain. Advocates of the amendment argue that we must remove the uncertainty by giving the Government specific obligations in this statute in the terms of the amendment moved by the noble Lord, Lord Pannick. As I believe is abundantly clear, the Government’s approach is different. As I said in Committee, and as the Prime Minister announced in July, the Government will review the whole matter of the use of intelligence material in judicial proceedings and will issue a Green Paper next year. I say in response to the question from the noble Lord, Lord Bach, that the intention is for the Green Paper to be published in the summer of next year. In response to his second question, this will allow time for a judgment to be handed down in the lead case—the employment tribunal case of Tariq—in relation to whether AF (No. 3) applies more widely than stringent control orders. I understand that that case will be heard by the Supreme Court in January and we expect a judgment in the spring. It would be wrong to pre-empt the Green Paper, although there will obviously be an opportunity for reflection on that judgment before the Green Paper is published.
It would also be wrong to adopt a piecemeal approach to this important issue. As we have heard eloquently expressed in the debate this evening, the issue of special advocates and the use of intelligence material cuts across a number of areas. If we try to address these important issues in an ad hoc way in individual pieces of legislation dealing with different aspects, we risk ending up with different requirements in different pieces of legislation. I know that that is not what many noble Lords wish to happen in this area of legislation. They want to see greater coherence and consolidation, not fragmentation and a piecemeal approach. I could not have agreed more with my noble friend Lord Lester when he said that this matter will not go away. The Government readily recognise that. As I indicated, our commitment is to address the issue. The fact that we are willing to do that is a testament to the importance that we attach to it.
The Green Paper will aim to develop a framework for ensuring full judicial and non-judicial scrutiny of intelligence and wider national security activities in line with the Government’s commitment to individual rights, to the rule of law and to properly protecting national security. It will need to address concerns about the United Kingdom’s ability to protect intelligence material, including that shared by foreign partners, and to bring forward proposals to reconcile the evolving legal position—duly informed, as it will be, by Strasbourg and Supreme Court rulings—with modern intelligence practices. We will try to ensure such a coherent and consistent approach. I hope that noble Lords will welcome and support that approach and see it as a recognition not just of how important this issue is but also of just how difficult it can be to reconcile two very important but at times competing requirements. Although I recognise that noble Lords have raised necessary and important issues with this amendment, I hope that the noble Lord will agree to withdraw it.
Amendment 24 would amend Civil Procedure Rule 79.2. That rule requires the court, when dealing with certain cases, to read the overriding objective of the Civil Procedure Rules—in other words, to deal with cases justly in a way that is compatible with the requirement to ensure that information is not disclosed contrary to the public interest, while ensuring that it has the material available to properly determine the proceedings. This relates to a similar range of arguments to those that we have just gone through. It comes from a belief that the ruling in AF (No. 3) should apply to challenges to designations under the Bill.
For two reasons, I do not believe that the amendment is necessary. As I have already made clear—I shall not rehearse the reasons again—the Government do not accept that AF (No. 3) applies to asset-freezing challenges. It is for the court to decide the ambit of AF (No. 3) on a case-by-case basis. Even if ultimately the court found that AF (No 3) applied to challenges to asset-freezing decisions, we do not think that there would necessarily be a conflict between the disclosure requirements of AF (No. 3) and the public interest requirement of Rule 79.2 of the court rules. Rule 79.23 makes it clear that the public interest provision is without prejudice to the need for the court to satisfy itself that the material available to it enables it properly to determine the proceedings. Furthermore, as I have indicated, Section 67(6) of the Counter-Terrorism Act 2008, which is imported into this Bill, simply states:
“Nothing in this section, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
In short, the Government do not believe that Rule 79.2 would cut across any fairness obligation required by the court to meet Article 6. It is an important reminder of the need to deal carefully with sensitive material but it does not constrict the proper determination of the proceedings.
I recognise that serious and important issues have been raised. I have sought to address, although I suspect that I have not done so fully, the concerns expressed by noble Lords. We hope that this will be considered fully. My noble friend Lord Lester mentioned the special advocates, as did the noble Lord, Lord Pannick, who expressed his views very robustly. There will be an opportunity to deal with that in the context of a Green Paper, which will be a way to move forward in a coherent rather than a piecemeal manner. Therefore, I ask the noble Lord to withdraw his amendment.
Lord Pannick
My Lords, I am grateful to noble Lords who have spoken in the debate for the support that they have given these amendments and to the Minister for his detailed response. I sympathise with the noble and learned Lord because, with his brief, he faces the substantial difficulties of inviting the House to accept that the legal position is not as it has been stated by the European Court of Human Rights in the A case, by the Appellate Committee of this House in AF (No. 3), by the Supreme Court in Ahmed and by the European Court of Justice in the Kadi case. For all those judges essentially to agree that basic fairness is required when the Government impose a substantial detriment, whether a control order, asset freezing or something similar, on a person—and I forgot to mention the Court of Appeal in Bank Mellat—poses a certain difficulty for the Government. As we are all rightly concerned about saving public money, I respectfully suggest to the Government that it would be a considerable waste of public money to litigate again the question whether the AF principles apply in the context of asset freezing.
The noble and learned Lord mentioned the pending case of Tariq in the Supreme Court, which is concerned with whether the AF principles apply in an employment context. The case concerns alleged race discrimination. Whatever the Supreme Court decides in that case, it is most unlikely to throw any light on the issue that we are debating here and it is most unlikely to conflict with what has been said previously.
Having made all those points, I recognise that we shall not take this matter further today. I hope that the Government will reflect on what has been said—not by me but by other noble Lords who have spoken—that they will reflect on the range of judgments that have been given and that they will recognise that, if they want to impose orders of this sort, they have to comply with basic principles of fairness that involve telling the person concerned why, in essence, the detriment is being imposed on them. I have no doubt at all that the House will return to this matter on a future occasion, if not future occasions. For today, I beg leave to withdraw the amendment.