Wales: National Assembly Elections

Lord Wallace of Tankerness Excerpts

Monday 18th June 2012 Grand Committee

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee takes note of the Green Paper on the future electoral arrangements for the National Assembly for Wales.

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

My Lords, it is a very welcome that we should have this debate, which is an opportunity for noble Lords on all sides of the House to contribute their views on the Green Paper. Since the coalition was formed in 2010, the Government have delivered major reforms to the country’s political system, making it fairer and more representative. In the previous Session, as many noble Lords present will recall, we took forward two major pieces of constitutional legislation: the Parliamentary Voting System and Constituencies Act 2011 and the Fixed-term Parliaments Act 2011. Although the Acts related to parliamentary elections and therefore extended to the whole of the UK, they had specific implications for Wales.

On 21 May, my right honourable friend the Secretary of State for Wales published a Green Paper on future electoral arrangements for the National Assembly for Wales, which sought views primarily on two issues that have arisen as a consequence of these Acts: whether the link between Assembly constituencies and parliamentary constituencies in Wales should be reinstated, and whether the Assembly’s term should change permanently from four to five years. In addition, it sought views on two other issues affecting elections to the National Assembly for Wales: whether a candidate at an Assembly election should be allowed to stand as both a constituency and a regional candidate, and whether Assembly Members should be prevented from becoming Members of Parliament.

The Parliamentary Voting System and Constituencies Act 2011 provided for a reduction in the size of the House of Commons and for constituencies of more equal size, so that a vote in one constituency would be worth the same as a vote in any other. Historically, the boundaries of the 40 constituencies for the National Assembly for Wales have been the same as those of parliamentary constituencies in Wales. The PVSC Act broke this link in order to ensure that fewer parliamentary constituencies in Wales would not mean correspondingly fewer Assembly constituencies and therefore a smaller Assembly.

However, the effect of breaking the link was that there was now no mechanism to review and alter Assembly boundaries in future. We must put in place a new mechanism—Assembly boundaries cannot be frozen in aspic—and in doing so we should consider whether it would be better to retain 40 Assembly constituencies but make them of a more equal size, or to re-establish the link with the boundaries of parliamentary constituencies. The Boundary Commission for Wales will recommend 30 parliamentary constituencies in Wales as a result of the current review, so reinstating the link would mean a change to 30 Assembly constituencies.

Each option has its merits. If we retained 40 Assembly constituencies, many electors would remain within their current constituencies. However, moving to 30 constituencies would retain the relative simplicity of the current arrangements and would enable electors to continue to vote in the same constituencies for parliamentary elections as for Assembly elections. It is important to make it clear that neither option preserves the status quo. If 40 constituencies are retained, they will be made more equal in size—Assembly constituencies are currently highly unequal. The Government’s reforms to parliamentary constituencies are underpinned by the principles of fairness, and we see no reason why that should not also be the case for Assembly constituencies.

A move to 30 constituencies would mean an increase from 20 to 30 in the number of regional Assembly Members, in order to ensure that the size of the Assembly would stay the same, with each of the five regions electing six Assembly Members instead of the current four. The number of parliamentary constituencies in Wales—and in any other part of UK—may change over time. Restoring the link between parliamentary and Assembly constituencies would mean that the number of Assembly constituencies would change when the number of parliamentary constituencies changed. To take account of this, the Government propose that if in the future the number of Assembly constituencies changes from 30 to, say, 29 or 31, the number of regional Members would increase or decrease accordingly to ensure a 60-Member Assembly. These regional seats would be distributed through the Sainte-Laguë method, which is generally acknowledged to be a fair way to allocate seats. The Government make clear in the Green Paper our preference to move to 30 constituencies but, as my right honourable friend the Secretary of State for Wales has indicated, this is not set in stone and we want to hear which option people prefer.

The second major piece of constitutional legislation we introduced is the Fixed-term Parliaments Act 2011, which establishes five-year fixed terms for Parliament. This will prevent a future Prime Minister being able to hold an election when it is merely politically expedient to do so. The date of the next parliamentary election is 7 May 2015. However, this date coincides with the elections to the National Assembly for Wales.

[Lord Foulkes of Cumnock]

Is it not possible that this Parliament could be dissolved in some other way before that date? That could happen if, for example, the coalition was to split and the Prime Minister no longer felt that he had the confidence of the House of Commons. The general election might then take place on a date other than that which the noble and learned Lord has specified.

[Lord Wallace of Tankerness]

That is a theoretical possibility, and the provisions for triggering an election are set out in the Fixed-term Parliaments Act 2011. Indeed, I can recall the noble Lord and other noble Lords present today debating those provisions at some considerable length. So it is possible, but the primary position under the Act is that the next election will take place on 7 May 2015.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

Perhaps I may make a little further progress before I take the intervention.

As I have said, that date would coincide with elections to the National Assembly for Wales. The Welsh Government raised concerns that a parliamentary poll on the same day could overshadow an Assembly election and, following a vote in the Assembly, the Fixed-term Parliaments Act itself deferred the date of the next Assembly elections by one year, to 2016.

[Lord Foulkes of Cumnock]

The Minister is obviously right if that is what happens, but is it wise to move ahead with other legislation on the basis of something that may not actually happen? It may be the most likely event, but it is not necessarily an absolute certainty. Is it wise to change legislation on the basis of something that may not be final?

[Lord Wallace of Tankerness]

The essence of a consultation is for considerations of that kind to be imported into the consultation, but the position is that if the law remains unchanged, and if it is the case that the next general election is held on 7 May 2015, under the five-year fixed-term provisions, five years hence from that date would be the first Thursday in May 2020. If the law with regard to the National Assembly for Wales has not changed, then by reverting back to a four-year term, the Welsh Assembly will also take place on the same day in May 2020. That is why we are examining the question of whether the Assembly should move on a more permanent basis to a five-year term. However, that is to accept that at any time either in this Parliament, the next Parliament or the one after that, there could be a situation where the Parliament does not run for its full five-year term. No doubt future Parliaments would have to address the consequences of that. It is also worth pointing out that if we had not had an Act for fixed-term Parliaments and this Parliament, as previous Parliaments have done, ran to its full term, the dates for the two elections in May 2015 would coincide without any prior provision having been made for that.

[Lord Elystan-Morgan]

I am most grateful to the noble and learned Lord for allowing me to intervene. Am I right in thinking that the five-year term does not mean a period of exactly five years, because the date for the election can be brought forward or delayed by 28 days on either side of the date? In other words, although it is inevitable that if nothing is done, the next Welsh election will take place at about the same time as the general election, it need not take place on the same day. I apologise if I am wrong about this, but I do not think I am.

[Lord Wallace of Tankerness]

I am trying desperately to think back to the debates that we had. I think I am right—and I am sure that by the end of this debate I will be corrected if I am not—that the Bill was amended in its passage through your Lordships’ House. It removed the earlier provision but maintained the possibility for a later provision. I think it is also the case that the Assembly has some power under the relevant legislation to vary the date. I have no doubt that the former Presiding Officer will be able to correct me if I have got it wrong, but I think I am right that the Assembly itself has some leeway.

The Government are seeking views on whether this temporary move to a five-year fixed term should be made permanent. Moving the Assembly to permanent five-year terms would mean it is less likely—although not guaranteed, as we have been discussing—that parliamentary and Assembly elections would be held on the same day in future, so there would be less chance of a parliamentary election overshadowing an Assembly election and of voters being confused by voting in two elections, using two different electoral systems, on the same day. To clarify the point I made a moment ago, it is in fact the Secretary of State who can vary the date of an Assembly poll by one month—but I think that even with one month there would still be the possibility of overshadowing.

However, combining elections can be beneficial by reducing costs—that is the other side of the coin. Holding the 2011 Assembly elections and the referendum on the alternative vote electoral system on the same day is estimated to have saved around £1 million in Wales. Holding elections on the same day may also help to increase turnout. The Government do not have a fixed view on whether the Assembly should have a four- or five-year term, but we believe that the potential impact on the elector is the most important thing to consider in deciding the length of the term.

As I have indicated, the Green Paper also seeks views on two further electoral issues in Wales. Since the 2007 Assembly elections, it has been prohibited for a candidate at an Assembly election to stand for both a constituency and a regional seat. This impacts disproportionately on smaller parties, whose candidates must choose whether to risk everything by standing as a constituency candidate when they could potentially be elected via the regional list instead. Conversely, it also affects parties who have done better than expected in a constituency election. In time, it is possible that high-quality candidates could be lost to the Assembly through this ban. The Government do not think that this situation is satisfactory, and believe the ban on dual candidacy should be removed.

The Green Paper also considers the issue of “double-jobbing”. The Government note concerns that have been raised over whether elected representatives who sit in more than one elected legislature at a time are able adequately to represent both sets of constituents. Double-jobbing is already prohibited in the European Parliament, as well as countries such as Canada and Australia, and the Government are seeking views on whether Assembly Members should be prevented from standing as Members of the Westminster Parliament simultaneously.

This Green Paper has not come out of the blue. It provides a structure to the debate that has been ongoing for more than a year about the make-up of the Assembly in light of the reforms that the Government have put in place nationally. It seeks to bring this debate out into the open. The consultation runs until 13 August and we are seeking the views of everyone—not least your Lordships—with an interest in the electoral arrangements of the National Assembly for Wales. I hope that this debate will help to explain and put forward ideas and views on these issues. Therefore, in encouraging noble Lords to make their views known, I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who took part in this debate, which has been very useful. First, I acknowledge a comment by the noble Lord, Lord Elystan-Morgan. I was indeed aware that the origins of the name Wallace come from the Shropshire-Wales boundary; I think the names are very similar. That only proves to me that we are pretty much a mongrel island and therefore those who would try to artificially break it up should reflect on the fact that peoples have moved around these islands for centuries. That may be one of the things that bind us.

The noble Lord, Lord Touhig, asked why we were debating this as opposed to many other issues. I think it is a red herring to claim that if you are focusing on one thing you are completely ignoring other issues. There is no doubt that the Government are absolutely committed to pursuing the economic objective of recovering the country’s finances from the situation we inherited in May 2010. Very often that is not done by legislation, and just because we are focusing on one or two items of legislation does not mean to say that we are taking our eye off the ball on the fundamental issues of the economy.

I would welcome more debates on Welsh issues, be they economic or otherwise. Having served in the House of Commons, the Scottish Parliament and the House of Lords, the ways in which the usual channels move are mysterious and wondrous to behold, but I am sure that we will try to find other opportunities to debate Welsh issues, and that there will be general support for that on all sides of the Committee.

[Lord Touhig]

I am most grateful for that commitment from the Minister. As the grandson of Katie Wallace, I knew that I could always trust a Wallace.

[Lord Wallace of Tankerness]

The noble Lord is my kinsman.

A number of noble Lords raised questions about the voting system and the size of the Assembly, so I should perhaps say at the outset what this consultation paper does not try to do. It was never the intention that it should open up these far more fundamental issues. It was clear from the comments of the noble Lord, Lord Anderson, that there is no consensus on the size of the Assembly. Although this is not an issue for this consultation paper, the speech of the noble Lord, Lord Elystan-Morgan, on the need for scrutiny, and the presidency—or vice-presidency—of the organisation to promote an Assembly of 80 Members elected by STV, to which my noble friend Lord German has recently been appointed, lead me to suspect that it will not go away.

When the Silk commission moves on to Part 2 there will be an opportunity for representations to be made, not on the voting system but on where the responsibility for that may lie. I may want to come back to this issue. It would have been wrong, in this consultation, to have gone into the much wider issues of the size of the Assembly or the voting system. It is intended to address mechanisms because of a situation that has arisen as a result of the two pieces of UK legislation to which I referred.

[Lord Elystan-Morgan]

My Lords, I was seeking to make the point that there is an inexorable nexus between the issue of a possible 90-Member Assembly and the question of the need for a minimum number of persons available to scrutinise legislation. I was unwilling to nail my argument to any particular number. My understanding is—and my noble friend Lord Elis-Thomas may be able to confirm it—that on one count the number of persons available to scrutinise would possibly be as low as 18. If that is true, one is talking not about the efficiency of an Assembly but about the very existence of an Assembly.

[Lord Wallace of Tankerness]

The noble Lord raises an important point about scrutiny, which was echoed by the noble Lord, Lord Foulkes, when he spoke about unicameral situations. However, that goes far wider than what we seek to do in this Green Paper. That does not mean to say that the debate will not continue. The matter must be addressed in the Green Paper as a consequence of the Parliamentary Voting System and Constituencies Act and the Fixed-term Parliaments Act. There may have been a slight misunderstanding by my noble friend Lord German. Both the Government of Wales Act 1998 and the Government of Wales Act 2006 stated that individual constituencies for the National Assembly of Wales would be the same as Westminster constituencies. That link was broken under Section 13 of the Parliamentary Voting System and Constituencies Act, so the status quo would be to have the existing 40 Welsh Assembly constituencies plus the 20 regional seats and, as is widely anticipated, the 30 Westminster seats.

We are bringing forward this Green Paper because two choices must be addressed. The status quo is not an option because, under the present arrangements with 40 Members, the constituency of Arfon—which I think the noble Lord, Lord Wigley, represented in the previous Assembly—has an electorate of some 40,000, and Cardiff South and Penarth has an electorate of between 76,000 and 78,000. That is a disparity within Wales and therefore a boundary commission would look at the size of the constituencies even if the number remained at 40. One way or t’other, we are either going to have a boundary commission to look at the 40 constituencies or move to the 30:30 system, as indicated in the Green Paper. It is in that context that we must look at these proposals. I say to the noble Baroness, Lady Morgan, that this is why it needs to be done and why we are consulting on it now.

[Baroness Morgan of Ely]

I accept that and I hope I made it clear that I understand why it needs to be done. There is a legal hole that needs to be filled. However, I wonder if the noble and learned Lord could address the issue raised by my noble friend Lord Foulkes. Why can we not keep this to an absolute minimum? Why can we not plug the legal hole and look at the broader questions once the Silk commission has reported?

[Lord Wallace of Tankerness]

My Lords, the primary consultation is about plugging the legal hole, but it is only fair to point out that when we agreed to extend this term of the Welsh Assembly and the Scottish Parliament to five years, I indicated from the Dispatch Box in the Chamber that we would consult on whether that should be a permanent arrangement. It seems an appropriate time to do that. Also, the issues of whether a person should be allowed to stand for the regional list and a constituency or whether there should be so-called double jobbing fit in neatly when a consultation is being undertaken.

Perhaps I may respond to a specific question put by the noble Lord, Lord Touhig, about the discussions between my right honourable friend the Secretary of State for Wales and Paul Silk. The terms of reference for the Silk commission, which were agreed by all the political parties in the Assembly, specifically exclude the Assembly’s electoral arrangements. It would not be appropriate to discuss with Paul Silk a matter that is not within the commission’s remit. However, it is the case that my right honourable friend has regular discussions with Paul Silk, as chairman of the commission, with regard to its progress.

[Lord Anderson of Swansea]

On the point of commitments, can the Minister tell us today what specific commitment was made to the First Minister by the Prime Minister in terms of consultation?

[Lord Wallace of Tankerness]

My Lords, I have heard of that before today. I can confirm that the Prime Minister and the First Minister have met on a number of occasions and it is my belief that, among other matters, this issue has been discussed, but I am not aware of any firm commitment on the part of the Prime Minister. I know that the issue has been raised, but I am not aware of the nature of any firm commitment. I cannot go beyond that because it is not a matter within my knowledge. I am aware that the matter has been raised, but I am not aware of any commitment having been made.

[Lord Wigley]

I am very grateful. The Minister will be aware of the tenor of the representations that have been made not just from this side, but also from certain colleagues on the other side. It should be the wishes of the people of Wales as expressed in the National Assembly that determine the outcome. Will he therefore give an undertaking to those noble Lords who have taken part in the debate today that he will take the message back that this is the expectation of Wales, and that we would like a response to that representation?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am coming on to address that point and I accept that it is important. In terms of taking messages back, I can assure noble Lords that these proceedings will be read, it is fair to say, avidly by my right honourable friend the Secretary of State. Not only will I report back, but I am sure that they will be read in the Official Report.

[Lord Touhig]

I apologise; the noble and learned Lord is being very generous in giving way. I accept what he says about the Silk commission being excluded from looking at the situation in Wales, but the point of my question was this: was the Silk commission consulted about this Green Paper because it has come out of the blue for all of us?

[Lord Wallace of Tankerness]

My Lords, it is my understanding that the commission was not consulted, but that was because what this Green Paper is about is beyond its remit. Questions have been raised about these deliberations, and I am aware of the debate last week in the National Assembly for Wales. The fact—one that has been reflected by a number of contributors to the debate—is that the electoral arrangements of the Assembly are a non-devolved matter. The matter is reserved to this Parliament. Indeed, the noble Lord, Lord Foulkes, made the point that Wales has two Governments: it has a Government in Wales in the National Assembly and also has a Government here at Westminster. The devolution settlement agreed in the Government of Wales Acts 1998 and 2006, and the distribution of powers that was approved only last year in a referendum, retain the electoral system and arrangements for the Assembly as being matters for the Westminster Parliament.

I accept that those in Plaid Cymru who aspire to much greater powers for the National Assembly for Wales would argue the case that electoral arrangements, and possibly the system, should be devolved—albeit with a two-thirds majority—and clearly that case can be made. The Silk commission does not have within its remit the current electoral arrangements but it does have within its remit the distribution of powers between the Westminster Parliament and the Welsh Assembly. I have no doubt that representations to that effect will be made, but that is not the current devolution settlement.

[Lord Elis-Thomas]

Will the Minister accept that I was not arguing on behalf of Plaid Cymru—I very rarely do, according to some of my party colleagues—but that I was reflecting the agreed consensus of the National Assembly on Tuesday? The UK Government at Westminster ignore such views at their peril.

[Lord Wallace of Tankerness]

If I did suggest the noble Lord was expressing a party view, I did not intend to—although I think I rather know where he will come from in terms of the distribution of powers. Of course Her Majesty’s Government will have regard to the views of the Assembly, and of all who contribute. We are very keen for people to contribute. It is not the position at present that we should subcontract to the Assembly—as I think the noble Lord, Lord Anderson, put it—given that there is a settlement that has been voted by Parliament and supported in a referendum. But I repeat that we will have regard to the views of the Assembly.

There is no way we are going to change the constitutional arrangement for responsibilities when I have indicated from the outset that there is a need to do something: either have the 40 seats with the new boundaries, which would require the Boundary Commission to be given responsibility for doing that, or move to the 30:30. Of those who expressed a view, the balance was that there were merits in the 30:30 arrangement. The noble Lord, Lord Elystan-Morgan, said that otherwise there could be conflict or a lack of cohesion. My noble friend Lord Roberts of Conwy said there would be less confusion for electors or party organisers. I think we would all accept that at the end of the day the electors are more important than the party organisers, but let us not forget that the parties and the party organisers help the wheels of democracy to turn and it is important that these wheels are properly oiled. The noble Lord, Lord Wigley, made the point that whatever we do, it should not be less proportional. Clearly 30:30 would not be less proportional, but if 30:30 was doubled up with Members elected by first past the post, that would be less proportional.

The point was made about the position in Scotland. It is fair to say that in Scotland the boundaries for the Westminster constituencies are different, principally because the link was not broken between the parliamentary constituency and the Scottish Parliament constituency. When the Westminster Parliament reduced from 72 to 59 pre-2005, there would have been an automatic reduction in the size of the Scottish Parliament, as intended by the 1998 legislation—I remember the debates—but by the time we got there, there was a view that that was not right, that the parliament should not decrease in size, and therefore the link was broken. That was the history of that. In 2006, the Arbuthnott commission reported that,

“most individual voters surveyed ‘claimed not to care’ about whether constituency boundaries were coterminous, and that it was ‘not an issue which would dissuade them from voting’”.

I appreciate that people have strong views on this issue and that is precisely why we are consulting on it.

On the position of the five-year fixed term, I think that there was a consensus across the Committee, given what has happened and the recognition that it was not desirable in 2015 to have elections on the same day, that the arguments that were persuasive then remain persuasive. With regard to my noble friend Lady Randerson, it is my understanding that local elections in Wales are a devolved matter, but Welsh Ministers have moved the 2016 local elections in Wales to 2017 to avoid a clash with the Assembly election. That matter has clearly been addressed.

As regards the ban on double candidacy—and the quality of any democracy is how it considers a range of parties—the point was made that it impacts more heavily on the smaller parties. The noble Baroness, Lady Morgan, and my noble friend Lady Randerson mentioned the position of the Leader of the Welsh Conservative Party who was rewarded for his party’s success by losing his seat, which seems to be somewhat ironic. It was the noble Lord, Lord Wigley, who said that if international comparisons are to be made, it is probably only the Ukraine that does this. The point was also made by the Arbuthnott report in Scotland that the electorate did not have a problem with people standing in both the individual constituency and the regional list.

On the question of double jobbing—I will certainly report the angst about the terminology—again it is quite clear that there are issues on both sides, and that is why the Government are consulting on this. I was struck by what the noble Lord, Lord Wigley, said about how difficult he found it. We are all declaring interests and, after the Scottish Parliament was established in 1999, I served for two years as both the Member of Parliament for Orkney and Shetland and the Member of the Scottish Parliament for Orkney. I managed to do that because I knew that I was not going to do so beyond 2001. There is an issue as to whether, if we were to go down that road, there should be some flexibility whereby people could see out a term of office to avoid a by-election, particularly if they have only one year left. However, I hear what the noble Lord, Lord Wigley, said about perhaps there being an automatic election; and that is clearly a relevant consideration to take into account in a consultation.

I realise that I have probably not done justice to everyone’s comments, but I hope that I have addressed the main points raised. I assure the Committee that the contributions to the debate will be taken into account, as indeed we will pay proper respect to the views expressed in the National Assembly for Wales.

Motion agreed.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Tuesday 24th April 2012 Lords Chamber

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

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Scotland Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

In moving that the Bill be now read a third time, I wish to inform your Lordships' House that since the Report stage of the Bill the Scottish Parliament has given its full support to the legislative consent Motion in favour of the Bill, with no Division required. The Government welcome the Scottish Parliament’s support for the Bill.

Clause 12 : The Scottish Government

Amendment 1

Moved by

[Lord Wallace of Tankerness]

1: Clause 12, page 7, line 18, leave out first “the”

[Lord Wallace of Tankerness]

My Lords, these minor and technical amendments, which are a cue for those who wish to leave to do so, will ensure that all references to “Scottish Executive” in Section 44 of the Scotland Act are amended to “Scottish Government”. Clause 12 of the Bill renames the Scottish Executive as the Scottish Government. This clause was included in the Bill following increasing use of the term Scottish Government by the Scottish Administration, indeed by the UK Government and the public as well. Clause 12 will ensure that the use of its legal and public name is consistent. The current clause does not encapsulate every mention of the Scottish Executive within Section 44 of the Scotland Act and these amendments will ensure that the policy intention underlying Clause 12 is fully implemented. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I am not going to make a speech about the relevance of the definite article, but I wonder whether my noble and learned friend might help me by giving some understanding of why it was felt necessary to change the name of the Scottish Executive to that of the Scottish Government, but not at the same time to change the name of First Minister to that of Prime Minister. Given that we apparently have a Scottish Government and a Scottish Cabinet, why has he not felt it necessary to make a change to the title of the leader of that Government? I ask that question not in order to make mischief but to underline the point as to what is going on here.

The Scottish Executive were called the Scottish Executive with very good reason: in order to demonstrate that power devolved is power retained, and that we did not have competing governments in a unitary system. If you are going to have separate governments, you have to have separate roles within some kind of federal structure. I do not know whether my noble and learned friend even considered changing “First Minister” to “Prime Minister of Scotland”. Looking at the behaviour of the First Minister in Scotland, Prime Minister is probably not a grand enough title—there may be other titles which would be more appropriate, given the all-encompassing role which he carries out—but in order not to delay proceedings, I will not elaborate on that matter. I would be most grateful if my noble and learned friend could explain to me why it was thought necessary to change just this aspect of the nomenclature of the Scottish Administration.

[Lord Wallace of Tankerness]

My Lords, as ever, I am grateful to my noble friend for raising a pertinent point. As I explained in moving the amendment, the term Scottish Government, albeit technical, is widely used publicly. Indeed, I think I am right in saying that it was first ever used by the Scottish Administration in a document which I rather suspect the late Donald Dewar and I co-signed in 1999 or 2000. It is not only used by the Scottish Administration but has been used by the UK Government, and is used widely within the public. We therefore think it makes sense to amend the Act to reflect this public perception and avoid the potential for confusion, if indeed the popularly used name differs from the one required for legislation, contracts and legal matters.

As I am sure my noble friend will agree, while there have been regular references to the Scottish Government as opposed to the Scottish Executive, the term “First Minister” is one which has stuck. There has been no attempt or suggestion to use the term “Prime Minister”, or any public use of it, to refer to the person who holds that office and there is a clear distinction between the two. I hope that I am not giving anyone encouragement, or they might start to use the term “Prime Minister”. Clearly, that has not happened. We are seeking here to bring into line the public perception and the legal requirements. On that basis I hope that your Lordships’ House will agree to these amendments.

Amendment 1 agreed.

Moved by

[Lord Wallace of Tankerness]

2: Clause 12, page 7, line 18, leave out second “the”

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

3: Clause 21, page 13, line 31, after “of” insert “regulations under section 86 or”

[Lord Wallace of Tankerness]

My Lords, during the Committee and Report stages my noble friend Lord Forsyth of Drumlean tabled amendments to give Scottish Ministers the power to make regulations to make provision for regulating the speed of all classes of vehicle on special roads in Scotland. We had some spirited and interesting debates on this topic and at Report stage I indicated that the Government’s position was to accept the principles underlying my noble friend’s amendment and I committed to bring forward amendments at Third Reading so that the amendments properly deliver the desired effects that my noble friend set out. In particular, I highlighted that the amendment would require redrafting to ensure that the power to set different speed limits for different classes of vehicle applied to all roads except those covered by the 30 mph limit, not just special roads, which are effectively motorways in this context. That is what the Government have done and what Amendments 3 to 7 achieve.

The Government have included powers in Clause 21 of the Scotland Bill to allow Scottish Ministers to determine the national speed limit on roads in Scotland, and a power to make regulations to specify traffic signs to indicate that limit. The powers currently set out in the Bill are limited to cars, motorcycles and vans under 3.5 tonnes. We listened carefully to the arguments presented by my noble friend and other noble Lords on the Benches opposite. Together with the case made by the Scottish Parliament and the Scottish Government for the Bill to provide for the devolution of powers to set different speed limits for different classes of vehicles, we decided to accept the position put forward by my noble friend.

Amendments 3 to 7 will give Scottish Ministers the power to make regulations regulating the speed of all classes of vehicle on roads in Scotland and will make some consequential amendments. This will enable Scottish Ministers to set a national speed limit that is different for different classes of vehicle. On that basis, I ask noble Lords to accept the amendments. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I am most grateful to my noble and learned friend for tabling this amendment and for accepting the principle of the amendments that, as he indicated, I tabled at an earlier stage of the Bill. After I do not know how many thousands of words that I have spoken on the Bill on all the issues that have been raised, he will realise that it is a matter of great comfort to me to know that I have extended the powers of the Scottish Parliament to enable it to set speed limits for caravans and lorries. That no doubt will be my epitaph in respect of the consideration of the Bill. Just to ensure that this is on record, I think that it is ridiculous to have different speed limits north and south of the border, but if we are going to go down that track then clearly it is essential that there should be consistency.

I am grateful to my noble and learned friend and to the Secretary of State for Scotland, who I know may have had to press the Department for Transport a little in order to ensure this minor victory for extra powers to the Scottish Parliament.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend. I think I am right in saying that, since the Bill was introduced, this is the only amendment that will actually extend the powers of the Scottish Parliament. For that, I am extremely grateful to him.

Amendment 3 agreed.

Moved by

[Lord Wallace of Tankerness]

4: Clause 21, page 13, line 33, after “the” insert “regulations or”

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

7: Clause 22, page 14, line 28, leave out paragraph (b) and insert—
“(b) omit paragraph (f) (sections 86(2) and 88(1) and (4)).”

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

8: Clause 35, page 27, line 34, at end insert—
“( ) The Lord Advocate or the Advocate General for Scotland, if a party to criminal proceedings before a court consisting of two or more judges of the High Court, may require the court to refer to the Supreme Court any compatibility issue which has arisen in the proceedings otherwise than on a reference.”

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the amendments that I tabled in Committee reflected some of the points made in Committee and the agreement that had been reached between the Government and the Scottish Government to ensure that a legislative consent Motion in support of the Bill was tabled in the Scottish Parliament. The amendments at that stage included provision for compatibility issues to be referred to the higher courts in certain circumstances to allow these issues to be dealt with quickly.

On Report, I said that I was still considering whether the law officers should be able to refer certain compatibility issues to the Supreme Court without the permission of the High Court, and what the role of the High Court should be. I also indicated that I would continue to discuss these matters with the Lord Advocate.

The amendments that I have tabled extend the powers of the law officers and allow certain compatibility issues to be ultimately considered by the Supreme Court where the law officers consider it appropriate to do so. The Lord Advocate is content with these amendments.

Clause 35 already makes provision for the law officers to require a lower court to refer a compatibility issue to the High Court. This can be done before the trial is concluded. On receiving the referral, the High Court can either decide the compatibility issue itself or refer it to the Supreme Court. We expect the High Court, in making this decision, to take account of the views of the law officers.

Amendment 9 ensures that if the High Court decides to determine the compatibility issue itself, then the law officers will have a right to appeal the compatibility issue to the Supreme Court once it has been determined by the High Court. In these circumstances, the law officers will not need the permission of the High Court or the Supreme Court to appeal. This means that where one of the law officers refers a compatibility issue to the High Court then either law officer can ensure that the issue is ultimately considered by the Supreme Court, should the High Court decide to look at the issue itself.

In addition the Bill already allows the High Court to refer a compatibility issue to the Supreme Court, where the compatibility issue has not been referred to it by a lower court and the High Court is considering the issue on an appeal. Amendment 8 extends this power, by allowing the law officers to require the High Court to refer the compatibility issue to the Supreme Court. Law officers can only do this if the compatibility issue has not been referred to the High Court by a lower court, and the High Court is considering the issue on an appeal. Referring the issue will enable the Supreme Court to decide on it earlier, which will be helpful where the compatibility issue will have implications for other cases. These amendments improve the Bill and enable compatibility issues to reach the Supreme Court more quickly, where this is appropriate, while respecting the importance of the role of the High Court in relation to these issues.

As I said in our earlier debates, we have come a long way in reaching agreement on the role of the Supreme Court in Scottish criminal proceedings, and I am grateful for the contributions made to the debate, including those made by the expert group that I set up chaired by Sir David Edward, by the review group led by the noble and learned Lord, Lord McCluskey, and by other members of your Lordships’ House. I trust that all who have been involved in this work consider that the provisions in the Bill will result in improvements to the way in which convention and European Union law issues are dealt with in Scottish criminal proceedings. I beg to move.

[Lord McCluskey]

My Lords, I welcome both Amendment 8 and Amendment 9, which, I understand, are being taken together. As for Amendment 8, I wrote to the noble and learned Lord the Attorney-General for Scotland some time ago suggesting that this would be an appropriate power to be included in the Criminal Procedure (Scotland) Act 1995. My view, which he has echoed, is that this power, used when thought necessary, could sometimes be useful to speed up cases going through the courts. It is clear that the two law officers, the Advocate-General and the Lord Advocate, can be trusted to use this power only in circumstances where it would serve the interests of justice, namely by preventing delay.

I believe I understand the purpose of this amendment and of Amendment 9, but could the noble and learned Lord explain one or two matters? The first is the exception made in the words that conclude Amendment 8,

“otherwise than on a reference” .

Could he explain precisely the purpose of those words? The second point relates to Amendment 9, to Clause 36. This disapplies subsection (5) to certain appeals taken by either of the two law officers. Why is this particular subsection disapplied? The answers will assist those practitioners who may have been confused by the considerable changes that have taken place, both in the Bill itself initially, and in the proceedings in this House to what is now Part 4 of the Bill.

Would the noble and learned Lord also explain under what circumstances and at whose instance a criminal case might be referred to the Supreme Court before the stage at which the facts of the case have finally been determined, and before the case itself has been finally determined by the court below? May I ask in particular, with regard to the commencement provisions in this Bill, when it is envisaged that Part 4 of the new Act will be brought into force? In asking that, I recognise that the Lord Justice-General—the Lord President—will have a considerable amount of work to do in preparing an act or acts of adjournal to cover the new matters. I have no doubt that he will have to consult widely on that; however, I hope that it could be done within months, rather than in any longer period. When is it envisaged that Part 4 will be brought into force?

I made an error in speaking to the Committee some time ago. I referred at that stage to the judges who had been consulted by the noble Lord, Lord Hamilton, before he put in his written representations. I mentioned that one of them was the noble and learned Lord, Lord Phillips of Worth Matravers. In fact, the two judges referred to were the Lord Chief Justice of England, the noble and learned Lord, Lord Judge, and the Lord Chief Justice of Northern Ireland, Sir Declan Morgan. I apologise to the noble and learned Lord, Lord Phillips, for that mistake.

Finally, I express my thanks to the Advocate-General for Scotland for the very careful and considerate way in which he has dealt throughout with the Bill and all the representations he has received. Two groups made a considerable contribution to the shape of the Bill and I shall mention them in a moment. The Advocate-General said that he would listen, which he undoubtedly did. He also made judgments with which I am happy to say that I agree. The two bodies are those mentioned by him. The group led by Sir David Edward, known as the expert group, made a substantial contribution to analysing the problems. Secondly, there was the group of experts that I had the honour to chair. We could not call ourselves the expert group because that name had already been appropriated by Sir David Edward’s group, so we called ourselves “the Supremes”. However, we kept that name to ourselves for reasons of modesty and to avoid confusion with the pop group of the same name. Between us and with the help of others in your Lordships’ House, we now have in the Bill a scheme for appeals on human rights issues in criminal cases in Scotland in the Supreme Court, and for other compatibility issues, that is greatly superior to the one that somehow found its way unannounced into the Scotland Act 1998. Time will show whether I am right.

[Lord Browne of Ladyton]

My Lords, for the reasons set out in his initial remarks by the noble and learned Lord, Lord McCluskey, I also support these amendments. They improve the provisions of the Bill, to which my noble and learned friend Lord Boyd of Duncansby has made a significant contribution over time, as have those others mentioned by the noble and learned Lord, Lord McCluskey. I understand that the exercise of a power of this nature has proved beneficial in the past to the administration of justice in Scotland and that it would be to the detriment of the powers if it were not included in the provisions of the Bill.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord and the noble Lord, Lord Browne, for their welcome for these amendments. As I indicated, they reflect listening and working together, not only between the various groups but between the Lord Advocate and me and the respective officials in the United Kingdom and Scottish Governments. The noble and learned Lord, Lord McCluskey, made the point that the amendments will allow an opportunity for cases to be expedited in certain circumstances. Very often, these are circumstances in which a number of cases are waiting for a determination before they can be resolved.

The noble and learned Lord asked why the words,

“otherwise than on a reference”,

appear in Amendment 8. As I sought to explain, these relate to circumstances in which a case is being heard by the High Court on appeal. Therefore, it is different from a situation in which the High Court deals with a case on referral. Those words apply to an issue that comes up on an appeal that should be referred to the Supreme Court.

The disapplication of subsection (5) is the subject of Amendment 9. As I tried to explain in speaking to the amendment, it is anticipated that if there has been a referral from a lower court to the High Court on appeal, it will be possible for either law officer then to refer to the Supreme Court without a requirement for leave from either the Supreme Court or the High Court of the Justiciary. I hope that explains it.

The noble and learned Lord also asked when it is anticipated that these changes will come into effect. I cannot give him a clear date but I share his expectation and hope that it can be done in a matter of months. As he rightly points out, there is considerable preparatory work to be done. I strongly suspect that an act of adjournal will be required, which will need work by the Lord Justice-General, the Lord Justice Clerk and the court authorities in Scotland. However, we hope to make good progress in implementing this.

[Lord McCluskey]

Before the noble and learned Lord sits down, will he reflect on this debate and draw the attention of his colleagues in government to the fact that the considerable improvements that have been made to the criminal justice appeals system in Scotland were achieved in a Bill discussed in this House by unelected Members who made all the necessary changes, including those that he made? There is perhaps a lesson there for those who are considering what changes to make to the constitution and powers of this House.

[Lord Wallace of Tankerness]

The noble and learned Lord is, I suspect, going slightly wider than the Bill, but I am sure there will be many lessons learnt from the way that the Bill has progressed—not least the way in which we have dealt with it. I pay tribute to those within your Lordships’ House who have contributed in debates and representations, as well as to others outside your Lordships’ House who have contributed too. What we have at the end is something worth while, given that some months ago we did not have the easiest circumstances. I obviously wish to confirm that although the group that I set up was referred to as the expert group, that in no way detracts from the expertise of the group chaired by the noble and learned Lord, Lord McCluskey. I was very conscious that when he, along with Professor Sir Gerald Gordon and Sheriff Charles Stoddart, came to see me, I was in the presence of the two people who had taught me criminal law in the late 1970s. I certainly listened very carefully to what they and the noble and learned Lord said, and I am pleased that the position we have reached appears to command support across the House. I therefore commend the amendment.

Amendment 8 agreed.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

9: Clause 36, page 29, line 5, at end insert—
“( ) Subsection (5) does not apply if it is an appeal by the Lord Advocate or the Advocate General for Scotland against a determination by the High Court of a compatibility issue referred to it under section 288ZB(2).”

--- Later in debate ---

I am not entirely sure whether our scrutiny of this Bill proves the case for the status quo as far as your Lordships’ House is concerned. However, as a recently introduced Member of this House who has come from the other place, it has proved to me that this place certainly does a better job of debating the details of legislation. I have immensely enjoyed the quality of the debate. I may not have always been able to persuade your Lordships of the rightness of my argument, but I thank all those who took part in our debates for their contribution to them.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Forsyth of Drumlean for introducing these amendments. I will try to say something about them but, as my noble friend Lord Steel of Aikwood said, they have also provided your Lordships’ House with an opportunity to have something more akin to a House of Commons Third Reading debate, which has been very useful. I am very grateful for the comments that have been made from all parts of your Lordships’ House and wish to express my appreciation for the kind personal words that have been said.

I hope that I can do justice to a number of the comments that were made, but perhaps I may start by referring to the amendments. I understand and know where my noble friend comes from, and I would wish to join others who have paid tribute to him for his diligence in our proceedings on the Bill. He has highlighted a number of issues, and while I know that he will not always necessarily have been satisfied with the replies, he has at least prompted consideration and detailed scrutiny of the Bill, which is one of the purposes of your Lordships’ House. His amendments give him a hook to hang a number of points on. I know that he is not happy with the Bill, and I suspect that we will disagree on this just as we disagreed 14 or 15 years ago on devolution. Nevertheless, I respect the view that he has maintained over a long period.

In tabling the amendment, my noble friend sought to improve the drafting of the Bill, which is a criterion for getting an amendment accepted at Third Reading. I am sorry to say that I do not think the amendment meets that test. One learns interesting things in dealing with these Bills. The purpose of the Short Title of the Bill is that it must give sufficient indication of the content in a way that is not misleading; it cannot be argumentative or a slogan; it becomes the Short Title of the Act when passed, so it needs to be helpful to users and not unwieldy; and, above all, it must be short. With due respect, my noble friend’s amendment does not meet that test.

I accept one part of his argument. It is important that people in Scotland, as well as in other parts of the United Kingdom, recognise what the content of the Bill is because these are important and profound changes. It is up to all the political parties to ensure that the knowledge is there and that debate in the Scottish Parliament now focuses on how these powers will be used. There are important powers relating to airguns and speed limits but also with regard to taxation, as well as the fact that stamp duty on land transactions will be disapplied in Scotland in 2015. When it comes to forward planning, the Scottish Parliament cannot sit around for very long before we start to get the colour and shape of how it will use these new powers and how it can do so imaginatively in a way that has not been done across the UK as a whole. I hope that, in taking forward these powers, there will be debate about their use.

On the issue mentioned by my noble friends Lord Selkirk of Douglas and Lord Steel of Aikwood, the purpose of the legislation following on from the Calman commission was indeed to increase the accountability and responsibility of the Scottish Parliament. I think that it was in his Donald Dewar lecture that my noble friend Lord Steel reflected on just how unsustainable it would be for a Parliament to persist over a long period almost wholly dependent on a grant voted to it by another Parliament. That, and the need to increase the accountability of the Scottish Parliament, are things that those of us who sat on the Calman commission were very conscious of. We also sought to get to a balance, as my noble friend Lord Selkirk said, between accountability and risk. Within a social union, many of these risks are shared, and better shared across a union of 60 million people than 5 million.

Perhaps the most important change relates to income tax. As Calman commissioners, the evidence that we received suggested very much that income tax was the tax that most people could recognise as having the most direct personal impact on them and therefore the one most likely to deliver that accountability.

I do not accept that the changes are too small; I believe that they will lead to greater accountability. The noble Lord, Lord Kerr of Kinlochard, suggested that we should have gone much further and had a debate during the passage of the Bill on some of the wider powers that have been discussed in the media and political forums over recent weeks and months. However, as the noble Lord, Lord Browne, said in welcoming the Calman commission, it was the consequence of a considered process. If one looks back at the constitutional convention that sat in the 1990s, which led ultimately to what was in the Scotland Act 1998, and the provisions suggested by the Calman commission, which deliberated and then led to the legislation before us today, we see a process whereby political parties—sometimes not as many as we would like—have joined in and reached a consensus without reflecting their own concerns and viewpoints. We have then been able to take that consensus forward, present it to voters in an election and subsequently go forward to legislation. I do not think that that would have been at all possible with regard to some of the perhaps more far-reaching issues that the noble Lord, Lord Kerr, referred to in terms of dealing with this legislation.

I say to the noble Lord, Lord Maxton, and the noble Baroness, Lady Liddell, that I recognise there are judgment calls about whether the timing is right. However, I share the view of the noble Lord, Lord Browne of Ladyton, that the manifestos of the Conservative Party, the Liberal Democrats and the Labour Party at the last election each made a promise. We do not need to be terribly imaginative to write the script of those who wish to advance the cause of independence and say, “Look, they promised you that and Westminster has not been able to deliver it. How much more can you actually trust Westminster?” That is a script that we will not let them write. It is right and proper that we have proceeded with this Bill.

My noble friend Lord Forsyth was sceptical about whether, if at a future date the Scottish Government or Scottish Parliament espoused devolving a particular tax, Westminster would be able to stand up to them. Let us recall—

[Lord Forsyth of Drumlean]

It was not about devolving a particular tax but about inventing a completely new tax.

[Lord Wallace of Tankerness]

My Lords, similar arguments apply whether it is for a new tax or the devolution of corporation tax, which is not a tax that the Scottish Parliament currently has. The more general point is that the Scottish Government actually asked for devolution of excise duties and corporation tax and the United Kingdom Government did not believe that the case had been made. This Government made it clear that we would not devolve further taxes unless there was evidence presented and a case made. In these particular examples, we took the view that no case had been made. There was no evidence and therefore it was resisted.

[Lord Forsyth of Drumlean]

There is a distinction between creating a completely new tax and devolving an existing tax. Corporation tax is an established tax in the Finance Bill. If Alex Salmond thinks of a completely new tax, all that is required for it to be imposed is for an Order in Council to go through both Houses of Parliament. That is a completely new and novel procedure and quite different from an argument about who will administer or levy an existing tax.

[Lord Wallace of Tankerness]

I apologise if I misrepresented what my noble friend said. However, the response is similar. Having identified criteria, whether in the Bill or not—we have had debates on that—the point I wish to make is that there are criteria there and the United Kingdom Government have shown that they are not a pushover. We set out criteria regarding devolution of existing taxes; we stood by that and I have no reason to doubt that, having set out criteria regarding the devolution of any future tax, we would have to be satisfied before bringing forward to this and the other House an order to devolve further taxes.

Could I pick up the point of the noble Lord, Lord Kerr of Kinlochard, and the noble Baroness, Lady Liddell? She said that a different debate was going on. The two debates are not mutually exclusive. The difference is that while there has been a lot of talk by the Scottish Government about change, this Bill actually delivers change. However, many of us want to get on to the wider debate. Inevitably there will have to be a debate on process—the shorter the period devoted to it the better—but there are important issues. The noble Lord, Lord Kerr of Kinlochard, clearly set out at least one of them: fiscal autonomy and its relationship to monetary policy. The conclusion of the Calman commission was that there was not much difference between fiscal autonomy and full independence. Clearly these are questions that will be debated in a much wider forum in the lead-up to a referendum.

There is an important issue about Europe and an independent Scotland’s relationship with the European Union. I respectfully suggest that a person with the knowledge and expertise of the noble Lord, Lord Kerr, free from any party-political baggage, could give a view on that which people would listen to and would be an important contribution to a debate. I hear what is said about an independent commission. It might be a triumph of hope over experience, but I hope that there will be opportunities for independent think tanks and people with expertise and renown in their specific fields to come forward and express their views on the issues that will inevitably emerge in any referendum debate.

--- Later in debate ---

[Lord Kerr of Kinlochard]

My point was not about process—I do not want to get into questions of process—but the distinction is one without a difference. If Scotland had full independence on the prospectus in the Scottish Government’s consultation paper, it would still be using the United Kingdom currency. In my judgment, when the Scots applied for membership, the European Union would not insist that they adopt the euro forthwith, but it would probably ask for some sort of undefined commitment at a future date. Therefore, there would still be the problem of fiscal autonomy alongside continuing monetary integration. That problem would exist in a scenario of either devo-max or independence, so it needs to be addressed.

[Lord Wallace of Tankerness]

I do not dispute that. It needs to be addressed. It is one of the key issues that those who advocate ultimate fiscal autonomy or independence must address. I do not think that the noble Lord is suggesting that it would be suitable for inclusion in the Bill, but it is an important issue that has to be properly and fully addressed in the debate that we will undoubtedly have on the independence referendum.

[Lord Martin of Springburn]

For the sake of getting things on the record, I am very heartened to hear the Minister say that he is keen on having one question alone on the ballot paper. For the record, is that the policy of the Government or will there be a situation in which the Prime Minister may say something different?

[Lord Wallace of Tankerness]

My Lords, it is fair to say that in the consultation paper that we launched on 10 January it was made clear that a single question was the preferred position of the United Kingdom Government. I am happy to say that the responses that we have received to that consultation give great support to that position.

In conclusion, I again acknowledge the benefit to the Bill of consideration and thorough scrutiny in your Lordships’ House, and not just in those areas where amendments have been made as a result of our debates. Through our debates we have explored many of the issues that we will continue to face as we move to the next important phase of implementing legislation. I echo the thanks not only to those who have taken part in the debates but to those who have supported me and my noble friend Lord Sassoon in them. While there have clearly and importantly been divisions—it would be very boring and impossible to achieve total consensus—it is not usual for a Bill to be supported by all three United Kingdom parties. However, there has been a note of consensus, which has been welcome. I also welcome the scrutiny. Whether noble Lords were supporters of devolution back in 1998 or support every clause here, I hope we recognise that we are stronger within a United Kingdom in which we devolve powers to the appropriate level and work together to pool resources and risks across the country for the benefit of all. That is what the Bill seeks to advance. It is part of developing and continuing support to maintain the United Kingdom, of which all noble Lords and I are very proud. I ask my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

My Lords, I am devastated by that response. I am very disappointed in my noble and learned friend. I actually understood the criteria for the Short Title of a Bill, but I remember having a great struggle with the Scottish Office, which wanted to call a Bill the “Criminal Justice (No. 3)(Scotland) Bill” and I wanted to call it the “Crime and Punishment (Scotland) Bill”. I think that in the end I won that particular argument, but the legislation was promptly repealed by the Scottish Parliament, only to be reintroduced later as a populist measure in the same terms.

I do not accept that the Short Title I propose is too long. That was the only argument against the amendment that my noble and learned friend advanced in his interesting and helpful speech. One of the criteria is that the Short Title should not indicate advocacy or a point of view. I resisted that, although I was tempted. My draft suggested a Bill “to ensure that Scotland becomes the highest taxed part of the United Kingdom”, but the Public Bill Office felt that that did not meet the criteria. However, it would at least have warned people about what was coming down the legislative track.

As my noble and learned friend guessed, I tabled the amendment because I suspected that under our rules we do not normally make speeches when we are considering a Motion that a Bill do now pass. I suspected that people would want to get a few things off their chest. I shall resist the temptation to respond to all the points that were made, but I am also devastated by the remarks of the noble Lord, Lord Browne, who tells me that the people of Scotland stopped listening to me some time ago. I should be very grateful if he could tell me afterwards when it was that they were listening to me.

I have to say to my noble friend Lord Selkirk of Douglas, who said that I should note that the Scottish Parliament, including the Conservatives, had unanimously approved the Bill, he should note that the Scottish Parliament’s committee came forward with 45 different amendments to the Bill, which would have amounted pretty well to independence, and which the committee said it would insist upon. What my noble friend should note is that the Scottish Parliament seems to change its mind very radically very quickly. When people change their mind very radically very quickly on important constitutional issues, alarm bells should start ringing and people should start thinking about what is going on here. I have to say to the noble Lord, Lord Browne, who gave a romantic picture of the genesis of the—

Universities: Fees

Lord Wallace of Tankerness Excerpts

Wednesday 28th March 2012 Lords Chamber

[Lord Forsyth of Drumlean]

To ask Her Majesty’s Government whether they will ensure that students who are resident in England, Wales or Northern Ireland and attend Scottish universities will pay the same fees as those living in other European Union member states.

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

My Lords, as I set out on Report on the Scotland Bill on Monday, higher education is devolved across the United Kingdom. This means that all areas of the UK have made different decisions regarding the funding of higher education. Any change to the devolution settlement would risk a key principle of devolution: that the devolved Administrations have the freedom to set devolved policies as they see fit.

[Lord Forsyth of Drumlean]

My Lords, I thank my noble and learned friend for that very disappointing reply. Should the Government not get together with the Scottish Government and end the scandalous discrimination against students from England, Wales and Northern Ireland, who have to pay up to £36,000 to go to a Scottish university, where Scottish, Italian and French students can go for free, and where anyone else in the European Union can also go for free? Meanwhile, under the Barnett formula, people from the rest of the United Kingdom are funding a grant for Scotland that works out at about 20 per cent more per head than is spent in England. This is not sustainable; it is unfair to our young people; it is bad for the union; and should the Government not do something about it?

[Lord Wallace of Tankerness]

My Lords, I recognise the sensitivity of the issue—and the tenacity with which my noble friend pursued it in Committee and on Report. It is totally in character that he should continue to do so. As I indicated, fees are only one part of the question. Different student support arrangements are in place in different parts of the United Kingdom. Support for English students, including English students studying in Scotland, is more generous than for Scottish students studying in Scotland. The universities in Scotland have also made generous bursary arrangements for English students wishing to study at Scottish universities. It was suggested on Monday that there should be pan-UK discussions on the matter. I indicated then that I would relay that to the Department for Business, Innovation and Skills. That proposal has been relayed. However, I do not wish to raise unrealistic expectations. It might be useful for Administrations in all parts of the United Kingdom to come together and discuss the issue.

[Lord Morgan]

My Lords, why are university vice-chancellors thought to be so passive in this matter? We were told the other evening that they had no alternative, and that the lawyers had explained this to them. We were told that they could not revise their financial calculations. University vice-chancellors are supposed to be chief executive officers capable of responding quickly to sudden changes. Why can they not act to remedy an obvious injustice that stains the good name of their universities?

[Lord Wallace of Tankerness]

My Lords, it was not the university vice-chancellors but the Scottish Government to whom legal advice was given about the limitations with regard to European Union law. The noble Lord asked about vice-chancellors. I received a letter from Steve Chapman, the principal and vice-chancellor of Heriot-Watt University, urging me to resist my noble friend’s amendments. That shows that universities in Scotland have been responsive. He wrote that universities had put in place arrangements that meant that English students were not disadvantaged if they chose to study in Scotland instead of England, including the availability of bursaries and other forms of financial assistance at a level that was at least as high as that offered by English universities.

[Baroness Randerson]

My Lords, in the past the same EU anomaly applied to Wales. The Welsh Government have subsidised Welsh students studying in Wales, as well as EU students. Now they plan also to subsidise Welsh students studying in England. Is it the view of the Government that this would place an obligation on the Welsh Government also to subsidise EU students in England?

[Lord Wallace of Tankerness]

My Lords, I recollect a similar situation arising in Scotland. I cannot indicate that the UK Government have considered the position with regard to Wales. When I visited the University of Glamorgan last summer, I got my ear bent on the university student funding issue. However, as I indicated in my Answer to my noble friend, there would be merit in all the United Kingdom Administrations responsible for higher education getting around a table, teasing out some of the issues and learning from each other.

[Baroness Liddell of Coatdyke]

My Lords, I have always regarded the noble and learned Lord as a very fair man. He is in the very difficult position of having to justify the manifest unfairness towards English, Welsh and Northern Irish students. I welcome the initiative in seeking to reopen discussions with the Department for Business, Innovation and Skills. Will he also look at anti-discrimination legislation, because this is a clear case of discrimination against students from these three parts of the United Kingdom, and at the end of the day rich students will still be able to come to Scotland while those with humbler means will find it even more difficult?

[Lord Wallace of Tankerness]

My Lords, I cannot accept the proposition of the noble Baroness. As I indicated, the support arrangements available for students domiciled in England apply whether they are studying in England or at a Scottish university. Scottish universities have put in place generous bursary arrangements to help students coming from England and other parts of the United Kingdom. Students from England, whether they are studying in Scotland or England, will not have to pay off any of their loan until they are earning at least £21,000. That should not deter students from poorer backgrounds from coming to Scotland.

[Lord McFall of Alcluith]

My Lords, is it not the case that the Scottish Government are forcing the Scottish Funding Council to cut funding by more than £100 million over the next four years, thereby jeopardising the student experience and the teaching quality of the universities? Surely the Scotland Office as well as BIS should engage with this so that we can play fair by students not just in Scotland but in the whole of the United Kingdom?

[Lord Wallace of Tankerness]

My Lords, the position with which the Scottish Government were faced, once this Parliament had agreed a position on student fees and funding support in England, was that they could not risk Scotland becoming the cheapest option for students from the rest of the United Kingdom. Doing nothing would have created an unparalleled level of competition for places at Scottish universities, and there was a concern that this would squeeze out Scottish students from Scottish universities. As I indicated in debate and in answer to this Question, these are serious issues, and I do not minimise the strength of feeling among noble Lords. However, with European Union law on one side and the principle of devolution on the other, we must try to find a course—but I will not raise expectations of something that may be very difficult indeed.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Wednesday 28th March 2012 Lords Chamber

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

My Lords, I welcome the debate and the amendment moved by my noble friend. Although he has indicated that the amendment might not be appropriate for the Bill, the way in which he has moved it and the issues he has raised have clearly won widespread support across the House. I certainly recognise the spirit in which he moved it and I endorse the points that he has made. He said that it is time to get on with the informed debate rather than debate the process, and I warm to that because there is a host of important issues that need to be analysed.

It is worth bearing in mind that the Scottish National Party has been pushing for a referendum to be held for many years, and it has repeatedly been asked to set out what it means by an independent Scotland. As my noble friend said, the onus is on it to set out what it means by independence. Individuals, businesses and civic Scotland have been calling for urgent clarification of what independence would mean for their livelihoods, for their workplace and for their families.

In September last year my right honourable friend the Secretary of State for Scotland asked the Scottish Government just six of the many questions that need answering, and these have been echoed in your Lordships’ House today. How would membership of international organisations, including the European Union, be assured? What will Scotland’s defence posture and the configuration of Scotland’s Armed Forces be? How many billions would Scotland inherit in pension liabilities? Who would pay for future pensions? What regulation would be applied to Scottish banks and financial services and who would enforce it? Which currency would Scotland adopt, and how could entry and influence be guaranteed? Lastly, how much would independence cost—what is the bottom line?

Noble Lords also raised other questions. The noble Lord, Lord McCluskey, asked about the legal implications of independence. The noble Baroness, Lady Liddell of Coatdyke, in raising an important point, reminded us of the number of UK civil servants working for UK departments in Scotland—there are considerably more than the number working for the Scottish Government—and asked what their position would be in an independent Scotland. These questions clearly need answering. There is an obligation on the Scottish Government and the Scottish National Party to provide answers.

Although it is accepted that a statutory obligation on, for example, the Department for Education, the Ministry of Justice or an executive agency to come forward with a Green Paper may not be the way forward, I say to my noble friend and the House that I am confident that all departments will be engaged in setting out the positive case for the union and, by implication, what the other side of the coin would be. We are seized of these important issues.

On a previous occasion my noble friend Lord Forsyth raised the issue—as a number of noble Lords did today—of an independent body to examine some of these matters, and in the other place the right honourable Jack Straw has put forward a similar idea. The proposal has its attractions, as the noble Lord, Lord Browne, indicated. I suspect that the proposal would not pass the test if it came from the Government as it might be seen as not being objective. The noble Lord, Lord Gordon of Strathblane, suggested that a Calman Part 2-type body might be appropriate. Although I can see the attraction of that, I would remind your Lordships that the Scottish National Party did not engage with Calman Part 1. As the noble Lord, Lord Browne, said, for us to have the status of providing objectivity we would have to bring in all the parties. It might not be a matter for the Government, but it might be a matter for those of us who wish to see an informed debate outside government to consider how this might be done in an effective way.

My noble friend made the point that the Scottish Government have an obligation to bring forward their proposals for independence. They have had months to answer the questions put by my right honourable friend the Secretary of State, and yet they still delay in telling the Scottish people what their proposals for independence are. It is important that they should be straight about the implications of independence and what it would cost.

If a Section 30 order were used to give the Scottish Parliament the power to legislate for a referendum on independence, my noble friend’s amendment would have the effect of requiring that it should be solely on the question of independence and be administered by the Electoral Commission. As set out in our consultation, and as emphasised during the debate on the subject in Committee, it is our view that any referendum should have a single, straightforward question on independence and should be overseen by the Electoral Commission.

Section 10 of the Political Parties, Elections and Referendums Act 2000 allows the Electoral Commission to give assistance to various bodies, including the Scottish Government and the Scottish Parliament. This means that the Electoral Commission could provide advice and assistance to the Scottish Government now about the independence referendum should they so request. However, the Government do not want to rely on this general duty. It is important that the Electoral Commission should be required to consider and report on any referendum question about independence. It is not necessary to make an amendment to the Bill to achieve that. A Section 30 order devolving the power to the Scottish Parliament to legislate for a referendum could clarify this power by requiring that the referendum was on a single question, held in accordance with the PPERA framework and overseen by the Electoral Commission.

--- Later in debate ---

[Lord Maclennan of Rogart]

My noble and learned friend has indicated his firm view, which I am sure is shared by the House, that the Scottish Government should answer some of the questions that have been raised in this debate. Does he also accept—I presume that he does—that it is for the Government of the United Kingdom to put forward their views about what are the issues at risk? It is not necessary to answer all the questions, but they should at least make that clear. We cannot have any confidence that the Scottish Government will do that.

[Lord Wallace of Tankerness]

The very fact that my right honourable friend the Secretary of State posed these questions shows that the UK Government are seized of what the key questions are, as raised by your Lordships in debate. I will certainly ensure that colleagues right across the Government are aware of the kind of issues that have been raised in this debate. There is no doubt that the United Kingdom Government want to keep the United Kingdom together. We believe that this is the best option not only for Scotland but for the United Kingdom. It goes without saying that we want to ensure that there is a debate that is as informed as possible and that the case for Scotland continuing to be a part of the United Kingdom is made as forcefully as possible. Points raised by your Lordships today will certainly inform the arguments that are put forward in the referendum debate. I share the view of my noble friend that the sooner we get on with the substance of the debate and move on from process the better it will be.

[The Earl of Caithness]

My Lords, can my noble and learned friend inform the House whether he has had an invitation from the Scottish Government to give evidence to the committee that they have set up to look at the economic consequences of independence?

[Lord Wallace of Tankerness]

My Lords, I have not.

[Lord McFall of Alcluith]

My Lords, further to the point made by the noble Lord, Lord Maclennan, I would say that the debate in Scotland is currently at a high temperature and needs to be lowered so that people can digest the information. If one looks at the Calman report, as I have done, and at the reports of the Scottish Affairs Select Committee in the House of Commons—which has had a plethora of witnesses—one will find many profound issues raised which have not yet reached the public level. It is important, and incumbent on the UK Government, to ensure that that information is put out to the public, for example in the form of a consultation paper. The UK Government need to engage. There cannot be a passive stance to this. I would leave the Minister with those thoughts as he progresses with the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I do not think that the United Kingdom Government will be passive on an issue as important and fundamental as this one; I can assure the noble Lord of that. I share his view—I would say this, wouldn’t I?—on the Calman commission, and not only in regard to specific recommendations on devolved and reserved boundaries and financial powers. Both in the interim report published in December 2008 and in the final report, parts of which were referred to by the noble and learned Lord, Lord Boyd, on Second Reading, there are some very good arguments about the importance of our economic, social and political union. I commend these reports to Members of the House. They make a very good case for our union.

[Lord Pearson of Rannoch]

My Lords, I may have missed it, but I did not hear the noble and learned Lord, in his list of areas that will need dispassionate and honest analysis, mention a share of the national debt, much of which, of course, has been caused by expenditure in Scotland.

[Lord Wallace of Tankerness]

My Lords, I did not mention that, but it is a pertinent point. Some academic bodies have produced reviews on it.

[Lord Forsyth of Drumlean]

My Lords, we have had a very interesting debate. I know that my noble friend Lord Shrewsbury has waited patiently to move his amendment and I am sure that he would appreciate it if I did not say very much. So I will not, other than to make one point to my noble and learned friend.

I thank my noble and learned friend for the response, which is very encouraging. However, for once he was a little more aggressive than I am, when he said that he wanted government departments to make the positive case for the union. That is not what this amendment is about—I do not want government departments to make the positive case for the union, I want them to set out, objectively, what issues should be tackled. I do want Secretaries of State and Ministers to make the positive case for the union and hope that my noble and learned friend might ensure that the Prime Minister—who has said that he will fight to defend the United Kingdom to the last breath of his body, I think—is aware of the strength of feeling in this House that government departments should do this. This is not something that can wait until after the Summer Recess. They should be doing it now. One by one, these departments should be setting out what the issues are. It would be completely disastrous, and actually quite wrong, if we were to allow government departments to step into the area where they were involved in advocacy as opposed to providing information. That would undermine the whole nature of the debate. There are plenty of advocates for the union—what we need are the facts. The First Minister is very fond of quoting Burns:

“But Facts are chiels that winna ding”.

I beg to withdraw the amendment.

--- Later in debate ---

[Lord Browne of Ladyton]

First, my Lords, I thank the noble Earl for his great courtesy in writing to me extensively on this issue to introduce the arguments that he intended to make in support of his amendment. I was in the privileged position of having almost all of the points that he made in advance of his addressing your Lordships’ House, so I thank him for that. Unfortunately, despite his great courtesy to me, I cannot find myself being in a position of supporting his amendment. I am sure that he will appreciate why since, in Committee, I argued for even greater devolution of responsibility over air weapons to the Scottish Parliament. It would be entirely perverse and inconsistent for me now to support the restriction on the exercise of the limited devolved powers that the Scottish Parliament is going to receive, having made that consistent and coherent point before.

I do not accept the dismissal by the noble Lord, Lord Forsyth, of this argument as not being sufficient justification, because to restrict the power that one devolves in this fashion undermines devolution. I do this for two reasons. First, if we agree to devolve this power to the Scottish Parliament, we should trust that Parliament with this power. Secondly, I see no reason to believe that the Scottish Parliament would not be persuaded by the arguments that the noble Earl has made about the potentially unintended consequences of an onerous regulatory process. I am sure that, in consultation, it will be capable of regulating in a way that deals with the issue at the heart of the noble Earl’s amendment, although not at the heart of his broader argument about implications.

I do not propose to repeat all the reasons why the people of Scotland are so exercised about the misuse of air weapons, and why there is a public demand for some form of regulation. I and the noble Lord, Lord Forsyth, have spoken about those before. I congratulate the noble Earl on giving us, in the official record of our debate, a repository of the success of restrictions imposed on air weapons and the obvious effect that sensible regulation has had on their misuse. It would be utterly ungracious of me to point out that I do not remember the Gun Trade Association arguing for these restrictions, and I remember being persuaded on some occasions by lobbying from that area that these restrictions would not work, and would merely cost a lot of money unnecessarily. However, that does not alter the fact that at some stage these arguments may prove to be true, even if they did not in relation to those restrictions.

I congratulate the noble Earl on at least being honest and willing enough to say, from the perspective and interest that he has, that regulation of this nature can be positive and can have a beneficial effect and that if it perhaps has a cost, and if that cost is saving lives or injuries, then it is a cost that society may be prepared to bear.

For the reasons I have given, I am unable to support the noble Earl’s amendment but I congratulate him on his contribution to the debate today, and on providing a quarry of argument which I am sure will inform the Scottish Parliament’s exercise of the powers that I hope it will be given.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Shrewsbury for again giving the House the opportunity to discuss these matters. His amendment seeks to ensure that if, following devolution of the regulation of air weapons anticipated by this clause, the Scottish Government were to introduce a system of visitor permits for air weapons, holders of firearms or shot-gun certificates issued in other parts of the United Kingdom would not be required to obtain such a permit in order to use air weapons in Scotland. As has been said, in devolving the regulation of air weapons, the Government are acting on a recommendation of the Calman commission, and we believe that the regulation of air weapons is best controlled locally. My noble friend Lord Shrewsbury has made a very well reasoned case and, as has been noted, he indicated that where sensible and proportionate restriction or regulation of air weapons has been used, it has been done so to some effect. Nevertheless, it is our view, as indicated earlier and in the Bill, that this issue is better decided by the Scottish Parliament.

I do not think that this is a small point. I say to my noble friend Lord Forsyth that the nature of devolution is that a power is devolved, and it is then up to the devolved body to determine how it wishes to exercise that power, obviously within the constraints of the law—and, taking into account some of the very pertinent points made by my noble friends Lord Shrewsbury and Lord Gardiner of Kimble, when that body comes to make policy conclusions. Not the least of these is the cost effectiveness. My noble friend has focused on the cost implications of establishing and enforcing a licensing regime, and I recognise the points that he has made so clearly. These will be matters for the Scottish Parliament and Scottish Government to take into account. We hear them regularly talking about the restrictions and restraints on their funding, but the block grant will have to fund any measures that they take. This will obviously be one of the considerations that they have, obliged as they will be to put forward with any accompanying Bill a memorandum on its cost implications.

As I know my noble friend is aware, the Scottish Government have set up a Scottish firearms consultative panel, and I understand that the director of the Gun Trade Association, an organisation of which my noble friend is the honorary president, sits on that panel. The panel is currently considering, if there is to be devolution of this power, how best to implement any proposals for regulating air weapons. The panel will consider cross-border issues. Indeed, I understand that there was a meeting on Monday at which cross-border were on the agenda. If this amendment were included in the Bill, it would fetter the Scottish Government’s and Scottish Parliament’s discretion as to how they might go about the task of regulating air weapons following devolution and would second guess the ongoing work of the Scottish firearms consultative panel. However, as I have indicated, the arguments put forward by my noble friend are very persuasively articulated. I am sure that the Scottish Government will be open to representations made to them when they are shaping any legislative proposals.

My noble friend Lord Caithness raised the possible costs that would feed through into other parts of the United Kingdom. Those will of course depend on the actual nature of the policy that is put in place. I see the noble Lord, Lord Empey, in his place. He will no doubt correct me if I get this wrong, but perhaps it is worth bearing in mind that, as I understand it, air weapons are controlled in Northern Ireland and any person wishing to go there from Great Britain with an air weapon must apply for a certificate of approval. There is a special form available on the website, which needs to be submitted via a sponsor about six weeks in advance of any visit, but there is no fee. However, a visitor to Northern Ireland from outwith Great Britain requires a visitor’s permit, the point being that air weapons are already devolved to Northern Ireland. I have always believed that one of the strengths of devolution ought to be a willingness to look at experience in other parts of the United Kingdom where policies have been taken forward. Indeed, there is a policy already in place regarding the regulation of air weapons. I hope that what happens in Northern Ireland will be looked at by the consultative panel.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

4: Clause 12, leave out Clause 12

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

5: Schedule 2, leave out Schedule 2

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

7: Clause 13, leave out Clause 13

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, Amendments 9 and 10, tabled by the noble Lady, Lady Saltoun of Abernathy, and supported by the noble Lord, Lord Browne, and his colleagues, would change the name of the Scottish Crown Estate Commissioner to the Crown Estate Commissioner with special responsibility for Scotland. As the noble Lady indicated in moving her amendments, she made that suggestion in the Committee stage debate. I indicated at the time that I found the suggestion helpful and committed to reflecting further on the proposal.

I confirm that the Government’s original name included in the Bill was taken from the commission’s own proposals and discussed with the Crown Estate. However, the Government are happy to accept the proposal from the noble Lady. As indicated by the noble and learned Lord, Lord Cameron of Lochbroom, we believe that the revised name—it is not a question of whether it came from the Cross Benches rather than the Opposition—will properly reflect the role that that commissioner will play. That role will not be exclusively for Scotland; indeed, contributions to our debate in Committee from people with experience, such as the noble Lord, Lord Curry, indicated the value of having commissioners who would have responsibilities across the United Kingdom. We are therefore wiling to accept Amendments 9 and 10. As the noble Lord, Lord Browne, has indicated that he does not intend to move Amendment 11, the mode of appointment would seem to be acknowledged and accepted.

[Lady Saltoun of Abernethy]

My Lords, I have been in this House for 32 years and this is only the second time that I have had an amendment accepted. I am delighted.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, my noble friend tabled amendments on this matter in Committee and I recall some very interesting debates on them. The Government have included powers in the Bill to allow Scottish Ministers to determine the national speed limit on roads in Scotland. I say to my noble friend the Duke of Montrose that the amendment seeks to ensure that the measure applies to motorways and dual carriageways, which have national speed limits at the moment. There is a power to make regulations to specify traffic signs to indicate that limit. The powers currently set out in the Bill are limited to cars, motor cycles and vans under 3.5 tonnes. The Government drafted the provision in this way as there is already a single clear sign that denotes the national speed limit for cars, motor cycles and vans under 3.5 tonnes. The Bill will allow Scottish Ministers to create a new sign and educate people on its meaning for any change to the national speed limit in Scotland.

As I highlighted in Committee, for different vehicles, including HGVs and caravans, either separate signage would be required, or the speed limit for these classes of vehicles would remain unsigned as now, but people would need to be aware that different speed limits could exist across Great Britain for these types of vehicles.

However, we have listened carefully to the arguments presented by my noble friend and by other noble Lords, including the noble Lord, Lord Browne, on the Benches opposite. I commend my noble friend and others for pursuing this issue. I think it is fair to say that those of us who served on the Calman commission were not made aware of the distinctions or of the importance of signage. We may consider that my noble friend’s amendment would give fuller substance to what was originally proposed. Together with the case made by the Scottish Parliament and the Scottish Government for the Bill to provide for devolution of the regulation-making powers for setting the national speed limit for all classes of vehicles, we have decided to accept Amendment 12 tabled by my noble friend, so clearly he has managed to get me while I am on a roll. However, in accepting the spirit and the principle of the amendment, I must make it clear that it will require redrafting to ensure that the measure applies to all roads and not just special roads. Therefore, we will bring forward an amendment at Third Reading which addresses the technical issues and gives full substance to the amendment which my noble friend has tabled. I thank him for his persistence in this matter. I hope he welcomes the fact that it has had a positive outcome. I note that he does not intend to move Amendment 13. Therefore, I shall not speak to it.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

14: Clause 26, leave out Clause 26

Scotland Bill

Lord Wallace of Tankerness Excerpts

Monday 26th March 2012 Lords Chamber

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

I beg to move that the Report be now received.

Lord Forsyth’s amendment to the Motion not moved.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

1: Clause 7, leave out Clause 7

[Lord Wallace of Tankerness]

My Lords, your Lordships will remember that last Wednesday I indicated that agreement had been reached between the United Kingdom Government and the Scottish Government on a number of changes to the Scotland Bill and supporting non-legislative measures. Following this agreement the Scottish Government tabled a legislative consent Motion recommending the Scottish Parliament support the Bill. The amendments in this group are part of the changes to the Scotland Bill as a consequence of the agreement that has been reached between the Government and the Scottish Government to ensure that the Bill continues to retain the support of the Scottish Parliament, previously affirmed in an overwhelming vote of support in March 2011.

These amendments will remove Clause 7, Clause 12 and the associated Schedule 2, Clause 13 and Clause 26 of the Bill. With regard to Clause 7, the Government’s intention in pursuing the limited reference procedure contained in that clause was to prevent unnecessary delays to Bills in the Scottish Parliament, where the majority of provisions are considered to be within the legislative competence of that Parliament. The Scottish Government had raised concerns that this clause could have potential for introducing unintended consequences and delay in enacting legislation in the Scottish Parliament.

Likewise, during Committee consideration, the noble and learned Lord, Lord Boyd of Duncansby, raised concerns about whether the provision was necessary, as he believed that the existing arrangements appeared to be adequate. As a result of our discussions with the Scottish Government, we have agreed that this clause should be removed. The Scottish Government accept that in future, as at present, only a full Act of the Scottish Parliament can be referred to the Supreme Court, even if only a single provision raises competence issues.

Amendment 14 removes Clause 26 from the Bill. This would have allowed UK Ministers to implement international obligations on a UK basis, where it would be more convenient to take action on such a basis. The Scottish Government believe that this clause could undermine the clarity about which Parliament and which Ministers have responsibility for a particular matter. Both Governments acknowledge the importance of ensuring that all of the United Kingdom's international obligations are fully implemented across the UK on a timely basis.

The UK Government are willing to remove this clause, on the understanding of course that Scottish Ministers will ensure that any international obligations that fall within their responsibility are implemented on time. In turn, we have made clear to Scottish Ministers that the Government would be prepared to use their existing powers of direction under Section 58(2) of the Scotland Act 1998, should we have concerns about the implementation of international obligations within the remit of Scottish Ministers.

Clause 12 and associated Schedule 2 relate to insolvency. It would have returned legislative competence back to the United Kingdom Parliament in relation to all aspects of the winding up of business associations. The United Kingdom Government continue to believe that, where appropriate, Scottish procedures for insolvency should be in step with the rest of the United Kingdom. Our discussions with the Scottish Government have provided us with assurances that these concerns can be addressed without amending the devolution settlement in this respect. We therefore seek to remove this clause on the understanding that the Scottish Government will consider the modernisation measures for the devolved areas of winding up in Scotland introduced into the reserved insolvency procedures in 2009 and 2010; and have provided assurances that future changes made by the UK Parliament or Ministers in this area will be considered timeously by the Scottish Government in their area of competence.

Finally, Amendment 7 seeks to remove Clause 13, dealing with the regulation of health professionals, from the Bill. While the Scottish Parliament has had power to introduce for Scotland separate legislation in respect of regulating a number of health profession—that is, those not listed by reference to specific statutes in Schedule 5 of the Scotland Act—it has chosen not to do so. Rather, it has approved the use of the existing, reserved machinery, in the form of orders made under Section 60 of the Health Act 1999, to regulate new groups of healthcare professionals.

During our discussions with the Scottish Government they raised some concerns about this clause. The Scottish Government have provided us with clear assurances that they will work closely with the Government to ensure that consistent regulatory regimes apply to all health professions. Given these assurances, the Government are content to continue to develop policy in relation to regulating the health professions with the Scottish Government. The United Kingdom Government, through the Department of Health in England, will continue to engage closely with officials, not just in Scotland but also in the Administrations in Northern Ireland and Wales, to develop future policy proposals concerning the regulation of healthcare professionals.

The Government have received assurances on all these matters that the same effect that was sought by provisions in the Bill can be secured by non-legislative means. On that basis we have agreed to seek to take out the provisions from the Bill. I beg to move the amendments.

[Lord Foulkes of Cumnock]

My Lords, I wonder if this would be a good opportunity for the Minister in his reply to inform the House what will now happen in relation to the legislative consent Motion. It would be helpful if he could briefly give us a timetable about when it will be considered by the Scottish Parliament and the procedures thereafter. If there are any problems, how will this House be informed? Does he envisage that the legislative consent Motion will be passed through the Scottish Parliament without any difficulty; and are there any further procedures that may be necessary within this Parliament following the passage of the legislative consent Motion?

--- Later in debate ---

[Lord Pearson of Rannoch]

My Lords, before the noble and learned Lord sits down, perhaps I could associate myself with his earlier remarks. I regret that I have not taken part in the proceedings on this Bill until now. I was not sure whether or not I should declare an interest as someone who spends most of the year in Scotland. Now that I have worked it out that I do not, I feel free to join in.

My specific question follows what the noble and learned Lord, Lord Boyd, said. Our Companion requires that there should be 14 days between Committee and Report. On this occasion, there has been one working day, which was a Thursday. I have never formed part of the usual channels—and never will—so can the Minister explain to your Lordships how this decision has taken place at this stage of this hugely important Bill to the Scottish people, who have not been consulted about it at all?

No one has told the Scottish people that this Bill is going to result in them paying more tax in future, and no one has asked them. All we are being told is that the manifestos said that the Calman commission results were going to be taken seriously, but no one knew at the time of the election that this was going to be the outcome. I am sure that the Minister is not personally responsible but I ask him to explain to us how and why this decision was taken, in view of the enormous importance of these matters to the Scottish people.

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have taken part in this debate. I heard the stringent comments of the noble and learned Lord, Lord Boyd of Duncansby, echoed by the noble Lord, Lord Pearson of Rannoch. I am sure that they will be noted. Having had experience of the House of Commons, the Scottish Parliament and your Lordships’ House, if there is a thread that links these three experiences it is that the usual channels have currents and depths that I have rarely, if ever, been able to fathom.

[Lord Sewel]

Of course we do not hold the Minister at all responsible for what happens in the usual channels, but it seems rather perverse that we have discussed this Bill late at night and on Thursdays, under pressure of time. I accepted that because of the nature of the parliamentary timetable, but then we were told that we are having an extra week’s recess. Those extra days would have enabled this Bill to be given the due and proper consideration that it deserves, and I hope that the Minister and my noble and learned friend on the Front Bench will pass on those comments to the usual channels.

[Lord Wallace of Tankerness]

This almost proves my point. I am sure that these points will be noted and I will indeed draw them to the attention of colleagues.

With regard to the further point made by the noble Lord, Lord Pearson, about the number of days between Committee and Report, it was agreed between the usual channels, and as a result of a delay for further sessions in Committee to take place after the end of the consultation on the referendum, there was a need to reduce. As I indicated, that was agreed. In response to his further point, all parties—or at least all non-Scottish National parties that fought elections in Scotland: the Labour Party, the Conservative Party and the Liberal Democrats—had these proposals in their manifestos and I do not think it is fair to say that they had not been aired at all prior to the general election, nor indeed since.

I welcome the general support that the noble and learned Lord, Lord Boyd of Duncansby, has given to these moves, in the spirit of seeking agreement. He asked about insolvency. Specifically, there will be engagement with the Scottish Government to ensure that the modernisation programme contained in the reforms of 2009-10 is delivered in Scotland for the benefit of those affected by corporate insolvencies.

More generally, the Accountant in Bankruptcy is an executive agency of the Scottish Government that holds policy responsibility for devolved insolvency matters in Scotland, and the Insolvency Service is aware of the need to stay in close contact with counterparts in the Accountant in Bankruptcy’s office, as indeed already happens, to help ensure that as far as possible developments in insolvency law in devolved areas do not create unnecessary difficulties for users of the legislation. So there are the specific provisions of the 2009-10 changes, which we have had assurances will be implemented, and there is a means by which we can maintain contact and dialogue in the longer term.

With regard to health professionals, like the noble and learned Lord, I was a member of the Calman commission and certainly took this matter seriously. He will appreciate that we have agreed to seek removal of this clause on the receipt of assurances that the Scottish Government will work with us to ensure consistency in the regulation of health professionals. I sometimes wonder if we had had some representations from the Scottish Government when we sat on the Calman commission whether we might have been able to reflect those in the report, but that was not the case.

The noble Lord, Lord Foulkes, asked about the procedure from here on in. In his letter to my right honourable friend the Secretary of State, the Scottish Cabinet Secretary for Parliamentary Business and Government Strategy, Mr Bruce Crawford, having gone through the terms of the agreement, indicated:

“I can therefore confirm that the Scottish Government is now prepared to recommend to the Scottish Parliament that it consents to the Bill, amended in line with your proposals, and supported by the undertakings in your letter”.

Of course, it will be a matter for the Scottish Parliament. It is my understanding that the Scotland Bill Committee of that Parliament will meet to discuss the amendments on Wednesday. We expect that the legislative consent Motion will be debated after the Easter Recess but before Third Reading in your Lordships’ House. Given the engagement that there has been, I very much look forward to the Scottish Parliament approving the Motion to support the Bill. I hope that answers the noble Lord’s inquiry.

[The Earl of Caithness]

Before my noble friend sits down, could he comment on his final point? If the legislative consent Motion is agreed by the Scottish Parliament before Third Reading and we pass an amendment at Third Reading, what is the situation then?

[Lord Wallace of Tankerness]

I suspect that the Scottish Parliament may have something to say about it if it is something that it does not agree with.

Amendment 1 agreed.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, once again, as we did in Committee, we have had a passionate debate. As I think the noble Lord, Lord Browne, said in his closing comments, it has been a debate where clearly there is a strong emotional sense that what happens at the moment is not right. I want to salute my noble friend Lord Forsyth for the tenacity with which he has pursued this issue. I indicated in Committee that I certainly would reflect on the strong views expressed then. As I said, my officials and I have engaged with the Department for Business, Innovation and Skills, and indeed with Universities Scotland. These are discussions to see if we could identify some way to resolve this problem rather than just accept an anomaly that we must live with, as my noble friend Lord Vallance said.

[Lord Gilbert]

My Lords, I realise that it is normal to intervene towards the end of a Minister’s remarks, but I think on this occasion it is rather more helpful to intervene at the beginning. What I would like to know is: when are we going to have the dinner break?

[Lord Wallace of Tankerness]

I probably share the noble Lord’s feelings on this. For that reason, I think it is only right that I do proper justice to the many comments that have been made; but I will try to do so as concisely as possible so that we can proceed. I accept and I have heard again the strictures that have been made about the timing.

As was expressed very clearly by the noble Lord, Lord Empey, today we are debating an issue caused by the fact that higher education is devolved across the United Kingdom.

This UK Parliament is responsible for higher education in England, in Scotland the Scottish Government are responsible, in Wales the Welsh Assembly has responsibility and in Northern Ireland the Northern Ireland Executive has responsibility. All four countries in the UK have chosen to fund higher education in different ways. Because of EU law, and my noble friends Lord Stephen and Lady Brinton have both explained the limitations of what is permitted under EU law, non-UK EU students in universities in the UK are entitled to the same financial support regarding tuition fees as local students. We recognise, and perhaps this is common ground, that our challenge is to ensure access to university education and to ensure the quality of that education.

A point that I should make at the beginning, and I will deal with this in a little more detail as I proceed, is that English students attending Scottish universities should be no worse off than English students attending English universities as a result of the present arrangements. The latest figures from UCAS at 21 February this year, compared with the same date a year earlier, show that as a proportion of the total number of applicants so far, prospective English students have not been put off from applying to Scottish universities. In both years, 5 per cent of the total population of applicants have applied to a Scottish university. That is a circumstance where the English students are aware that they would be no worse off if they choose to attend a university in Scotland than if they went to a university in another part of the UK.

I do not want to open this up into a wider debate on tuition fees but the noble Lord, Lord Browne, indicated that part of the Scottish Government’s response to the UK Government deciding that, to ensure the long-term sustainability of higher education, tuition fees were to be increased was that the Scottish Government had decided to fund undergraduate tuition fees for Scottish students and directly fund Scottish universities, which are therefore able to charge students from the rest of the UK up to £9,000 a year. This means that attending university in Scotland, as I have said, should be no more expensive per year for an English student than for an English student attending a university in England. Indeed, as university courses in Scotland are typically four years long, many Scottish universities have committed to charging students from the rest of the UK a maximum of £27,000 for a four-year course—the same as the maximum fee that students would pay for a three-year course in England.

The fee, however, is only one part of the equation of student finance. The universities of Edinburgh and St Andrews, which have not capped for a four-year course, have both committed to providing generous bursaries to students from the rest of the UK. Little has been said in today’s debates about that aspect of student finance. Edinburgh University is offering bursaries of up to £7,000 a year to the least well-off English students, which they can use either to reduce their fees or to help them with their living costs. St Andrews University will be topping up support for all English students who qualify for a maintenance grant so that they will receive no less than £7,500 a year in total government and bursary support.

That is why I do not recognise what the noble Lord, Lord O’Neill, said about only the very rich paying up-front fees. It is not a question of up-front fees; for English students in England or Scotland, the loans that cover the fees do not start to be repaid until they are earning at least £21,000 a year.

[Lord O'Neill of Clackmannan]

How many students are likely to benefit from these awards? The noble Lord, Lord Sutherland, has already made the point about the generosity of the Edinburgh settlement, but what we have not heard today is how many students will be eligible to apply and therefore benefit from such a generous scheme, which I freely acknowledge it is.

[Lord Wallace of Tankerness]

My Lords, I cannot give the full figures at the moment but the position is that all Scottish universities have announced their proposed fees for the rest of the United Kingdom, and the average per annum is £6,841. Work undertaken by Universities Scotland and accepted by NUS Scotland shows that this drops to an estimated £6,270 fee after means-tested bursary support is accounted for. In England, the average per-annum fee is £8,470, dropping to £7,815 when fee waivers, bursaries and student support are taken into account. Over the totality, the average in Scotland is certainly less. Universities Scotland has indicated that the average fee paid by students in receipt of means-tested bursaries—an estimated 4,281 students based on current populations—would be £4,262. Many will pay significantly less than this, with around 25 per cent of all English students studying in Scotland expected to benefit. That is an indication of the average. When one takes bursaries and fee waivers into account for English students studying in Scotland, it would be less than would be the case for English students studying in England.

[Lord O'Neill of Clackmannan]

I am grateful to the Minister for the breadth of his answer. But he did not actually answer the question I wanted: the number of students. It is 25 per cent of how many? I realise that it is a considerable improvement and a generous offer, but we still need to know what the numbers are. We know that three times as many students coming to Scotland will not be getting any of these generous endowments, but the other 75 per cent do not need them.

[Lord Wallace of Tankerness]

My Lords, I am afraid that I do not have the figures for each university institution. One does not really know until the applications are in and turned into acceptances. However, I hope that I have indicated that the average will be less in Scotland, taking into account bursaries. It is also important to point out that the United Kingdom Government provide support to English students. Some may say that it is more generous than the support provided to Scottish students by the Scottish Government in terms of living support. In that situation, English students are entitled to a loan for the full cost of their tuition fees, regardless of where in the United Kingdom they study. This loan is not repayable until students have left university and are earning over £21,000, and even then, at only 9 per cent of earnings over £21,000.

To help with living costs, English students are also entitled to a maintenance loan of up to £5,500 and a grant of up to £3,250. All students are entitled to a loan of at least £3,575 regardless of their household income; and English students will receive a larger amount of maintenance grant compared to Scottish students with the same household income. So if one accepts my noble friend’s amendment in terms of fees, the concern would be that you can equalise fees, but would still have a considerable disparity in student finance and funding. That is because of the more generous arrangements that the United Kingdom Government have made for English students as compared with the arrangements the Scottish Government have made for Scottish students.

My noble friend Lord Forsyth said that students from England would be burdened by substantial debts because they came to a Scottish university. However, the truth is that they would have no greater debt—and arguably a lesser debt—coming to a Scottish university than they would if they went to one in England. That is a relevant point. The noble Lord, Lord Sutherland, acknowledged the fact that bursaries had been made available.

We have tried to look at the possible outcomes of my noble friend’s amendment and we have identified three. First, Scottish universities could begin charging tuition fees to European Union students. We believe that this would be a breach of European Union law and could place the United Kingdom, as a member state, in danger of infraction proceedings. Secondly, Scottish universities could charge Scottish students and therefore also EU students, tuition fees. Thirdly, Scottish universities could stop charging tuition fees to students from the rest of the United Kingdom.

[Lord Forsyth of Drumlean]

That’s it. That is the one.

[Lord Wallace of Tankerness]

My noble friend has indicated which one of the three he favours. I do not think that anyone has actually suggested that we breach European Union law, although the noble Lord, Lord Empey, said that at the heart of that is where the problem lies. If one accepts a devolution settlement across the United Kingdom, it will produce different outcomes in different places.

[Lord Pearson of Rannoch]

Is the noble and learned Lord aware that there is no way, under European treaties, that a country can be forced to pay a European Union fine?

[Lord Wallace of Tankerness]

My Lords, I am not going to embark on a lengthy debate on the pros and cons of the European Union. As the noble Lord, Lord Empey, said—as did many noble Lords who have contributed to this debate—the problem is that if a student comes from Scunthorpe they are charged a fee; if they come from Bratislava they are not. I am certainly prepared to look at whether that European Union problem can be addressed, but I do not to wish to raise any expectation or hope that it can be. It is a piece of legislation that is very firmly in the European Union rules and directives. The Scottish Government have indicated they want to examine it and I am sure we would be prepared to examine it along with them, but I say that without offering a hope that it is likely to be changed.

My noble friend clearly indicated that his preference would be for Scottish universities not to charge students from any part of the United Kingdom. It is our view that that would not be financially sustainable. My noble friend suggested that it would be £24 million in the first year, but of course as one year succeeded another that would be a cumulative amount. The United Kingdom Government have come to the decision that in order to guarantee the long-term financial stability of universities, it is necessary to require students to make a greater contribution to the cost of their higher education. It would be unreasonable and unrealistic to expect the Scottish Government to fund free higher education for students from all parts of the United Kingdom, and in the long term it would be damaging to Scottish universities and their ability to compete with other universities in the UK and worldwide, which potentially have much greater financial resources available to them.

[Lord Empey]

As I said earlier, the issue for me is not the minutiae of the individual operation of devolution in each region—even though we are on the Scotland Bill and the amendment specifically applies to Scotland—it is that there is a difference in treatment between a non-UK EU citizen and a UK EU citizen. Will the Minister give the House an undertaking that he will speak to his ministerial colleagues and perhaps come back to us at a later stage? The issue of how many bursaries we are getting and so on is missing the point. We are not here to examine the entrails of higher education funding in the regions; we are trying to deal with the feeling in the House that we do not like this idea of UK students being treated in this way as opposed to EU students, when UK students are UK students. That is the issue.

[Lord Wallace of Tankerness]

My Lords, I hope that I represented what the noble Lord said, that that is the point, and that is why there is such concern. It is a point that my noble friend Lord Stephen made with regard to the strong misgivings that the Scottish Executive had back in 2000 in having to go down this course. It had to acknowledge that if we went down this course of free tuition fees for Scottish-domiciled students attending Scottish universities, the consequence would be that students from European Union countries attending Scottish universities would have to be treated on the same basis. In Committee, I said that I was then a Member of the Scottish Government and that although it was not something we particularly wanted to do, it was a consequence that we had to accept, however reluctantly, if we wished to bring in a policy of free tuition for Scottish-domiciled students.

I indicated that I am more than willing to look at whether there is a way of resolving this at a European Union level but I do not wish to mislead the noble Lord or the House into believing that there is a realistic prospect of that happening, certainly before Third Reading. It is something that is so deep within the relevant directive that it would be a significant mountain to climb—although I know my noble friend Lord Forsyth is quite good at climbing significant mountains.

[Lord Forsyth of Drumlean]

But not in Europe.

[Lord Wallace of Tankerness]

But not in Europe.

[Lord Empey]

I was not expecting to resolve it at an EU level. I am asking whether we can try to resolve it at a UK level. It is in the UK that this differential has arisen.

[Lord Wallace of Tankerness]

My Lords, I apologise if I misunderstood the point. I think that the noble Lord, Lord Browne, also made the point about some sort of pan-UK discussion on this. I will ensure that that proposal is taken up by the Department for Business, Innovation and Skills. We will certainly relay it to the department, which will undoubtedly be in contact on an official level on a number of issues with those who deal with higher education in the devolved Administrations. Again, however, I should flag up the scale of the challenge of making progress if there is even one Administration who want free tuition and say that they will not change that until the rocks “melt with the sun”—I think that that was the quote. It is a reasonable request that that pan-UK discussion should take place.

[Lord Wills]

My Lords, as an Englishman, I was not going to contribute to this debate. However, having listened to it all, and listened to the Minister’s response, I wonder if he could give the House an indication of whether he understands the damage that this situation is doing to the union. Does he understand that that is perhaps the most fundamental challenge at stake here?

[Lord Wallace of Tankerness]

My Lords, I understand that there is a serious issue here. As the noble Lord, Lord Browne, indicated, if we end up telling the Scottish Parliament what to do—my noble friend Lord Forsyth says that that is not what his amendment says but I think that, de facto, that is what it would lead to—that would be a serious position for the union, and it would undermine the whole devolution settlement. That is why I find this a difficult issue.

I think that my noble friend has, as the noble Lord said, totally underestimated the number of students who would seek to apply to Scottish universities. It only stands to reason that if you can get free tuition at the St Andrews university but would have to pay £9,000 at Durham, you are more likely to apply to St Andrews. The notion of quotas has never been particularly welcomed.

[Lord Sutherland of Houndwood]

I wonder whether the Minister remembers when this argument was last put forward. On that occasion we were, perhaps unusually, on opposite sides of the argument. I was recommending a form of care for the elderly, wrongly categorised as free, and one of the counterarguments was that there would be a—they did not use the word then—tsunami of pensioners crossing the border to Scotland. I think that it would have been more of a steady trickle which grew. It did not happen, although it was claimed that it would.

[Lord Wallace of Tankerness]

My Lords, it is too easy to dismiss the possibility of it happening. It is probably much easier for a student to choose which university he or she would wish to attend than for a pensioner completely to up sticks and settle in a different part of the United Kingdom. I think, with respect, that the noble Lord is not comparing like with like. However, I do recall that when tuition fees were first significantly increased by the then United Kingdom Government, around 2003 or 2004, the then Scottish Government had to respond to it. There were very clear signs that if the Scottish Parliament did not respond to it—and my noble friend Lord Stephen has indicated that it happened again in 2006—there would be an increase.

I should like to make it clear to the noble Lord, Lord Morgan, that I strongly believe that part of the richness of university education—one of its great pluses—is that it includes people from all different backgrounds. Universities in Scotland would certainly take the view that it is important that there should continue to be students not just from other parts of the United Kingdom but from other parts of the European Union and from around the world. That adds to the richness of a university education. They seek to achieve a manageable flow of students from the rest of the United Kingdom which would ensure the long-term stability of universities in Scotland.

[Lord Sewel]

I thank the Minister for giving way. I put it to him that the noble Lord, Lord Empey, has spoken for virtually the whole House in explaining the deep bitterness that people feel about the EU anomaly. In discussions with the First Minister, has the Minister or any of his colleagues pointed out to the First Minister that if he was successful in achieving his primary political policy objective, which is independence, then all these arguments would fall away? There would be the opportunity for English domiciled students to go to Scotland and there would be no way in which a Scottish Parliament would be able to impose a differential fee. Has the Minister pointed that out to the First Minister?

[Lord Wallace of Tankerness]

I have not pointed it out personally but, frankly, it is not the best argument for the case that the noble Lord has been prosecuting. He certainly does not wish to see an independent Scotland; neither does my noble friend Lord Forsyth or anyone who has spoken in this debate. The argument that this will all be the consequence of an independent Scotland is perhaps one argument for why we should resist an independent Scotland.

[Lord Sewel]

I just hoped that there was at least the glimmer and possibility of consistency.

[Lord Wallace of Tankerness]

My Lords, I am not sure that I follow that. What about the consistency of Mr Salmond’s position? I have to answer for a number of things in your Lordships’ House but, fortunately, I do not have to answer for Mr Salmond.

I agree with the comment that the noble Lord, Lord Empey, has encapsulated what the problem is. There are differential solutions around the United Kingdom—Northern Ireland charges £9,000—so simply to adopt this amendment would not solve the problem across the country. I do not believe that the Bill is the right place to address this. I have indicated that we are prepared to look at the European Union dimension and that we are more than willing to engage with the different Administrations. I just do not want to suggest to your Lordships’ House that this matter can be resolved easily; it would be wrong to suggest that. Even if one does not accept the word “tsunami”, the consequences, which could include a complete disruption of the Scottish higher education system, are sufficiently uncertain for it not to be a risk that we can take. Even allowing for one year’s grace, the problems would still arise in subsequent years. Therefore, I urge my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

My Lords, I am most grateful to everyone who has spoken in a very interesting debate. Given the lateness of the hour, I am sure noble Lords do not want me to respond to all the points or to repeat any of the arguments. I am very impressed by the argument from the Labour Party’s Front Bench that if something has been going on for 10 years, you should keep it. That seems a very conservative point of view to me.

In all the arguments about the practicalities and difficulties, all of which can be addressed and overcome, the overriding issue here is one of fairness. Why did I table this amendment? I spent a week at St Andrews. I went there nearly 40 years ago and I have to say that the students now are much harder working and much more focused than they were in my day. They are absolutely outraged by what is happening to them. Those students have a much tougher time ahead of them than any of us in this House had when we left university. We owe it to them to address this problem.

I was not sure whether I would have to press this matter to a vote tonight. However, I have to say to my noble and learned friend that we debated this in Committee, when I urged him to raise it with the Prime Minister and his colleagues. Perhaps this was said in confidence and I should not repeat it, but one of his ministerial colleagues in the Scottish Office called me today to say, “How can we help you with the Scotland Bill?”. I said, “You can help me by accepting my amendment, or at least giving some commitment. What is your position on student fees?”. He said, “We’re waiting to see what the strength of opinion is”. On that basis, I beg leave to test the opinion of the House.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Monday 26th March 2012 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 9, Schedule 1, Clauses 10 to 12, Schedule 2, Clauses 13 to 29, Schedule 3, Clauses 30 to 33, Schedule 4, Clauses 34 and 35, Schedule 5, Clauses 36 to 45.

Motion agreed.

Scotland: Constitutional Future

Lord Wallace of Tankerness Excerpts

Monday 26th March 2012 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government when they expect to publish their response to the consultation on Scotland’s constitutional future.

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

My Lords, on 20 March the Secretary of State wrote to party spokespeople setting out an initial summary of the findings of the consultation. This letter was deposited in the Library and I set out the initial findings during the Committee stage of the Scotland Bill on 21 March. Officials are currently reviewing and analysing the consultation responses and a full summary will be published before the Third Reading of the Scotland Bill.

[Lord Foulkes of Cumnock]

My Lords, will the Minister confess that the Government have broken their promise to publish the response in advance of the Report stage of the Scotland Bill, which we are taking this afternoon? In order to make amends, will he discuss with his colleagues a way of getting every department of government, particularly the Treasury, the Department for Work and Pensions and the Ministry of Defence, to commission independent reports in advance of the referendum on the real costs of breaking up Britain?

[Lord Wallace of Tankerness]

My Lords, I hope the noble Lord will agree that we had a good debate about the referendum in Committee last Wednesday. I was able to give clear indications to the effect that, for example, the majority who responded to the consultation believed that powers should be devolved to the Scottish Parliament and that a great majority of those also supported the use of a Section 30 order. Our initial analysis shows clear support for a single question on independence, for the referendum to be held sooner rather than later, and for the involvement of the Electoral Commission. With regard to the second part of the noble Lord’s question, I hope that all departments will be very much engaged in setting out a positive case for the union.

[Lord Forsyth of Drumlean]

My Lords, first, I thank my noble and learned friend for the undertaking to publish the full results of the consultation before Third Reading. That is very welcome and much appreciated. Secondly, given that the Government have decided not to proceed by amendment of the Scotland Bill to a referendum, will he give an undertaking that in the absence of reaching agreement on a single question organised by the Electoral Commission, the Government will bring forward their own legislation in the next Session of Parliament, as a Section 30 order requires the consent of the First Minister and his officials?

[Lord Wallace of Tankerness]

My Lords, a Section 30 order requires the consent of both Houses of this Parliament and of the Scottish Parliament. As I said last week, if agreement cannot be reached on a Section 30 order and if we are to try to ensure that this matter is kept out of the courts, which would be very helpful, the Government will need to consider what other options are open to them in order to provide a legal, fair and decisive referendum. Many people said that there would be no chance of getting a legislative consent Motion in respect of the Scotland Bill, but that is now within our grasp and is going to happen. I think we should focus our efforts on making sure, as I believe we can, that we get a Section 30 order for a fair, legal and decisive referendum.

[Lord Reid of Cardowan]

My Lords, will the Minister take this opportunity to repeat to the House the assurance he gave in Committee that while the question of whether Scotland wishes to leave the United Kingdom is properly a matter for the Scottish people, any other question that would affect the relationship between the people of the United Kingdom—that is, extended devolution—cannot just be a decision for the Scottish people? It must also be a decision for which there is consultation with either the rest of the people of the United Kingdom or the United Kingdom Parliament.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Reid, makes an important distinction between a question about a referendum on Scotland leaving the United Kingdom and one that would necessarily involve other parts of the United Kingdom. That is why the Government believe it is inappropriate for any referendum to have two questions. He is right to say that if there is to be further devolution, there must be some means of engaging other parts of the United Kingdom. The main provisions of the Scotland Bill, which we are currently debating, were included in the manifestos of the three parties at the last general election.

[The Earl of Clancarty]

Have the Government given any thought to a consultation on England’s constitutional future, bearing in mind that with the increasingly powerful and dedicated representation that the Welsh Assembly and Scottish Parliament afford to their citizens, this country is going to feel increasingly left out?

[Lord Wallace of Tankerness]

My Lords, I hope that in our arguments and debates about a referendum on Scotland’s future, we can make it clear that not only do we believe that Scotland is better off within the United Kingdom, but the United Kingdom is better off with Scotland.

The noble Earl will be aware that a commission has been set up to look at the implications of devolution for the procedures in the House of Commons, under the chairmanship of the Sir William Mackay. We await the outcome of that commission.

[Lord Hunt of Kings Heath]

My Lords, coming back to the original Question, will the noble and learned Lord accept that with the Bill in your Lordships’ House at the moment, it is completely unacceptable for the full consultation not to be published until just before Third Reading? Will he accept that in view of that, and the fact that noble Lords may well wish to lay amendments on Third Reading, there should be greater latitude for amendments to be laid at that stage?

[Lord Wallace of Tankerness]

My Lords, I do not necessarily think I can indicate the latitude that would be allowed at that stage, although I hear what the noble Lord says. I hope he will agree, that we gave considerable indications in Committee and, indeed, if the matter arises again today, on Report. In answering the noble Lord, Lord Foulkes, I indicated some of the key elements where the majority of opinion lies within the consultation. I think that was able to inform our debate on a referendum last week. I very much hope that by the time we get to Third Reading, people will have had an opportunity not just to analyse the numbers but also the quality of some of the responses, and they will feel that the preferences expressed by the Government in the consultation document command considerable support.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Wednesday 21st March 2012 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the House do now resolve itself into Committee.

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

My Lords, in moving this Motion, it may be helpful if I indicate that my right honourable friend the Secretary of State for Scotland tabled a Written Ministerial Statement which has been made available in the Printed Paper Office since this morning. He has also written to the Shadow Secretary of State for Scotland, Mrs Margaret Curran MP, and circulated that letter to other party spokesmen in the House of Commons in which he gives an indication of the consultation. He concludes his letter by saying:

“In making this information available now, I am seeking to balance the need to ensure that tomorrow’s debate in the House of Lords is as well informed as possible, with the need to provide Parliament with a full and detailed analysis of the consultation in due course”.

I should perhaps have said that the Written Ministerial Statement reflected agreement reached between the United Kingdom Government and the Scottish Government on the basis of which the Scottish Government will be tabling a legislative consent Motion in the Scottish Parliament. Obviously, we shall bring forward amendments to reflect that agreement. They will certainly be subject to debate, and possibly votes, and we will commend them to the House when we meet on Report next week. I beg to move.

--- Later in debate ---

In fact, if we knew what the Government were going to do, perhaps we could all go home early—having been here until 10.40 pm the other night, that would be a bonus—so some indication may facilitate the handling of the debate. None of us is interested—well, I may not be able to include everyone in this—in prolonging these matters any longer than necessary. I have done a lot, with the support of my Front-Bench and Back-Bench colleagues, to try to facilitate this Bill so that we can get it done in time and in good order. However, a few minutes spent now on indicating how the Government intend to take forward the outcome of the consultation, even if the noble and learned Lord is not in a position to say so in detail, might make the rest of the day much more productive and efficient for all of us. Of course, it might not.

[Lord Wallace of Tankerness]

My Lords, I think I might deal with the final comment made by the noble Lord, Lord Browne. I acknowledge the comments that have been made not just about this Bill but about the general timetable, but I hope that noble Lords who have taken part in our debates on many amendments to this Bill feel that we have had constructive debates. Almost without exception, the amendments that have been tabled have been pertinent and have done what this House does—properly scrutinise—and the Bill is the better for that. Although, as the noble Lord, Lord Stoddart, pointed out, we sat until 10.41 pm last Thursday, even in the final three-quarters of an hour we had some important debates. Although we had been sitting for some time, some important and thoughtful contributions were made.

On the point about the Written Ministerial Statement paving the way to a legislative consent Motion, the noble Lord, Lord Browne, fairly described the situation as he understood it. When we debated this before moving into Committee last Thursday, I indicated to your Lordship’ House, not for the first time, that work, negotiations and discussions were going on between the Scottish Government and the United Kingdom Government, and that we were hopeful that they would come to a conclusion. On that occasion, I think I said that I hoped that the House, before moving to Report, would have an outcome to these negotiations. I thought that it was important, if it was at all possible, for that Written Ministerial Statement to be available to your Lordships before we met today. I am pleased that in the event that proved to be possible.

There was an encouragingly wide response to the consultation. We received just under 3,000 responses, including many replies from members of the public living in Scotland and beyond. There were contributions from businesses, academics, political parties, trade unions and many others across civic Scotland. A number of these matters will be debated when we move into Committee, but I can confirm that the Government’s key proposal in the consultation was that the referendum should be legal, fair and decisive.

In order to provide a legal referendum, we set out our view that a Section 30 order should be agreed to devolve to the Scottish Parliament the power to legislate for a referendum. Initial analysis of the responses indicates clear support for that proposal. A significant majority of those who responded to this issue agreed that powers to hold a referendum should be devolved to the Scottish Parliament. Of these, the great majority supported a Section 30 order.

However, analysis of any consultation is not just a simple matter of counting responses, so I am pleased that our preference for agreeing a Section 30 order was endorsed by a number of constitutional experts, including Matt Qvortrup, Adam Tomkins and Alan Trench, as well as knowledgeable organisations such as the Law Society of Scotland, the Royal Society of Edinburgh and the British Academy.

The fact that it is not just simply a numbers question was highlighted by the point made by the noble Lord, Lord Browne, who picked out a point in the response from Professor Tomkins on the Electoral Commission and the question. There were a number of substantially written points, although obviously not 3,000. We want to make sure that when we bring forward a report—my understanding is that because the original consultation was a command document, any report has to go through the process of becoming a Command Paper—we do proper justice to the quality of the responses that we received.

Obviously, we will be able to say more in the debates. Nevertheless, it is possible to give some clear indication as to where the balance of opinion lies in response to a number of the detailed points—for example, on whether there should be one question or two, and on the timing; clearly, considerably more people want it sooner rather than later—and to indicate some of the specific points made by a number of leading experts.

I hear what my noble friend Lord Forsyth says about today’s debate and any amendments that he might wish to table for Report. The noble Lords, Lord Foulkes and Lord Browne, have acknowledged that we have tried to structure a debate today on the referendums in a way that is to the benefit of the Committee. After the appropriate amendment has been moved, I wish to indicate the Government’s position by saying something about the consultation. I shall then listen to comments from noble Lords and respond at the end of the debate.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend. Given that Section 30 is the Government’s preferred route forward, and given that the consultation process is overwhelmingly in support of that—that is what we are being told—is it the Government’s intention to proceed on that basis? As that basis requires the agreement of the Scottish Parliament, is it my noble and learned friend’s intention to bring forward some other Bill in the next Session of Parliament to deal with the referendum issue? It is clear that there will be no time to do this with the Scotland Bill.

[Lord Wallace of Tankerness]

My noble friend is right to say that a Section 30 order is the Government’s preferred route and that it is our policy to negotiate an agreement to that end. However, by the very nature of a Section 30 order, it would not be done through primary legislation. Such an order requires the consent of both Houses of Parliament and the Scottish Parliament before being presented to Her Majesty as an Order in Council for approval. That position has received considerable support. I will certainly endeavour to see how many more of the numbers around that particular point can be put in the public domain so that they can be number-crunched before Monday. I will also ensure that my noble friend’s comments on this are drawn to the attention of my honourable friend the Secretary of State. However, from what we have been able to digest, the clear majority of support in the consultation is for that process.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend, but I am actually anxious to save the Committee time. If the position is that the Government are planning to proceed on the basis of a Section 30 order, having had the consultation, and if that needs to be negotiated with the Scottish Government, and if Report, which will be the last opportunity to table amendments, is taken on Monday and Wednesday of next week, then to all intents and purposes the possibility of using the Scotland Bill as a legislative vehicle to provide for an independence referendum that would be monitored and administered by the Electoral Commission with a single question has gone. The Minister appears to be saying that he will proceed on the basis of a Section 30 order, but if he is not successful in that, presumably another Bill will be required in the next Session of Parliament. Is that not right?

[Lord Wallace of Tankerness]

I ask my noble friend to forgive me if I have misunderstood or misinterpreted what he said. A Section 30 order can take into account issues such as the use of the Electoral Commission. It can also take timing into account, as it can on the matter of whether there is one question or more. These are the things that we will seek to negotiate in a Section 30 order.

[Lord Foulkes of Cumnock]

If we go down that route and there is an agreement between the Scottish Executive and the UK Government about a Section 30 order and it is brought forward, can the Minister confirm that it could be debated in both the Houses of this Parliament?

[Lord Wallace of Tankerness]

Indeed, not only would it be debated but it would be voted on in both the Houses of this Parliament. If we move into Committee, we can probably have a much wider debate on these matters.

[The Duke of Montrose]

My Lords, we are up against a slight hoolie on this procedure. The interesting Statement given to us by the Minister shows that quite a lot of the measures that are currently in the Bill have been withdrawn, so it is simplified from that point of view. The question then is whether what we are left with is purely a framework Bill into which all sorts of other legislation will be brought. However, from the point of view of this House, it would be a great shame if the legislation on the referendum were not set out in the Bill because there is a strong restraint on this place in that we never vote down secondary legislation, which is what will come before us if we use the Privy Council route.

[Lord Wallace of Tankerness]

These are proper issues for debate. It is not the Government’s intention to bring forward any amendment with regard to a referendum, as I shall make clear when we come to debate the matter, when issues such as those raised by my noble friend the Duke of Montrose and others can be more thoroughly aired.

I hear the points made by the noble Lord, Lord Browne, on the provisions of the Holtham model, and those made by my noble friend Lord Caithness on when certain issues might be debated on Report. In the spirit in which some of us discussed matters earlier this week to facilitate these debates, I am more than willing to convene a meeting—either in person or on the phone—to see how we can best order business on Report to meet the different needs in different parts of the House, to ensure proper debate on these issues and to see if there is a way in which we can further debate Holtham. I am happy to commit to write and provide additional detail ahead of Report stage to assist noble Lords. It may be useful if we have a dialogue to see how we might facilitate a proper discussion for Lordships on the so-called Holtham model.

With these reassurances, I hope the House will now resolve itself into Committee.

[Lord Sewel]

Part of the difficulty with the Section 30 route, of which I am in favour, is not merely that we do not vote against orders—except very occasionally—but also that we cannot amend them. That is a real difficulty. If there is a Section 30 order agreement but the House is profoundly disturbed about one aspect, it is the nuclear option to vote against it. That is a very uncomfortable position to be in. It would require almost a draft Section 30 Motion so that the House can express a view on the details before being forced to come to a decision, one way or the other, on the whole order.

[Lord Wallace of Tankerness]

I am not sure that a draft Section 30 order exists. However, the noble Lord, Lord Sewel, from his long experience in government, makes an interesting suggestion. The most I can do at the moment is to undertake to reflect on it.

It is not only the responses from the consultation, which will inform much of the content that the United Kingdom Government would wish to see in a Section 30 order, that is of considerable importance today in a debate on the referendum, it is also important to know what issues your Lordships think ought to be included in a Section 30 order. While I do not say that this is a part of the consultation, it is an important part of the process that we have an opportunity, facilitated by amendments tabled by noble Lords, for your Lordships to express views as to what you think should be in the order. I can guarantee that the United Kingdom Government will reflect on those views. I will be very surprised if there is too much difference between our preferences, as expressed in the consultation document.

It is important that noble Lords should take the opportunity today to express their views on what the shape of such a referendum should be and I suggest that we move on to that as soon as possible.

Motion agreed.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am sorry that my noble friend Lord Sewel is not here. I beg your Lordships’ pardon. I mean my noble friend Lord Sassoon. It was a Freudian slip. The noble Lord, Lord Sewel, will be forever associated in my mind with the Scotland Bill because he, of course, was the midwife of the legislation.

I am sorry that my noble friend Lord Sassoon is not with us because this amendment relates to the extraordinary revelations that we had at some stage during our 10-hour Sitting on Thursday about how the tax-raising powers of the Scottish Parliament would operate. I see that the noble Lord, Lord Kerr, is in his place. I have always held him in the highest regard. I first came across him when he used to guide us through UKREP in the European Union negotiations on the social chapter. He is not someone who is easily lost to detail. He expressed a surprise that I and lots of people felt. I am of course not a supporter but, as he indicated when we discussed this before, the whole idea of giving the Scottish Parliament a tax-raising power to set the Scottish income tax means that part of the block that has hitherto been determined by the Barnett formula would have to be raised in income tax. If the Scottish Parliament wished to raise more, it would have to raise the Scottish rate of income tax.

[Lord Wallace of Tankerness]

I might have got this wrong but is Amendment 74B not about the privileges of the House of Commons? At the moment, is my noble friend limbering up to speak to Amendment 74C? I apologise if I have got that wrong.

[Lord Forsyth of Drumlean]

My noble and learned friend is absolutely right. Amendment 74B is indeed about the impact on the privileges of the House of Commons. Everything that I said can relate to that if I think very carefully on my feet. Amendment 74B relates to the previous debate that we also had with my noble friend Lord Sassoon about enabling new taxes to be created in Scotland by Order in Council. That related to new Section 80B created in Clause 28, which is the power to add new, devolved taxes. It says:

“Her Majesty may by Order in Council amend this Part so as to … specify, as an additional devolved tax, a tax of any description”.

I cannot think of an example since ship-money where it has been possible by Order in Council to create a new tax. We have very particular procedures for creating new taxes. The Finance Bill right up until, I think, 1969 had to be considered on the Floor of the House of Commons in Committee. Special rules apply to the conduct of the Finance Bill, including—still, I think—that it is not subject to guillotine. The noble Lord, Lord McAvoy, would be able to help me with that. I certainly think that it is not subject to a guillotine in Committee. The Chancellor of the Exchequer has a leeway, given to no other Minister in the Government, to have as big a Bill and as much time as required. That is because the Finance Bill is central to the whole nature of Parliament, which is about voting and raising means of supply.

The particular innovation in this Bill enables a completely new tax to be created. Mr Alex Salmond might decide he wants a window tax or a tax on landed estates or our local income to finance local government. All that is required is that an Order in Council is approved by both Houses of Parliament. As has already been pointed out, Orders in Council are not normally able to be amended and are not normally voted against in this House. I am most grateful to my noble and learned friend for telling me which amendment I am speaking to. I have tabled this amendment because I cannot understand how, given the position of this House in respect of taxation, it can be right that first, new taxes can be created by order in the other place and, secondly, this House should be involved in consideration of the imposition of new taxes by order. That seems to impact upon the privileges of the House of Commons.

In truth, however, this amendment is simply another opportunity to raise a serious constitutional innovation, which creates very unfortunate precedents. I am hoping that even at this late stage I can impress upon my noble and learned friend that the explanation we were given for these powers being contained in the Bill, when we considered them earlier, was that the Calman commission had recommended that there should be powers in the Bill to provide for additional, specified taxes. This Bill does not provide for additional, specified taxes; it gives a completely open-ended power.

We have just received, as was referred to earlier, an indication of the agreement that has been made in order to get Alex Salmond’s permission for this House to continue with the Bill. This is the deal that the Government have entered into. It provides for the inclusion of some new taxes—some of which we have already debated, such as the aggregates levy. Why can my noble and learned friend not amend the Bill on Report and make provision for those specified taxes to be included? I do not like the order-making power. He could put that provision into the Bill and it could be approved, then it would go back to the House of Commons and would be approved there. Why can we not have a list of specified taxes which are to be included rather than this open-ended and highly undesirable procedure, which I believe challenges the very basis of this House? I beg to move.

--- Later in debate ---

[Lord Lyell]

My noble friend made a powerful speech; indeed, I am half way to agreeing with him. However, our noble friend the Commercial Secretary to the Treasury referred 36 times to this extraordinary Scottish dance, the close connection; perhaps my noble and learned friend on the Front Bench can tell us whether it is a Canadian barn dance, a military two-step or a three-step. That close connection refers particularly to individual payers of income tax. In describing this close connection, my noble friend admitted more than 30 times that the individual payers who are classified as Scottish taxpayers would be nothing to do with this Bill. They could easily be English or other UK taxpayers. I hope my noble friend will take that on board. You can look at new taxes but, for goodness’ sake, take care over who will be responsible. If they are not Scottish taxpayers or Scottish voters, we will be in ever deeper water.

[Lord Wallace of Tankerness]

My Lords, my noble friend Lord Forsyth indicated that this amendment was a hook on which to hang a wider debate. I listened to the debate on Clause 28, to which my noble friend Lord Sassoon responded and in which the noble Lord, Lord Forsyth, made a number of points. He raised the responsibilities and privileges of the respective Houses of Parliament. The noble Lord, Lord Browne, has given a very clear answer on that. It is also important to point out that our role is in relation to a constitutional question: should the Scottish Parliament have responsibility for a particular tax, or should it remain reserved? It is not about how a tax should be structured, who should have to pay it and exemptions to it. That would all have to be set out in primary legislation by the Scottish Parliament, should a tax be devolved.

I am sure it is accepted on all sides of the House that the question of what should be devolved to the Scottish Parliament is an important constitutional issue. I rather think that if it had been suggested that the House of Lords should not express a view on a power such as that contained in Clause 28, I might be in greater difficulty in trying to respond to an amendment suggesting that it should. However, I hear what my noble friend says about the tax in relation to Clause 28. I do not want to engage in a rerun of the debate that we had when my noble friend Lord Sassoon was responding, or indeed anticipate a debate which the noble Lord, Lord Browne, has indicated he intends to run when we come to Report. I am sure that there will be ample opportunity to do so.

I say to my noble friend Lord Forsyth that I think there is a genuine misunderstanding between us with regard to what the Calman commission meant when it referred to a specific tax. I think there are three other members of the Calman commission in the Chamber at the moment and I am sure that, if I have this wrong, they will jump up. The Calman commission identified some specific taxes such as an aggregates levy, which has been referred to, air passenger duty, landfill tax and stamp duty land tax. These were specified and specific recommendations were made in respect of them. Paragraphs 3.170 and 3.171 of the Calman commission report give a general background as to why we thought there should be a power to devolve other specific taxes in the future. By that, it was not intended that we should nominate in the commission’s report, or indeed in a Bill, what these specific taxes might be; rather, it concerned the concept of a specific tax as opposed to devolving a general power of taxation to the Scottish Parliament. I think there is perhaps a genuine misunderstanding on what the recommendation intended. I may have a better understanding of what that intention was, having been party to it.

[Lord Forsyth of Drumlean]

Can my noble and learned friend give us two examples of taxes that might be added using this general power which he could not put on the face of the Bill?

[Lord Wallace of Tankerness]

My Lords, the point of not putting that on the face of the Bill is to make sure that there is provision for something that might happen in the future. However, one possible tax could be a dog licence tax, which my noble friend Lord Steel mentioned. I wish to make it very clear that it is not the policy of Her Majesty’s Government to have a dog licence tax, nor indeed, the last time I checked, was it the policy of the Scottish Liberal Democrats. I hope I will not embarrass my noble friend Lord Steel by what I am about to say but I remember that, in an election when I was leader of the Scottish Liberal Democrats—it must have been the 1999 Scottish election—and my noble friend was a candidate in Lothian, he announced somewhere along the line that he wanted a caravan tax. I had to spend a whole day making it very clear that this was his personal view and not the view of the party. My noble friend seems to be a rich source of potential taxes.

However, one of the taxes that the Calman commission considered was a plastic bag tax, which had arisen in the Scottish Parliament where all sorts of ways had been found to try to see whether it could be brought within competence. That is the context. I hope that before we come back to this matter on Report, my noble friend will look at paragraphs 3.170 and 3.171 and will understand the context in which the recommendation was made.

I may be anticipating the debate we will have next week, but putting criteria on the face of the Bill would undoubtedly give the courts the ability to decide whether they have been met. The question of the extent to which these criteria have been met is, I believe, a political one, and one which Government and Parliament would be best placed to determine when a particular issue presents itself. However, it is clear that we will have an opportunity to return to this so I will not detain your Lordships further. I invite my noble friend to withdraw the amendment.

[Lord Forsyth of Drumlean]

I have to say to my noble and learned friend that that was a disappointing response. I thought that if I gave him the chance to discuss this important constitutional position again, having thought about the arguments, he would perhaps say that he would narrow the rather wide focus of the Bill. I wonder how the House would react if my right honourable friend’s Budget was implemented with a Finance Bill which said that it would be possible to introduce new taxes by Order in Council, approved by both Houses of Parliament. I think there would be an absolute stampede, yet that is what we are proposing should happen to people in Scotland. Having praised my noble and learned friend, I think that he is just a little bit flippant about this. The reason I brought this issue back was not to waste the time of the House but to underline that something very important is being done here which, as I have said, breaches a principle established in this country after ship money.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I do not support the noble Lord’s amendment. In case anyone should be in any doubt about this, I do not support a referendum on any aspect of this Bill because I do not think that it is appropriate for us to make any of the provisions of the Bill conditional on a referendum, either by the Scots, the whole of the UK or indeed the English. I shall perhaps have an opportunity to explain later that referendums are for extraordinary circumstances and this is not one of those sets of circumstances.

Secondly, in this context, I would never support a referendum by the people of England in any event because, in my view, that would be a fundamental misunderstanding of the concept of devolution. Devolution depends on the relationship between the United Kingdom and Scotland and not between England and Scotland. I am not being pedantic; I could go on to say why England, and not Wales and Northern Ireland. The noble Lord nods so I am sure that he gets the point. This is a vehicle for him to have a wider and broader debate and I understand that. It is important that we do not repeatedly categorise these issues as issues between England and Scotland. This is about devolving power to a part of the United Kingdom and holding that part of the United Kingdom in the United Kingdom. We have done it to Northern Ireland and to Wales and we have done it substantially to London in many aspects of public policy.

It is challenging and difficult for this Parliament and for people to understand because it is utterly asymmetric across the country, but, in my view, it is a celebration of the diversity of the United Kingdom. I know that there are those among us—the noble Lord, Lord Steel, is one of them—who would like to see a more federal structure where there was less of an asymmetry and much greater clarity. However, the reality is that many parts of the United Kingdom are not ready for that, as they have made clear to us, and it should not be imposed upon them. Ironically, in the history of devolution in Spain, that sort of structure was imposed on the Spaniards and those who were least interested in it made the most out of it. I say that in passing. So I do not support a referendum. I would certainly not support a referendum by only English voters.

I turn to the no-detriment principle. I thank the noble Lord for raising this issue again. In the absence of my noble and learned friend Lord Davidson of Glen Clova, who is part of our Treasury team and is also a Scottish affairs spokesman, I have to deal with it. I was reluctant to engage myself in the debate the last time it came up, but got slightly frustrated with the misrepresentation of what I thought was the no-detriment principle. I stuck my nose into it, suggesting, indeed, that this letter be written, but it appears that the letter has just given those who wish to misrepresent the no-detriment principle even more ammunition to do it.

The no-detriment principle in this context was first raised, as I understand it, in the Command Paper that accompanied the Bill. My understanding of the no-detriment principle is probably best expressed, interestingly enough, in a paragraph of the Holtham report. This may be entirely the wrong part of the Holtham report for the purpose of the agreement that has now incorporated this into mechanisms for the future between the Scottish Government and the UK Government, but it does what I want it to do. It is paragraph 5.2 of the substantial executive summary of the Holtham report. The executive summary is 72 pages long. I shudder to think what the whole report is like, and I certainly do not intend to spend a weekend between now and the Report stage reading it.

If I have understood the Written Statement from the Secretary of State for Scotland, the principle of no-detriment is now to be qualified by reference to the Holtham report and the mechanism in it about budgets and block grants. If I have misunderstood that entirely then, at the risk of encouraging the same sort of pantomime that we saw earlier in another place, perhaps someone on the Front Benches could either nod or shake their head, but if I am right this encapsulates the no-detriment principle:

“Risks consequent on the actions of the Assembly Government should be borne by its budget and risks consequent on the action of the UK Government should be borne by UK budgets. Risks outside government control and arising from elsewhere should be pooled across the union”.

It goes on to refer to how difficult that is to do. I accept that it is very difficult, but as I understand it, that is what lay behind the no-detriment principle. If Holtham is now to be incorporated into that agreement, then that may make it easier.

If that is right, with all due respect to the noble Lords who have supported this interpretation, adjusting the block grant for Scotland in response to policy decisions made by the UK Government in no way undermines the accountability of the Scottish Parliament or the Scottish Government. They are accountable for what they do. The point about the no-detriment principle is that they should not be accountable to their electorate for what the UK Government do. We can call it what we like, but that is essentially what this is trying to achieve.

I see the noble Lord moving in his seat. This is what I fear, of course, when I start to get into this area of complexity. Before I allow the noble Lord to intervene, perhaps I may remind the Committee that when we were discussing the developments before we started on the fifth day of Committee I said at the outset that it would be extremely helpful if, between now and the conclusion of the debates on the Bill, the Government set themselves the task of explaining where we are now in relation to this principle and how it works. It may be that the noble Lord, Lord Forsyth, will never be satisfied that accountability should be encapsulated only in the actions of the Scottish Parliament. He has a very distinctive view about the Bill and about the Parliament’s relationship with the rest of the United Kingdom, which few of us share. However, some of us could be satisfied that there might be a way of expressing this with greater clarity than it has been, and perhaps also of incorporating it into part of the Bill before it is beyond amendment so that it becomes clearer than it is at present.

It now appears that we have not only to read a Command Paper but be sufficiently familiar with the details of the negotiations between the Scottish and UK Governments and no doubt adept at finding our way around the full version of the Holtham report to understand how the no-detriment principle will work. I prefer the simple statement in paragraph 5.2. If that is what the Government are about, I support them. If they could find a way of making that clear in a way that we could refer to in future to ensure that that is what will happen when people adjust grants, I would support them even more. I look to the noble and learned Lord, who has not until now dealt with these financial provisions—neither have I—to reassure the House that in the near future there is a mechanism that will allow us to do that.

[Lord Wallace of Tankerness]

My Lords, I am in a position similar to that of the noble Lord, Lord Browne, in having to deal with matters that hitherto were dealt with by my noble friend in the Treasury. I fully accept that my noble friend’s amendment is a hook. I share the view expressed by the noble Lord, Lord Browne—

[Lord Foulkes of Cumnock]

Perhaps I may take the opportunity of sending good wishes to the noble Lord, Lord Sassoon, for a speedy recovery.

[Lord Wallace of Tankerness]

I hope that I did not imply that he was ill. I am not aware that he is.

[Lord Foulkes of Cumnock]

I assumed that he had retired hurt.

[Lord Wallace of Tankerness]

I am sure that, after all the good will that has been expressed, he will relish coming back to the fray next week. I do not for a moment think that he is ill; perhaps I may quash that rumour.

As the noble Lord, Lord Browne, indicated—and perhaps my noble friend Lord Forsyth would accept—to include only the people of England and to exclude the people of Wales, Northern Ireland and Scotland would not be appropriate. We should bear in mind that the proposals in the Bill were in the manifestos of the Conservative, Labour and Liberal Democrat parties, which applied throughout Great Britain at the last election. My noble friend indicated that he wished to return to the issue of the no-detriment principle, which he pursued on Thursday of last week. It prompted my noble friend Lord Sassoon to write a letter. My noble friend asked if it could be put in the Library. I will make sure that that is done, because it has the benefit of a flow chart that I could not begin to describe from the Dispatch Box.

I will try to explain—I accept that I will not necessarily succeed—what the no-detriment principle is about and why we believe that it is fair and does not detract from accountability. I agree with the noble Lord, Lord Kerr of Kinlochard, and with my noble friend Lord Caithness that more accountability is crucial and that the Scottish Parliament should be accountable not simply for spending money but for raising it. My starting point is that it is wrong to suggest that the no-detriment principle is about allowing the Scottish Government to have their cake and eat it.

The first flaw in the argument is to suggest that if there is a tax benefit—for example, through the measure in today’s Budget to raise the personal allowance, which I very much welcome—it will accrue to the Scottish Government. It will accrue to Scottish taxpayers, along with those of England, Wales and Northern Ireland. As I will seek to explain, it has an effect on the revenue that would then be generated for the Scottish Government.

[Lord Forsyth of Drumlean]

Yes, it does. The effect is that the amount of tax that people pay in Scotland will go down. Therefore, if the Scottish Parliament wished to be compensated for the loss, it would put up the tax so that it remained in the same position.

[Lord Wallace of Tankerness]

This is where there is a misunderstanding. This is about making a shared tax base work in a way that is fair and revenue neutral to both jurisdictions. My noble friend Lord Caithness said that if the Scottish Parliament chose to change the allowances, it should bear the responsibility. The whole point of these proposals is that it cannot change the allowances. The personal allowance is determined by the United Kingdom Government. That is the nature of a shared tax base. The argument is that if that tax base is changed, there ought not to be detriment to the Scottish Parliament.

[Lord Kerr of Kinlochard]

Let us look at this the other way around and think about the ease and the political acceptability in Scotland of making the case that if the Chancellor decides to put taxes up, not down, the Scots, in addition to paying the taxes, should send a cheque to London. It is the reverse of the case that the noble and learned Lord has just been discussing.

[Lord Wallace of Tankerness]

It is very unlikely to happen, but let us say that the personal allowance had gone down rather than up. It would have been a windfall to the Scottish Government. The argument therefore is that on a no-detriment principle, it should operate both ways. I shall come on to explain that.

I shall try to make this as simple as possible, but it is not readily simple. From April 2016, the income tax base in the United Kingdom will be shared between the United Kingdom and Scotland. With 10p from all rates in Scotland expected to yield between £4.3 billion and £5.6 billion over the OBR’s forecast period, the Scottish Government will receive around 3 per cent of UK income tax receipts. The Scottish Government will be responsible for setting their rate of income tax and the United Kingdom Government will be responsible for everything else, including, for example, personal allowances. In such a system, the UK Government must be accountable for decisions that they take on the structure of the tax. Conversely, the Scottish Government must be accountable for the decisions that they take in respect of the rate.

I shall give an example—the example seen in the letter from my noble friend Lord Sassoon, but seen the other way. Last year the United Kingdom Government decided to raise personal allowances from £6,475 to £7,475. This decision cost the United Kingdom Government approximately £3.5 billion across the United Kingdom. Since the proposal in the Bill is to devolve around 3 per cent of income tax, the cost to the UK Exchequer from raising personal allowances would reduce to 97 per cent per cent or around £3.4 billion. The remaining £100 million would fall on the Scottish budget. It would be a cost as a result of a decision for which the Scottish Government were not accountable.

If the Scottish Government had set a budget and a rate of tax and had planned their public expenditure on that basis, and then, some four or five months later, as the result of a decision for which they had no responsibility or accountability, they suddenly found that their budget was £100 million short, the no-detriment principle is intended to make up that difference because it is a decision for which the Scottish Parliament will not have had responsibility. That is why I believe that it is important for accountability, because not to do so means that suddenly a Scottish Government perhaps have to carry the can for particular expenditure to which they were committed but could not longer afford, not through any decision that they had made, but through a decision made by the United Kingdom. The obverse is true; for example, if the Scottish Government get a windfall because the tax base has changed, it is only right that that windfall is recovered by the United Kingdom Government.

Under the no-detriment principle, the UK Government would compensate the Scottish budget for any cost that led to a reduction in the tax, but at the end of the day the cost to the United Kingdom is exactly the same as it would be if this Bill were not implemented—that is, the £3.4 billion that it loses in revenue because of the increase in the personal allowance and the £100 million that it then gives to the Scottish Government.

[Lord Forsyth of Drumlean]

I am sorry to persist in this; perhaps I am just being thick. To take the example given by the Minister, which is the same example that I tried to give from the flow chart, if the Scottish Government find that their block grant is short of £100 million as a result of the increase in the allowances, that means that the amount that people are paying in tax in Scotland has gone down. Why can the Scottish Government not just use their tax-raising power to get the £100 million back from the people who have benefited? That is how the model is supposed to work.

If the Minister is not happy with that, why does he not go further and give the Scottish Parliament the ability to change the allowances as well as the rates? In those circumstances, if the Chancellor wishes to raise the allowances and the Scottish Government do not, they do not raise the allowances. I am making the case here for more devolution, not less—not on the grounds that I am committed to more devolution but on the grounds that this is a complete dog’s breakfast.

[Lord Wallace of Tankerness]

My Lords, I cannot accept that last comment, but I can now see where my noble friend is coming from. I welcome anyone who wishes to express the case for going further. Of course, he is well aware that what has been presented to Parliament here is something that was worked on over a long period of time during which a consensus was achieved. There was never likely to be a consensus in favour of devolution of the whole tax base, as opposed to the tax rate.

My noble friend is basically saying that it should never be the case that a change in the tax base—for example, the increase in personal allowances—should benefit taxpayers in Scotland. He is saying that if the UK Government, who are still responsible for a substantial level of services in Scotland, take tax from the Scottish people, the Scottish people should never be allowed to take the kind of benefit that I believe they should—and I think that he once wrote a pamphlet on the benefit of raising the personal threshold—and the Scottish Parliament should raise its rate of tax to account for that. That is not accountability; that is a decision taken by the UK Government to bring benefits right throughout the United Kingdom.

It would seriously undermine the United Kingdom if Scottish taxpayers were not allowed to receive the benefit of a change to the UK tax base. It could mean that the tax change would reduce the amount of money available to the Scottish Government, so that budgetary considerations and calculations that had been put forward and might well have been voted through by Parliament would no longer be sustainable because of a decision taken by a body other than the Scottish Parliament. That is the essence of the no-detriment rule, and something that lies at the heart of the statement of funding policy.

I will read out the statement of funding policy, because the noble Lord, Lord Browne, might find that it echoes the passage from the Holtham commission that he read out. It says:

“Where decisions taken by any of the devolved administrations … have financial implications for departments or agencies of the United Kingdom Government or, alternatively, decisions of United Kingdom departments or agencies lead to additional costs for any of the devolved administrations … the body whose decision leads to the additional cost will meet that cost”.

That is where accountability properly lies.

This is not something new that has suddenly been dreamt up. There are probably people in the House who were involved at the beginning of devolution and this principle has been in the statement of funding policy since then. I believe that it is fair that Governments —be it a UK Government or a Scottish Government—should be accountable for the decisions that they make, but they should not be able to export some of the implications of their decisions on to another Government, who should not be held accountable for the decision of another Government.

[Lord Kerr of Kinlochard]

I understand the Minister’s logic, which seems to depend on the control total being the block grant. The block grant is what matters. All this stuff about tax is for perception and presentation at the edges. The block grant has to be maintained. Apparently the example in the Sassoon letter, which I have not seen, concerns a case where the Scottish economy would have benefited from the additional buoyancy and spending power of a reduction in the level of taxation paid by Scotland. However, because we are seeing everything through the prism that the block grant is the control, it needs to be maintained in Scotland, so the Scots need to be compensated for the additional buoyancy in the Scottish economy. That is quite difficult politically. The reverse case, which the Minister prefers not to talk about, is almost impossible to present politically in Scotland.

The trouble is that these tax revisions are neither fish nor fowl; they are only a good red herring. We are not addressing the real issue on taxation. I entirely agree with the noble Lord, Lord Browne of Ladyton, that accountability is accountability for spending and for raising the money which you spend. Until we get that and get away from having the block grant as the control, we will have a continuing unsatisfactory situation.

[Lord Wallace of Tankerness]

My Lords, I certainly agree with the final point that accountability is as much about what you raise as what you spend. The point at the heart of the statement on funding and the no-detriment principle is that one should not be accountable for consequences which you as a Government would have to see through but which are the result of a decision that you have not made. Having to say why a certain project does not take place—following not a decision that you have made but a decision made by another Government—is not accountability. That is what one is seeking to address, and it links in with what has been said about the Holtham principle. Again, there is an intention there that, if the Scottish Government’s tax proposals promote buoyancy in the Scottish economy, that should be to the benefit. Likewise, if they have tax proposals which have an opposite effect—they drive away enterprise and reduce revenues—there should be a negative consequence. A letter is not necessarily the best way to go through this issue but I am certainly open to ways in which we can go through it in more detail. This point links to the Holtham point made earlier by the noble Lord, Lord Browne.

The principal point is that this is not an issue of the Scottish Government getting two bites of the cake. It is to ensure that where a tax decision is made regarding the UK tax base by the UK Government, all taxpayers throughout the United Kingdom are treated in the same way as a result of that decision. It means, too, that if that decision has consequences—either inflating the money coming into the Scottish Government or reducing it—a rectifying amount is paid back or perhaps withheld from the block grant or, alternatively, is paid in addition. I regret that it is not the easiest thing to explain and there may be another way of discussing it other than across a Chamber. However, I emphasise that it is not a question of having your cake and eating it; ultimately, it is a question of ensuring accountability and making sure that the Scottish Government do not become accountable for a decision that is not their own. I cannot put it more simply than that. Although we may well return to this issue, on that basis I ask my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

My Lords, I have to say that I think this is a complete dog’s breakfast and I agree entirely with the noble Lord, Lord Kerr of Kinlochard. My noble and learned friend has struggled valiantly to try to explain why the Scottish Parliament should not be accountable for a decision made by the Chancellor to change the tax base by altering the allowances. However, he has not dealt with the point made by the noble Lord, Lord Kerr of Kinlochard, about the politics of Scotland having to send a cheque to England, but I thought I would keep off that in case—

[Lord Wallace of Tankerness]

I hope that I made it clear in my response but I shall repeat the point. This is reciprocal because it goes two ways. If a change to the tax base led to an increase or windfall for the Scottish Parliament, that would be recoverable—not by England but by the United Kingdom Parliament.

[Lord Forsyth of Drumlean]

Indeed, and I understand that, but I am talking about the politics of it in the context of there perhaps being a higher rate of tax in Scotland. I would not like to be the Minister who had to explain why it was necessary. For example—thank goodness the Chancellor did not do it—let us suppose he had abolished tax relief on higher-income pension contributions. That would create exactly the kind of situation under this odd regime in which the Scottish Government would have to send a cheque to England. My noble and learned friend looks quizzical and perhaps I am wrong, but if the tax relief were removed there would be a windfall benefit for the Scottish Government. The product of a 10p income tax would be less, or are we saying that this would apply only to direct changes to allowances in respect of income tax? If that is the case, surely it would be sensible to allow the Scottish Government to make changes to tax allowances rather than compensate them for the effect of changes. There is an idea that they would be caught midway through a Budget by a sudden change—perhaps the £100 million example given by my noble friend—but, as we have seen today in the reduction in the top rate of tax or the increases in allowances, these are normally planned well in advance. Provision is also made in the Bill for the Scottish Parliament to borrow money and to have access to funds where there are changes.

My noble and learned friend has not dealt with the argument. The simple way to deal with this is as follows. If a change is made to the allowances, the revenue consequences will be that the product of the 10p tax instead of being £4.2 billion or £4.5 billion will be £4.2 billion or £4.4 billion. That £100 million shortfall could easily be recovered by increasing the rate of tax. The Scottish Parliament would not be disadvantaged by that because it would simply have to increase the rate of tax. There might be a problem of timing, but there is a provision for borrowing to deal with it, and that would give direct accountability. I agree that it is messy, but for the life of me I do not understand why we are going on with this exercise where my noble and learned friend will not concede that, rather than have a very complicated provision for tax, it would be better to provide that the Scottish Government are able to change the allowances as well as the rate if the UK Government see this as a great administrative difficulty for them.

My noble and learned friend did not deal in his response with the problems that arise from welfare. As I understand it and as his letter points out, eligibility for benefits will depend on net income. That means that if Scotland, as I suspect it will, becomes the highest taxed part of the United Kingdom, net incomes will be lower and therefore it will be necessary for benefits to be increased. Perhaps my noble and learned friend will help me with this. If, for example, the Scottish rate of income tax was higher and the effect was to reduce net incomes and therefore more would need to be paid in benefits, would the Scottish Government have to send a cheque to the UK Exchequer to deal with the consequences of the fact that in Scotland more people were dependent on benefits? Politically, I think that that, too, would be extremely difficult.

As the noble Lord, Lord Kerr of Kinlochard, has pointed out, the no-detriment principle is basically just trying to replicate the block grant and dress it up as income tax. The consequences will be that everyone in Scotland will end up paying higher income tax than people in England in order to finance a vehicle which does not do what it says on the tin.

[Lord Wallace of Tankerness]

There is a point that my noble friend is not addressing: no amendment has ever been brought forward to devolve allowances. It would be a major change to make at this stage of the Bill and he has not advanced the idea before but, that apart, it did not commend itself to the Calman commission or to the Government. Is he saying that the United Kingdom Government cannot make changes to a tax allowance which will benefit all taxpayers in the United Kingdom and that, if they do, they will be giving with one hand and the Scottish Parliament will be taking away with the other? That is an untenable position for a unionist to take.

[Lord Forsyth of Drumlean]

It is not my idea. It is the noble and learned Lord’s idea to introduce a Scottish income tax. We have never had a Scottish income tax. If my noble and learned friend is saying that it is not a good unionist position to have a Scottish income tax along with a UK income tax, I could not agree more. That is what is wrong with the Bill and why I am against it. If you want to go down that road and you have set out the arguments for accountability on that basis, then do it properly and introduce a system that is workable.

Let us leave the issue of allowances. When we have Scottish income tax it will be possible for the Scottish Parliament to set the rate at whatever level it chooses—and not only the basic rate but the intermediate rate and the top rate. Mr Alex Salmond can have a top rate of 60 per cent and a basic rate of 30 per cent if he wants, and you can have a Government in England and the rest of the United Kingdom cutting taxes. Therefore, it is absolutely central to the proposal that there is the possibility—I would say the probability—that people in Scotland will not benefit from wise tax policies such as those pursued by my right honourable friend the Chancellor of the Exchequer today.

When my noble and learned friend says that if you do not have the no-detriment principle people in Scotland will not benefit from increases in the allowances for tax purposes, that is nonsense. It would be up to the Scottish Government. The Scottish Government would find that their block grant was reduced by a set amount, but they could get that set amount by taking the money from the taxpayers in Scotland, who would have benefited from the reduction in the allowances. That is the whole principle. My noble and learned friend shakes his head. The principle is that the Scottish Government are accountable for their spending and they have to raise that money through tax. The change in the allowances means that the tax available to them is less and therefore, if they want to continue the same level of spending, they will have to raise the tax. My noble and learned friend is running away from this because of the administrative difficulties that would be involved in dealing with the allowances.

On the point about there being no amendments on allowing the Scottish Parliament to set the allowances, I shall happily oblige: I shall table one for Monday and we can discuss this again. I shall be interested to hear how someone who is committed to the policy of making the Scottish Parliament accountable can possibly argue against it being able to set the allowances as well as the rates. You would have to have a Scottish allowance, of course, just as you have a Scottish tax, and it would operate in exactly the same way. However, by attacking this principle, my noble and learned friend is attacking the basis of the Bill—and I do so agree with him on that. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

As I understand it, the Scottish Parliament has sent its response to its Scotland Bill Committee. In that, it indicated in similar terms to our Written Ministerial Statement what the agreement is. It has tabled or will table a legislative consent Motion on the basis of following on from that agreement. That Motion should certainly be dealt with before our Third Reading but obviously I am not responsible for the timing of debates in the Scottish Parliament.

[Lord Forsyth of Drumlean]

You have to admire the way that the Scottish Parliament is run. Its committee made 25 major recommendations for changes to this Bill which effectively involve devo-max. They were full fiscal autonomy and a range of other things. Those sat on the table from before Christmas until now. Due to the brilliance of my noble and learned friend, he and his colleagues had a meeting with the First Minister and suddenly everything that the committee said vanished like snow off a dike. We are told that a procedure will be followed that will result in the Scottish Parliament giving agreement. That really is the accountability that we all came to expect from devolution. We have here one man—the First Minister—deciding what happens and everybody else falling into line. Otherwise, it would not be possible to deliver this.

Fortunately, it does not quite work like that in this House. I have a few points to raise on this issue of legislative consent. The first thing we need on the record is the Government’s position on legislative consent. I pressed my noble and learned friend on this before and I hope he will tell us now that he has finished his negotiations. Is the Government’s view that legislative consent is desirable but in the absence of it they will proceed anyway; is there a new constitutional principle that we do not do things without legislative consent; or is the constitutional principle that we try to get legislative consent if it is practical? That is very important because it will impinge on the debates that we are about to have on the referendum, where the Government say that they will proceed by Section 30 but Section 30 requires legislative consent. I want to be absolutely clear where the Government are on the issue of legislative consent. In the absence of legislative consent, would the Government still proceed? That is not a perfect example because of course the referendum issue has nothing to do with the Scottish Parliament as it is a reserved power. In respect of non-reserved powers for the Scottish Parliament, where are we on legislative consent?

I want to pick up one thing from the Statement that my noble and learned friend made today on what has been agreed. That is the first section, which says:

“The Government will ensure that changes in the Scottish Government’s budget are closely linked to the performance of its economy by adjusting Scotland’s budget to reflect new tax powers using the model recommended to the Welsh Assembly in the Holtham Report”.

The noble Lord, Lord Browne, who is a man of considerable ability—as we have discovered in the course of consideration of this Bill, as well as from his previous work—has read the Holtham summary, and I expect that he is as unsure of the meaning of that sentence as I am. What does it mean? Does it mean what we have just been discussing and, if so, why does it say,

“changes in the Scottish Government’s budget”,

as opposed to changes in the Scottish Government’s income? The Scottish Government’s budget is what Alex Salmond dreams up one day and promises the Scottish people, but it has no relation whatever to the Scottish Government’s income, as people are about to discover.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I support the general tenor of this debate in so much as it encourages the noble and learned Lord to explain the Written Ministerial Statement more fully and how we will take forward—if we are to do so—the agreement that has now emerged between the Scottish Government and the coalition Government. It would appear that that agreement has encouraged the Scottish Government to do no more, according to the Statement as I read it, than to,

“table a Legislative Consent Memorandum recommending that the Scottish Parliament votes in support of the Bill on a further Legislative Consent Motion for the Bill”.

That sentence has been somewhat extravagantly interpreted, perhaps for other purposes, by some of my noble friends and other noble Lords.

It is incumbent on us to pay appropriate respect to the Scottish Parliament, which will have to debate a Motion. No doubt some members of that Parliament may disagree with the agreement that their Government have reached. How they vote will be a reflection of the way in which that Parliament operates, which seems to copy our voting discipline substantially, from what I can see: that is, people often conform to the position adopted by their party. I was amused by the idea that a country that did not have a genuine separation between its Executive and its legislature would no longer qualify for membership of the European Union. Given that our Executive seems to be part of our legislature, if we were not already members of the European Union, we might struggle to get membership of it on that criterion.

I approach this issue in this way because I have been on record repeatedly in this Committee as being confident that the Scottish Parliament would pass a legislative consent Motion. I am confident because it has already done it and because many significant Members of the Scottish Parliament have already voted for a legislative consent Motion on most of what is before us in this Bill. To the extent that the Bill has been amended, it has been amended at their request. It therefore did not seem consistent or politically likely that that Parliament would not pass a legislative consent Motion at some stage. I have said this before and I am not saying it now in the knowledge that an agreement has been reached. I have been confident that that would happen. However, I have also said before, and I repeat, that as far as I am concerned that has never been a condition precedent for us getting on and dealing with this Bill. I have been prepared to entertain debate with noble Lords about what we need to do if there is no legislative consent Motion, although I have been confident that there would be one, and it seems that my confidence was not misplaced.

However, from my perspective of the politics of Scotland and where we are at this challenging time, it is important that we keep our word to the Scottish people and pass this Bill, which has its genesis in Calman and prior to that in the Scottish Parliament and all the devolution parties in Scotland. We should proceed to offer these additional powers to the Scottish people through their Parliament. It would then be a matter for the Scottish Parliament to decide whether to accept them, and it would not be our responsibility, and certainly not the responsibility of an unelected Chamber of this Parliament, if it did not offer them.

As far as I am concerned, it has never been a condition precedent of completing this work that we guarantee that there will be an LCM. However, it now appears that there will be one. At least to the extent that we can anticipate that the agreement that has been reached will persuade the Members of the Scottish Parliament to vote for this LCM, I think we can work on the basis that there will be one. However, we need to get more detail from the Government of what this deal that they have struck with the Scottish Parliament actually means.

I have already said this afternoon that the Government should assure the House that Parliament will be provided with an adequate opportunity to scrutinise properly what amount to significant new details on the process of the devolution of tax and borrowing powers. I do not fully understand the relevant paragraphs in the Written Ministerial Statement. We do not have much time to get to grips with them, but we will never do so if no one explains them to us. What exactly does the reference to the Holtham report mean? The noble Lord, Lord Forsyth, referred to the paragraph that states:

“The Government will work together with the Scottish Government over coming months and years to give operational effect to the powers including the block grant adjustment, in a fair and sustainable way”.

What does that mean? How will that agreement, when it is reached, be subject to parliamentary scrutiny here in our Parliament?

The next bullet point states that the Secretary of State for Scotland and Scottish Ministers will produce between them,

“annual reports to the UK and Scottish Parliaments on the progress of transferring the tax and borrowing powers to the Scottish Government”.

There must be some method of accountability envisaged in this deal that allows this Parliament to be assured that the Bill we are passing in the context of the deal that has been struck will ensure that the Government are answerable for what they are doing in relation to these issues.

I am content that we should continue with this debate provided we are given some explanation of how this process is to be carried out. I am happy to engage, time permitting, in any number of briefings outwith this Committee with Ministers, or with Members of this House more broadly, so that they can explain how this process is to operate. I would also like to be assured that Members of the other place will get the same briefing, because it is absolutely certain that they will get 15 minutes to debate all this and decide it when it gets back to them. They may all be cut off in mid-sentence as they try to tease out what this means. I therefore encourage the noble and learned Lord to come to the Dispatch Box now, or at some stage over the next few hours, and explain how this is to be done.

I have already said that I broadly welcome the other aspects of this agreement—the non-financial elements—because I do not think that they represent the hollowing out of the Bill that was suggested earlier. They are comparatively small concessions. However, as my previous contributions to this debate, and those of my noble and learned friend, have indicated, they are concessions that we were encouraging the Government to implement in another way because we thought they went beyond the Calman recommendations, which we support. Legislative consent Motion conditionality is less relevant to the Bill now than it ever was. In any event, it was never relevant to my support for it. However, we now have a much more complicated environment that has generated the possibility of that LCM. When the noble and learned Lord comes to the Dispatch Box now or at some stage within the next few hours, I urge him to explain to us the implications of that much more complex environment.

[Lord Wallace of Tankerness]

My Lords, I am grateful to my noble friend Lord Forsyth for his amendment. He obviously had great prescience in tabling it because it has been debated today when a Written Ministerial Statement has been brought forward paving the way for a legislative consent Motion. As the noble Lord, Lord Browne of Ladyton, made clear, that is what it does—it paves the way for a legislative consent Motion, and it will be a matter for the Scottish Parliament to determine whether to pass it. However, as the noble Lord, Lord Foulkes, indicated, he would be rather surprised if the majority party in the Scottish Parliament did not take the lead from its leader.

I was asked by the noble Lord, Lord O’Neill, for more details. I have not held any direct negotiations with the First Minister on these matters. My right honourable friend the Secretary of State has been primarily responsible for the negotiations involving individual Scottish Ministers. The Written Ministerial Statement sets out the agreement that has been reached and we should be happy to provide further details to facilitate debate on Report. I had already indicated as much with regard to the Holtham proposals. Clearly, if other issues need to be raised, it is only right that I should facilitate that debate. As I think was acknowledged in our short debate before agreeing to go into Committee, a considerable amount of hard work was done to ensure that that agreement was concluded and, in turn, to ensure that that happened before today’s debate.

It is difficult for me to make other arrangements while I am here on the Front Bench, but I am more than willing—even at the conclusion of our discussions this evening—to meet noble Lords to arrange for briefings on paper, and perhaps to see what other briefings between Members of your Lordships’ House and relevant officials could be facilitated, so that when we come to Report or Third Reading, when there may be a bit more time, your Lordships will be properly informed and briefed.

I certainly pick up the point made by the noble Lord, Lord Browne, that Members of the House of Commons have more than a legitimate interest in these matters, because if this House chooses to pass amendments—and the Government will be bringing forward amendments to reflect some aspects of the agreement that require changes to the Bill—they will also have to be considered in the House of Commons. I certainly want to facilitate such discussions as best I can and, if it is thought suitable—and it is not at a ridiculous hour, which I hope it will not be—I shall be more than happy to meet anyone who wishes to have a preliminary discussion at the end of our proceedings today about how those discussions might best be achieved.

It has always been the Government’s intention to secure a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and it goes without saying that we are pleased that we were able to do that in terms of changes to the Scotland Bill and supporting non-legislative arrangements, and that the Scottish Government have also tabled a legislative consent Motion in support of the Bill. It includes finance and non-finance changes. I believe that these changes meet the tests that my right honourable friend the Secretary of State indicated were important, and by which this Government have set store, for any changes to the Bill package—namely, that they are based on evidence, maintain the cross-party consensus that supports the Bill and will benefit Scotland without detriment to the rest of the United Kingdom. We have gone further than in any other Bill in working between parties in Scotland and across the United Kingdom to build on a cross-party consensus. We have carefully considered and—where appropriate and where the case has been properly made—we have taken on board the views of the Scottish Government and Scottish Parliament. This has allowed an agreement to be reached.

My noble friend asked about the legislative consent Motion, and the position was also reflected in the contribution of my noble friend the Duke of Montrose. It may be useful if I say something about legislative consent Motions in the absence of the noble Lord, Lord Sewel, who I am sure would be able to correct me if I got it wrong. During the passage of the Scotland Bill through your Lordships’ House, the noble Lord, Lord Sewel, said that,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/98; col. 791.]

It is a convention; it is not law. The words “not normally” are there. An example occurred earlier this Session when the Scottish Parliament passed a legislative consent Motion objecting to parts of the Welfare Reform Bill. The Scottish Parliament consented to some parts that were within devolved competence and rejected other parts that had implications for Scottish Ministers. The United Kingdom Government—probably one of my noble friends from this Dispatch Box—moved amendments to excise those parts from the Welfare Reform Bill.

--- Later in debate ---

[The Duke of Montrose]

I am most grateful to my noble and learned friend for giving way. I am very interested in where he has gone with his explanations. It has been an interesting discovery that Section 30 orders can be applied to devolved and non-devolved matters. Section 30 orders can be applied within the legislation. If it is something included in an Act—this is the first time that we have had a new Bill since the 1998 Act—it seems that the legislation does not require the consent of the Scottish Parliament. This is the first time that the devolution guidance note has been before the Committee. It would be interesting to see the whole of the devolution guidance notes so that the Committee is aware of what the noble and learned Lord has to deal with in his negotiations with the Scottish Parliament. We are getting closer to where the legislative terms lie.

[Lord Wallace of Tankerness]

I am grateful to my noble friend for giving me an opportunity to make things clear. I rather suspect that the devolution guidance was placed in the Library by the previous Administration, but if there is any need to ensure that it is taken from the back shelf and made more readily accessible, I am sure we will see to that.

Perhaps it is my fault for not having explained it, or perhaps we have just glibly used the expression “a Section 30 order” without explaining it. A Section 30 order is not about dealing with things which are currently devolved. The purpose of a Section 30 order is to transfer issues which are currently reserved under Schedule 5 and devolve them to the Scottish Parliament. Perhaps one of the best examples of that since the Scottish Parliament was established in 1999 is the devolution of railways. There was extensive discussion and negotiation between the Scottish Executive and the United Kingdom Government. A Section 30 order was brought forward to bring about the devolution of railways to Scotland. Railways were not previously devolved. There were limits on that, as the noble Lord, Lord McConnell, will no doubt remember. Section 30 orders do not deal with matters that are already devolved. They are to confer on the Scottish Parliament devolved responsibility and powers in areas that are currently reserved. That is why it is important that they have to be passed by both Houses, as well as asking the Scottish Parliament, “Do you want these powers?”.

[The Duke of Montrose]

My noble and learned friend is describing what has been the habit of the use of Section 30 orders, but Section 30 states:

“Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient”.

Therefore, it can be used for both devolved and reserved matters.

--- Later in debate ---

[Lord Wallace of Tankerness]

I do not think that that is the way to transfer backwards. That may be possible; I will have to check. It may be possible to go in the opposite direction. I am trying to think whether that has ever actually happened. When the Arts and Humanities Research Council was established, because it had not hitherto existed and because under the scheme of devolution it was a devolved as opposed to a reserved matter, an order had to be brought forward to establish that it would be a UK parliamentary responsibility. I am not sure that it was a Section 30 order. The noble Lord, Lord Sutherland, may have been involved at the time. I certainly was, because I took the order through the Scottish Parliament.

The important point is that it changes the devolution settlement. It changes the boundaries between devolved and reserved powers. That is why it requires the consent of both Houses of Parliament and the Scottish Parliament before it proceeds to Her Majesty in Council.

I hope that I have shown that there is a distinction between that and a legislative consent Motion, which is by its nature a convention. On the basis of those explanations and the undertakings that I have given to try to identify ways in which we can discuss the matter in more detail—

[Lord Kerr of Kinlochard]

My Lords, the noble Lord, Lord Forsyth of Drumlean, raised one other question in his reading of the Statement. I am very grateful to the Minister for his Statement, and I feel much less pernickety about it than the Committee as a whole seems to do. It is a good thing that this agreement has been reached. A number of demands from the north have been dropped. A number of changes that the Government propose to make seem to me perfectly earnestful. The reason why it has been possible to negotiate this successfully is that everyone has decided that it is de minimis—it really does not change the price of fish. That is the trouble with the Bill: it does not attack the real issues.

The noble Lord, Lord Forsyth, referred to the sentence in the Statement in which we are told:

“The Government is open to considering what further powers might be devolved after a referendum on independence”.

The noble Lord asked how we should construe that sentence. Scots are good at punctuation. There is no punctuation in that sentence. That, I take it, means, “We are open to considering now, today”. It does not mean, “We are open to considering what further powers might be devolved, after a referendum”. The Minister had a good Scottish education, so I am convinced that I am reading this correctly. That seems to me to be a move from the porridge oats speech, where I think the punctuation included a comma. Am I right? Am I reading this correctly?

Secondly, what mode are we in? The porridge oats man is very muscular. He is very active.

“The Government is open to considering”,

suggests to me a rather passive role. The Government will sit there and if anyone turns up with an idea, they may look at it. Are we active or passive? I think that the porridge oats position, the punctuated position, is impossible—after there has been a referendum, then we will consider what more you might get. Scots have long memories. It will not work; that is an unsustainable position. Therefore, I am very glad to see no punctuation in that statement. Are we actively to define what further measure of devolution would be feasible, or are we to leave it to others to devise devo-maxes, devo- pluses and devo this, that and the other? I feel that there is a strong case in logic for being clear before an independence referendum about what would be on offer after it.

[Lord Wallace of Tankerness]

They may be very unfair on themselves but officials say, “Blame officials for poor punctuation”. I think I will reserve my position on that. I apologise for forgetting to pick up the point raised by my noble friend. As he and the noble Lord, Lord Kerr, correctly identify, the Statement says that the Government will consider further devolution after a referendum on independence. I believe that that is consistent with the position set out by the Prime Minister and with the evolution of devolution to date. It has involved a careful assessment of the evidence.

One could go back to the constitutional convention or the Calman commission. It has involved consideration of its implications across the United Kingdom—it is important to remember that any devolution has implications for other parts of our United Kingdom—and it has generally proceeded with cross-party agreement. Those are all essential ingredients, perhaps not of porridge oats but for moving forward. The Government are committed to continuing to consider amendments to the devolution settlement on that basis. My party and others are doing their own thinking on what that might be, but, as we have seen to date, any substantial progress has been made on the basis of cross-party agreement. That is important.

I make one further point for clarification. My noble friend the Duke of Montrose is right: the word “modify” means to decrease or extend the subject matter of Schedule 5, and I am advised that the order which I took through the Scottish Parliament with regard to the Arts and Humanities Research Council was indeed a Section 30 order that added something to Schedule 5.

[Lord Forsyth of Drumlean]

My Lords, we have had an interesting debate. To rescue the Minister, I think that paragraph 3 is headed,

“Further devolution in the future”,

which qualifies the sentence,

“The Government is open to considering what further powers might be devolved after a referendum on independence”.

I think that it clearly means that it is after the referendum.

I noticed that my noble friend did not answer my question when I asked what he could be thinking of, given the scope and nature of the Bill. As I get older, I get more and more interested in gardening. One thing that I have learnt is that it is a big mistake to pull plants up and move them before they have had a chance to settle and put down roots. It seems rather odd that we are discussing a Bill where the tax proposals will not come into effect until 2015-16. The noble Lord, Lord Kerr, wants us to start thinking about further devolution now. If you are going to plant this prickly sort of bush, it is probably a good idea to see whether any flowers are going to appear on it before deciding whether you are going to do more planting. I hope that my noble friend will not be tempted to expand the meaning of that sentence.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I had not appreciated the qualification of being accepted by both Parliaments. If they are accepted by both Parliaments, that will fulfil my requirements and belief.

I have an amendment which suggests a further referendum on devolution—whether we should have the status quo, devo-plus, devo-max or a multi-option referendum. I am not in favour of that now and I shall not press that because that was going to be 35 days after independence. I confess that this amendment has not received universal support; in fact, it has not received any support at all, which is probably why I am not going to press it.

A stronger reason is that we heard a very powerful argument from both Front Benches that the 1997 referendum’s second question gives power to Parliament to decide further devolution. If both Parliaments, as my noble friend Lord Reid has agreed, decide on further devolution, I do not think a referendum is necessary.

Finally, there is the question of further devolution which the noble Lord, Lord Kerr, raised in his interesting intervention about porridge oats and punctuation. I agree—and now it seems the Prime Minister agrees—that further devolution needs to be carefully considered. We have got that in the Statement which the Secretary of State made today. It should be carefully considered; as a number of people have said, the devolution we have at the moment—which is the devolution of the Calman commission, the further extension—has been agreed on an all-party basis, and on the basis of consensus and consultation. That should be the basis of any further extension of devolution.

Both my own party, the Labour Party, and the Liberal Democrats, the Minister’s party, have commissions looking at this. In our debates on Thursday, we had an indication that already there is a degree of a mandate in relation to further fiscal devolution.

There are other issues in relation to the referendum, such as the role of the Electoral Commission, which I strongly support as being responsible for the conduct of the referendum. Another is the franchise, because while the Scottish Government propose to extend it to 16 and 17 year-olds, I believe there should be no unilateral reduction in the voting age just for one referendum. There are a number of other detailed matters which we will come to in the later amendments.

We now have this agreement on the legislative consent Motion. We have substantial agreement that greater tax powers are acceptable, and that borrowing consent, which we are giving to the Scottish Parliament, is welcome, and that specific areas are now being devolved. Let us not make any mistake about it: this implementation of the Calman recommendations is a very substantial increase in the devolved powers of the Scottish Parliament. We should not be hiding that under a bushel. We should be proclaiming it from the rooftops. Many of the advances have come from pressure from Labour MPs and Labour Peers. It is something I am now proud to support fully. I beg to move.

[Lord Wallace of Tankerness]

My Lords, it was thought at one stage that it might be helpful if I indicated the Government’s position on these points. I shall do that if the House thinks it would be helpful and at the end I will respond to points made in the debate as well as to more specific points made by the noble Lord, Lord Foulkes.

I also wish to thank noble Lords for helping to try to deal with these issues in two discrete groups. The first group concerns how to legislate for a referendum; for instance, whether there should there be one question or two on the ballot paper, the nature of a binding and advisory referendum, and whether it should be held across the United Kingdom. Indeed, my noble friend Lord Caithness has indicated that he wishes to discuss implications for the Scotland Bill of Rockall and, a place dear to my heart, Orkney and Shetland. Subsequently we will have a debate on one of the later groups on more practical but nevertheless very important matters relating to the referendum, including the role of the Electoral Commission, eligibility to vote in a referendum, and oversight of the referendum.

I want to endorse what the noble Lord, Lord Foulkes, said, when indicating that he supports the Government’s view of a referendum that is legal, fair and decisive. I think he said that fairness must be fairness for all, and it is a very important point. We will certainly come to debates on the franchise and the role of the Electoral Commission, but I would want to agree that the referendum must be conducted in a way that is deemed fair to all and that both sides are satisfied and can accept the outcome. There would be nothing worse than to have an outcome where one side or the other was crying foul. In all our views, this means adhering to the well-established rules for referendums, so that neither one side nor the other can claim that there has been a false referendum.

As I set out in my Oral Statement to your Lordships’ House on 10 January, the Scottish National Party won a significant victory in May 2011. In that election it campaigned for Scottish independence and its manifesto included a pledge to hold a referendum on independence. But winning an election victory is not sufficient. The SNP did not explain how, in legal terms, it proposed to deliver a referendum either in its manifesto or in the election campaign. Nor indeed did the Scottish Government set out their legal view or their plans for many months. As has been highlighted before in your Lordships’ House, this is not a matter that can be avoided. To legislate for a referendum on independence, the Scottish Parliament must have the power to do so, and it is the Government’s clear view that the Scottish Parliament does not have that power.

That is why on 10 January we published our consultation paper on how to deliver a legal, fair and decisive referendum. As I indicated earlier, officials are reviewing and analysing the responses and the Government will publish a full report on the consultation, but perhaps I may give some early indications. We received almost 3,000 responses. As I have already indicated, they came from members of the public in Scotland and beyond, and there were contributions from businesses, academics, political parties, trade unions and many others that belong to civic Scotland. I believe this will, and does, provide a sound basis for gauging Scottish opinion on the issues.

The Government’s central proposition in the consultation was, as has been said, that the referendum must be legal, fair and decisive. It is important that the responses we received are analysed thoroughly, but I can indicate some of the preliminary results on the key issues. First, on legality, we must turn to the Scotland Act 1998. The Act is clear. The Scottish Parliament cannot legislate on matters reserved to this Parliament, including,

“the Union of the Kingdoms of Scotland and England”.

Any Act of the Scottish Parliament is simply not law if it is outwith the competence of the Scottish Parliament. An Act of the Scottish Parliament is outside legislative competence if it relates to reserved matters. The question of whether a provision relates to a reserved matter is determined by reference to,

“the purpose of the provision, having regard (among other things) to its effect in all the circumstances”.

We are quite clear that the Scottish Government’s purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for this to happen. Both purpose and effect relate directly to the reserved matter of the Union. Your Lordships’ Constitution Committee, in its report published last month, said:

“An authoritative determination of the legal issues analysed in this chapter could be given only by the courts. Having considered the matter in detail, we are of the clear view that the … analysis offered by the UK Government is correct. Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to … authorise a referendum about independence”.

The committee welcomed the Government’s proposal that a Section 30 order be made to devolve power on the Scottish Parliament to legislate for a referendum on Scottish independence.

In our consultation document, we invited views on devolving powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly from Westminster. We have been clear throughout this process that it is the UK Government’s preference to work with the Scottish Government to secure agreement on the way forward. This is not a question about the mandates of Scotland’s two Governments. We believe it is about empowering the people of Scotland to participate in a referendum that is legal, and it is crucial that any referendum is beyond legal challenge. To provide for that legal referendum, we have set out our view that the power to legislate for a referendum should be devolved by the use of a Section 30 order agreed by both Governments and subsequently put to, and agreed by, both Parliaments.

Initial analysis of the responses received demonstrates that a significant majority agreed with that approach. That position was not simply supported by the volume of respondents, but by key academic experts and commentators including Professor Matt Qvortrup from Cranfield University, Professor Adam Tomkins of the University of Glasgow, Alan Trench of the University of Edinburgh, and representatives of organisations such as the Law Society of Scotland, the Electoral Reform Society of Scotland, the Royal Society of Edinburgh and the British Academy.

Noble Lords will also have noted that, soon after we published our consultation, the Scottish Government published their own document on 25 January. In that document the Scottish Government also acknowledged the legal problem and accepted that a Section 30 order was the best way to remove doubts about the competence of the Scottish Parliament. We welcome this endorsement, which the Secretary of State has discussed with the First Minister, and we look forward to continuing that dialogue over the coming weeks. Against that background, and indications that the Scottish Government want to reach agreement on these critical matters, I can confirm that we will not be tabling any government amendments on a referendum in the Scotland Bill.

In addition to ensuring that the referendum is legal, the Government have been clear that it should also be fair and decisive. That will be discussed when we debate the second group of amendments.

[Lord Forsyth of Drumlean]

When my noble and learned friend says that the Government will not be tabling any amendments to the Bill, he is ruling out using the Bill as a vehicle to run a referendum. The Section 30 procedure requires the consent of the Scottish Parliament. In the absence of that consent—perhaps over the issue of whether there should be one question or two—is he prepared to introduce legislation in the next Session to provide for the referendum to be conducted along the lines that the Prime Minister set out in what the noble Lord described as his porridge oats speech?

[Lord Wallace of Tankerness]

My Lords, my noble friend was right to say that we do not intend to use the Bill as a vehicle for introducing provisions for the referendum. I cannot be clearer than that.

[Lord Forsyth of Drumlean]

My noble and learned friend was absolutely clear on the point about using the Bill for the referendum. Everyone agrees that the preference has always been to use the Section 30 power, which requires the agreement of the Scottish Parliament. The Prime Minister stated clearly that there would be a referendum; that there would be one question; and that it would be run by the Electoral Commission. In the absence of agreement to that under Section 30, will the Government bring forward in the next Session legislation to give effect to that? If that is their position, I will be happy not to move my amendments and not to waste any more time talking about referenda.

--- Later in debate ---

[Lord Wallace of Tankerness]

I will make this clear. If agreement could not be reached on a Section 30 order, and if we ensured that the matter was kept out of the courts—which I hope would be the preference of most if not all of us—we would need to consider what other options were open to us to provide a legal, fair and decisive referendum. However, just as we were taken many times down the road of, “What if we cannot get a legislative consent Motion?”, which we have now seen is possible, we should make it clear that we are confident that we can reach agreement.

We reached agreement on the Scotland Bill when some said that it would be impossible. We reached agreement that Section 30 was the preferred route of both Governments to deliver a legal referendum. When I made my Statement on 10 January, I could not have said that that would be the case. The Scottish Government publicly stated that they share our view that the Electoral Commission should review the question. In their consultation paper, they state that their preference is for a single, direct question. Therefore, I am confident that we can continue to reach agreement on all these matters. The focus of our efforts must be on doing that rather than on speculating hypothetically. Just as we achieved agreement on the Scotland Bill, I believe that further agreement will be possible.

[Lord Reid of Cardowan]

Perhaps I may clarify something in view of our earlier discussion. Apart from the process of Section 30, the substance will count as well. Will the noble and learned Lord be clear with the House that nothing in the Section 30 order arising from any discussions could validate changes in relationships inside the United Kingdom that affect the people of Scotland, and also those of England, Wales and Northern Ireland, unless they are consulted either through their Parliament or Assembly or in a UK-wide referendum? This is an important point and if the noble and learned Lord can clarify it, I will be very happy.

[Lord Wallace of Tankerness]

I entirely agree with the noble Lord that the point is important. He made an important distinction between a referendum on whether Scotland should remain part of the United Kingdom, and one on whether Scotland should remain part of the United Kingdom but under a different devolution settlement. He was right that it would have implications for other parts of the United Kingdom. In 1997 the Government of whom he was a member came to power with a substantial mandate to introduce devolution, not only for Scotland but for Wales and Northern Ireland. Parliament respected that mandate and passed the legislation. What we are doing in the Bill, although it brings changes, proceeds from the manifestos of three parties.

The noble Lord made that distinction, and it is the Government’s view that there should be a single question on independence and that any other question would be of a different character and therefore would not sit well if it came in the double-question referendum that is sometimes suggested. The point that I was making was that the Scottish Government, in their consultation document, stated that their preference was for a question on independence. We should not lose sight of that, as sometimes it is easy to do.

We believe that a referendum on independence should address the single most significant issue that people in Scotland will face for many generations. That is why in the consultation paper we proposed that there should be a single question on independence.

[Lord Reid of Cardowan]

I am trying to be helpful to the noble and learned Lord. I urge him not to place too much emphasis on the fact that the Scottish National Party, which has independence as its core belief, expressed the view that it just wants a discussion and a vote on independence. If it had any other ideas about achieving a different strength or form of devolution, it certainly would not say this. Instead, it would point to an amorphous grouping in Scotland that supposedly demanded it, and would concede it reluctantly—because of course it wants nothing less than independence. The politics and the substance of this are as important as the process. Would it be legal to proceed with an alteration in the relationships of countries inside the United Kingdom without the endorsement of the United Kingdom Parliament or the people of those countries?

[Lord Wallace of Tankerness]

My Lords, I was asked on one or two occasions whether it would be legal to have a referendum on so-called devo-max without authority being conferred by this Parliament, either by a Section 30 order or by legislation on the Scottish Parliament. I was very clear that that, too, would change the relationship between Scotland and England and therefore it would be outwith the competence of the Scottish Parliament. I hope that that reassures the noble Lord.

As the noble Lord, Lord Reid, indicated, there are some who support approaches short of separation, such as devo-max or devo-plus. We must be clear that there has been no single, agreed definition of any of these terms. It is the Government’s firm view that we should not intertwine questions about the future balance of devolution in the United Kingdom with the question of Scotland’s place in the union.

[Lord McConnell of Glenscorrodale]

On the issue of seeking agreement with the Scottish Government on the nature of the question to be posed on the ballot paper, are the Government willing to look at my suggestion as a way not only of compromising between the two positions outlined by the United Kingdom and Scottish Governments but of producing a clearer answer so that people can understand with absolute clarity what they are voting for, and everyone afterwards can accept and understand the result? The question on the ballot paper should be posed not as a yes/no question, either for independence or for remaining within the union, but as a choice between two statements, the first being that Scotland should become an independent country and the second being that Scotland should remain part of the United Kingdom, with voters asked to put a cross on the ballot paper beside the statement of their choice. It would be consistent with the form of words used in the 1997 referendum. It would also give everybody a chance to campaign for their own positive choice, and for them to accept afterwards that the result was fair and not skewed by who had the choice between yes and no in advance.

[Lord Wallace of Tankerness]

The noble Lord makes an interesting and constructive proposal. I agree with the object of what he is proposing: it must be a question that is fair and brooks no division or challenge afterwards. This is perhaps relevant for the next group of amendments on the role of the Electoral Commission. It has an important and tried and tested role to play in this, so perhaps this is an issue that we will return to on the next group of amendments.

[Lord Neill of Bladen]

Someone said that the question, or part of the question, might be, “Do you consider the referendum to be legal?”. That would be a fatal question to put. It is an extraordinarily difficult legal question, and there is no reason why the ordinary voter should have a view that is entitled to any weight on that. However, he will certainly be asked whether he wants to have one country or two, in the language there is for that. To ask, “Do you think it would be legal?”, would be a mistake.

[Lord Wallace of Tankerness]

My Lords, I do not think anyone is suggesting putting on the ballot paper, “Do you think it is legal?”. That would ultimately be a matter for the courts to determine. The collective view is that we should find a way forward that, as best as anyone can, puts that question beyond doubt. That is why we recommend a Section 30 order as the best way of achieving that.

Let me make progress and allow others to contribute. Early analysis of the consultation responses shows clear support for a referendum with a single question on independence. We will take this support for our position into discussions on the Section 30 order. We must be clear that the Scottish Government in their own consultation paper state that their preference is for a single question on independence.

Finally, on the amendments that consider whether a referendum on independence should be held in Scotland or across the United Kingdom, I readily recognise that a decision for Scotland to leave the United Kingdom would have significant implications for those left in the remainder of the United Kingdom. However, it has already been articulated by the noble Lord, Lord Reid, that the question of whether Scotland remains part of the UK or becomes independent is for the people of Scotland alone to answer.

The noble Lord, Lord Foulkes, said that we should set some targets. I hope that in this debate and the debate on the next group of amendments the Government can get a flavour of what your Lordships believe are the important targets and issues that we should strive to achieve in subsequent negotiations.

[The Duke of Montrose]

The Minister has been most helpful in explaining the Government’s position. There is one extra element that it would be interesting to know about: would the Order in Council be specifically limited to one referendum? Multiple referendums would raise even more seriously the problem of the involvement of the other parts of the United Kingdom that the noble Lord, Lord Reid, is worried about.

[Lord Wallace of Tankerness]

My Lords, I am quickly trying to look at the draft Section 30 order that was attached to the consultation. It provides for just one referendum.

[Lord Sutherland of Houndwood]

May I ask the Minister a question? He may not want to answer it, but clarification would be helpful. He referred to the Government’s belief in the importance of a single direct question. Is that a belief or a sticking point? There is a big difference between the two, and for some of us it would be a sticking point. That is the point raised by the noble Lords, Lord Reid and Lord Foulkes. We have not yet solved the West Lothian question with the current legislation. This Bill will enhance that question in the minds of many people across the whole of the UK. If we were to go further in some undefined form of devo-max, the difficulties would be greater, so I take him back to his point about fairness.

[Lord Wallace of Tankerness]

That is an important question. If other noble Lords want to make their contributions, I will reply to it and other points when winding up the debate.

[Lord Williamson of Horton]

My Lords, I have sat through the three and a half hours of this debate. Fortunately, Hansard records our words but not our accents. If it did, it would have to have a little asterisk against mine because, apart from a very brief intervention by my noble friend Lord Neill, I am the only person with a non-Scottish accent who has participated in the debate.

I shall make one point, but it will be quite short. I thank the Minister for what he said in clarifying the Government’s position. It is extremely important. In so far as conditions are going to be set for the referendum in the way in which it is presented in the Section 30 Order in Council, it is extremely important that when we finalise that position, we still carry the support, trust and confidence of the people of the other countries of the United Kingdom that the referendum will be fairly drawn up and monitored. There is more than one party to this referendum. There are the Scottish people and there are the people of the United Kingdom as a whole, and confidence in the political process is important.

For that reason, I will say briefly that although these issues are going to turn up—as we know now, in the Section 30 Order in Council and not in this Bill—none the less the points that are raised in the amendment moved by the noble Lord, Lord Foulkes, and that also arise in his Amendment 94C are extremely important. I emphasise that it is extremely important that we stand by the points that are set out in these amendments. The first is that we are talking about whether Scotland should become independent of the rest of the United Kingdom. There must be a clear question on the ballot paper and in the order. The referendum must be carried out in accordance with the provisions of the Parliamentary Voting System and Constituencies Act 2011 and the draft must be laid before each House of Parliament. The two further points in Amendment 94C seem to be extremely important. The timing must be made quite clear. It cannot be left ambiguous. The question must be equally explicit. I think that the question that the noble Lord, Lord Foulkes of Cumnock, has put forward in that amendment is excellent.

We need to stick to these points, although I have this terrible feeling, based on a long period in public life, that when we come to negotiations—and there will be negotiations in relation to this Order in Council—gradually a little change will come in. It will not be exactly as it started off, and by the time we get to the end we may find that we are not carrying fully the confidence of all the people of the United Kingdom. Those four points are extremely important to me. They are negotiating points that we need to stick to. We have to be extremely careful that we do not just fade away into something that is much too mushy. We need to stick to the clear points that we have often discussed here. They are extremely valuable and must be carried into the Order in Council.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part in this very useful and informative debate. There are clearly issues that go to the core of the referendum issue and what shape a Section 30 order might take. Before I address those points, it might be helpful if I pick up some of the more specific points that were raised, not least in the amendments spoken to by my noble friend Lord Caithness.

In many respects, his amendments proceed on the proposition that in the event of Scotland voting for independence there should be a subsequent referendum of the whole United Kingdom to ratify it. I certainly take the view, which was expressed by the noble Lords, Lord Browne and Lord Reid, that, to use the words of Sir Malcolm Rifkind—if it was he who coined them—“If you want to leave the club, the other members shouldn’t really stop you”. Therefore, it is not a tenable position to suggest that if Scotland were to vote for independence, there should be a subsequent vote in the United Kingdom as a whole. In that sense, the subsequent vote of the people of Orkney and Shetland and the position of Rockall would not arise.

That said, my noble friend has raised an important issue. He gave us the history of Orkney and Shetland’s association as part of Scotland and, subsequently, the United Kingdom, having previously belonged to the Danish kingdom. The Government fully acknowledge the distinct community view of the people in the northern isles. This has been an important feature of previous debates on the Scottish constitutional position. The famous Grimond amendment on the position of the isles was taken through by my predecessor as MP for Orkney and Shetland, Jo Grimond. It led indirectly to the establishment of the Montgomery committee by the late George Younger when he was Secretary of State to look at the position of the islands’ communities. In the debates on the 1997 referendum, distinct issues were raised on the position of Orkney and Shetland. When the Scottish Parliament was established, I was able to ensure through its Standing Orders that a policy memorandum should address the implications of policy for Scotland’s island communities. I also recall that, in the 1987 general election, the Scottish National Party stood down in favour of a candidate from the Orkney and Shetland Movement, who stood on a platform of self-determination.

Since this issue clearly attracts attention, consideration and debate in the islands, we take as our starting point that we very much hope and believe that Scotland would not vote for independence and, therefore, that the position would not arise. For those eligible to vote in Scottish Parliament elections in Orkney and Scotland, our preference would be that that should be the franchise for the referendum. They will have the opportunity to express their views in the same way as those eligible to vote elsewhere in Scotland. As such, we do not see the need at present to treat residents of any particular part of Scotland differently from those elsewhere in the country when it comes to the consequences of the referendum result.

I can assure my noble friend and the Committee that I always listen carefully to the views of the people of Orkney and Shetland. I am in regular dialogue with those who represent them in both this Parliament and the Scottish Parliament. If they choose to make a case for formal constitutional recognition of their social, cultural and economic distinctiveness, I will certainly listen with care and respect. The coalition Government have a very soft spot for and pay great attention to the people of the northern isles.

Rockall is administered by the Western Isles Council under the jurisdiction of Scots law. The amendment, which seeks to change the original Island of Rockall Act 1972, could sow confusion. We do not believe that any of the issues raised by the various approaches to the United Nations about the continental shelf in any way change the United Kingdom’s ownership of Rockall. However, we would possibly be in an anomalous position if there was independence and the amendment went through, since the Act would assert that Rockall was no longer part of Scotland but it would be administered by a Scottish local authority. I am sure that is not what my noble friend intended but he has raised an important issue. The United Kingdom Government are clear that Scotland is stronger in the United Kingdom and that the United Kingdom is stronger with Scotland in it. Although there is no one on Rockall to vote, we are sure that it, too, will remain part of the United Kingdom.

I say to my noble friend Lord Mar and Kellie that Jersey, Guernsey and the Isle of Man have a completely different constitutional history and relationship from that of Orkney and Shetland and, indeed, Scotland. The noble Lord, Lord Reid, pointed out that Jersey, Guernsey and the Isle of Man have never sent Members of Parliament to Westminster. Therefore, their constitutional position is somewhat different.

I have listened carefully to the points made in the wider and more general debate. I certainly found it valuable to hear the different views expressed, although there was considerable consensus among them. As I have set out, the Government believe that it is right that there should be a single-question referendum to address Scotland’s place in the United Kingdom. We have set this out in our consultation paper and have sought views on it. The responses that we have received roundly support this position. Over the coming days and weeks, we will continue to assess in full the detailed arguments made in response to that consultation.

The amendment of my noble friend Lord Forsyth seeks to provide a referendum on independence, to be run by Westminster. It was supported by my noble friends Lord Lang and Lord Caithness. I made it clear that we would not look to use the Bill to deal with a referendum. As we made clear on page 19 of our consultation document, the future of devolution and independence are two entirely separate constitutional issues. The Bill is concerned with the former—the future of devolution—not the latter. It would not be in anyone’s interests to confuse the two issues. Amending the Bill to deal with independence would risk that confusion.

As I have indicated, and as has been widely recognised, our clear preference is that a Section 30 order, agreed between Governments and approved by both Parliaments, should be used to give the Scottish Parliament competence to hold a referendum on independence. As I stated in my opening speech, that position is supported not simply by the volume of responses to our consultation but by a number of experts and key commentators, several of whom have already made their comments public. Professor Adam Tomkins of the University of Glasgow said:

“The section 30 solution is both the neatest and the most compelling solution available, not least because it offers to the Scottish Parliament the fullest possible say in the process”.

The Law Society of Scotland has said:

“The Society is of the view that the making of such an Order should remove doubt as to the question of legislative competence and for that reason it may be desirable that an Order be made”.

The response of CBI Scotland also makes that point. The Scottish Government themselves have accepted that a Section 30 order is the best way to remove what they acknowledge are doubts about the competence of the Scottish Parliament to legislate for a referendum on independence. With that weight of academic and legal support, support that goes much wider than that and the support expressed in your Lordships’ House, we are confident that we will reach an agreement with the Scottish Government on a Section 30 order.

I shall pick up some of the points that were made in dealing with this issue. The noble Lord, Lord Neill of Bladen, asked how we would determine a referendum on federalism across the United Kingdom if different parts produced different outcomes. The noble Lord, Lord Reid, answered that point very effectively. The debate demonstrates why we need a clear referendum on a single question about independence. There should be one question in a legal, fair and decisive referendum to settle this matter before we turn to consideration of any further changes to devolution across the United Kingdom.

My noble friend Lord Maclennan raised the question of the referendum, the importance of the question that is asked and the use of the Electoral Commission. As set out in this Government’s consultation paper, our view is that any referendum held in the United Kingdom would be subject to normal rules on referendums as set out in the Political Parties, Elections and Referendums Act 2000. The commission would have responsibility for overseeing the conduct and regulation of the referendum independently of the Government. Since the Electoral Commission was created, it has overseen three referendums, which have followed the framework of the 2000 Act, and no minimum turnout or threshold has been raised. My noble friend referred to the question to be asked and the noble Lord, Lord Foulkes, suggested that it might be loaded. On the wording of the question, again it is our view that any question for a referendum on independence should be subject to the same rigour and the same rules as a question in any other referendum. It is the Government’s view that the Electoral Commission should fulfil the same role in reviewing the question as set out in Section 104 of the Political Parties, Elections and Referendums Act.

My noble friend Lord Maclennan also asked—I think that the noble Lord, Lord Browne, reiterated this but we are all interested in this—how this Parliament can continue to play a role in ensuring the content of any Section 30 order before it is formally put, and in ensuring that any question is fair, legal and decisive. We have made clear our view that a Section 30 order agreed between Governments and Parliaments is the best way to deliver a fair, legal and decisive referendum. Today’s debate is an important part of seeking views from this Chamber, just as the consultation paper allowed a wider input. It has been suggested that a draft should be made available before debates in this Chamber on any Section 30 order. As I indicated earlier, these are important and interesting suggestions that we will certainly consider further. I know that the noble Lord, Lord Browne, understands that I cannot make any commitment on what will happen. However, I am sympathetic to the concept of identifying a means by which there can be further consideration, and indeed further accountability, on the part of Ministers who are negotiating these matters. We all have an interest in these matters and a part to play. It might be useful to engage with others in opposition and our colleagues in government to try to identify how best we might achieve that.

[Lord Deben]

I thank my noble and learned friend for giving way but does he accept that this is also very important for those of us who are not Scottish, and for the nation as a whole? We must feel that this decision, which will be made by the Scottish Parliament, is fair. I am not saying that we should have a say in it but we should understand the system. I hope he will ensure that the English, Welsh and Northern Irish are fully informed of the care with which this measure is being taken forward because there is a distinction between this decision and any decision that may be made subsequently on further devolution. The comments of the noble Lord, Lord Reid, on that are very important. However, we must make sure that the whole of the United Kingdom recognises that this process is fair, not just to the Scottish people but to the whole of the United Kingdom.

[Lord Wallace of Tankerness]

I have considerable sympathy and support for what my noble friend says. I think that the noble Lord, Lord Williamson, was the first Peer to express a view on this matter who did not speak with a Scottish accent, and the noble Lord, Lord Empey, also contributed to the debate. I am certainly acutely conscious—the Government are also acutely conscious of this fact—that although a referendum on independence is a matter for the people of Scotland to decide, nevertheless that process impacts on other parts of the United Kingdom. I believe that this is a two-way process. I believe that Scotland is better off as part of the United Kingdom. I also believe that the United Kingdom is better off with Scotland being part of it. Therefore, other parts of the United Kingdom have a legitimate interest in this matter. A Section 30 order would have to come before your Lordships’ House, and indeed the House of Commons, for approval by the Parliament of the United Kingdom.

[Lord Maclennan of Rogart]

I am most grateful to my noble and learned friend for giving way. However, it would not be attractive if the Section 30 order, as a result of a process of negotiation with the Scottish Government, had been decided and then presented to Parliament. This is not a treaty for which we are seeking ratification; it is a legislative process. Although I entirely accept all the arguments that have been forward in favour of the Section 30 process, I think this United Kingdom Parliament will feel that it is representative of the country as a whole and would want to feed into the process of getting the thing right so that it is not seen as a divisive issue which we have to pull down after the event.

[Lord Wallace of Tankerness]

I hear what my noble friend says and the force with which he says it. I suggested that we might try to identify a way in which we can engage without finding ourselves in a position where a negotiation takes place in public. As regards the point made by the noble Lord, Lord Sutherland, I do not think he would expect hands to be declared in any negotiations. Nevertheless, I do not want to be party to any mushy outcome, as I think was suggested by the noble Lord, Lord Williamson. We have been given a very clear steer by your Lordships’ House, not least by the noble Lord, Lord Williamson, as regards what things are important.

[Lord Forsyth of Drumlean]

My Lords—

[Lord Wallace of Tankerness]

I hope that I may finish this point and then I will certainly give way. The noble Lord, Lord Williamson, said that there should be a clear question on independence. I hope that I have made that clear. He indicated that each House of Parliament should be involved in that, and a Section 30 order certainly delivers that. He talked about the timing. We may come back to that when we discuss the next group of amendments but the Government have certainly made it clear that they would prefer a referendum to take place sooner rather than later. These are important points which strengthen our position in any negotiation as they are genuinely supported across parties and those attached to no parties in your Lordships’ House.

[Lord Forsyth of Drumlean]

I am finding it difficult to understand what there is to negotiate about if we are to have one question and the Electoral Commission is going to run the process. I can see that there might be flexibility on timing, which I do not regard as very important. However, I share the anxiety expressed by my noble friend Lord Maclennan, that you cannot negotiate on these central principles. The worry is that we shall end up with a fudge which we will not be able to amend because of the process. If my noble friend is saying, “Look, we’ve got the message; we are committed to”—the point was made to my noble friend Lord Lang—“a single question: the role of the Electoral Commission; and we are not going to move on that, and it will be part of the Section 30 order”, all of us will be a bit less nervous.

[Lord Wallace of Tankerness]

I tried to note down a phrase that my noble friend used: “We are determined to resolve this question”. We are determined to resolve this question. The noble Lord, Lord Browne, said that there was little room for manoeuvre. The Scottish Government have tried to describe the issues that we have set out to ensure a legal, fair and decisive referendum as having strings attached. We are not attaching strings. We are seeking provisions, such as in any other referendum, that ensures that it is delivered successfully, and where all sides agree that it has been a success and a decisive referendum. The manifesto commitment of the Scottish National Party was to have a referendum on independence, not devo-max. Therefore, if we say that we support a single question, we are actually seeking to give legal substance, a legal basis, for something that that party put in its manifesto. That is why our position is very strong as we go forward in seeking to achieve a Section 30 order.

[Lord Forsyth of Drumlean]

I do not want to prolong this. My question was: is the Minister saying to us, in pursuing his Section 30 route, that his position will remain the same—that there is no flexibility on these central issues of a single question and the role of the Electoral Commission?

[Lord Wallace of Tankerness]

There has been considerable agreement between the two Governments on the role of the Electoral Commission, which is vital. I do not believe that we would get a fair, legal and decisive referendum if we did not involve the Electoral Commission. A signal as to why I believe that we can reach an agreement is that already, since I made a Statement on 10 January, the Scottish Government have come a long way and acknowledged the position of the Electoral Commission.

I hope that I have tried to express clearly what the Government believe are the key issues on this matter, without saying—

[Lord Maclennan of Rogart]

I am grateful to my noble and learned friend. Will he leave it to the Electoral Commission to decide, in pursuance of this goal of decisiveness, that a majority of one vote would be decisive, or does he accept, particularly as regards the Cunningham amendment in the past, that Parliament ought to discuss that issue before it is put to the Electoral Commission?

[Lord Wallace of Tankerness]

I indicated that we are not generally disposed to supporting the idea of a threshold. My noble friend mentioned the Cunningham amendment, which related to a classic example of a referendum that many of us did not consider, at the end of the day, to be fair. Heaven forbid that we should ever find ourselves in a position whereby, after a referendum on independence, 30 years later one side or the other cries “foul”—with some justification. That is why the oversight of the Electoral Commission is very important.

The noble Lord, Lord Browne, and my noble friend Lord Forsyth raised a point about timing to which I should like to respond. I was asked what the timetable would be. We should press on with this matter very early indeed. We should be pressing for early engagement with the Scottish Government immediately after the close of their consultation. There have already been preliminary discussions between my right honourable friend the Secretary of State and the First Minister—indeed, the Prime Minister met the First Minister. I am sure that they will receive representations. If the Scottish Ministers think that independence is such a wonderful thing, why do they want a delay in getting it? This is a matter on which we should seek to make substantive and early progress to allow their referendum to conclude.

I will take one further intervention before I make my final point in response to the noble Lord, Lord Empey, and my noble friend Lord Forsyth.

[Lord McConnell of Glenscorrodale]

I thank the Minister for giving way. On the specific of timing, in response to the comment of the noble Lord, Lord Forsyth, that the timing perhaps does not matter as much as the issue of the Electoral Commission and the other issues we have been discussing, we should be cautious. It seems to me, with the Scottish unemployment rate now higher than in the rest of the United Kingdom and Scottish growth now below that of the rest of the United Kingdom, there is a degree of urgency about resolving this uncertainty. I hope that the Government will not de-prioritise the timing of the referendum in order to secure agreement on the other issues. Timing the referendum in advance of some date nearly three years away is vital if Scotland is going to get the growth and jobs that it badly needs.

[Lord Wallace of Tankerness]

The noble Lord makes an important point, which was reflected in some of the responses to the consultation, not least from SSE. My noble friend Lord Forsyth and the noble Lord, Lord Empey, made the point that we want the debate to move on to the substance of independence, a point also made by my noble friend Lord Caithness when he raised the question of the currency. Those are questions that the Scottish Government ought to be addressing. I entirely agree. It is important that we get the process resolved, and resolved swiftly, but it is equally important that we get on to the substantive debate about the benefits to Scotland from remaining part of the United Kingdom, part of the most successful union of nations, certainly in modern times, and possibly for even longer.

As noble Lords will be aware, my right honourable friend the Secretary of State has raised six questions with the Scottish Government to which we still await answers. Many others, including Members of your Lordships’ House, have raised other questions. I am confident that when we get to the substance of the referendum debate, we can expose the weaknesses in the independence argument and do so on a positive footing by showing what is really positive about Scotland remaining part of the United Kingdom. On that basis, I invite the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, we have an excellent debate. We have had a very helpful reply from the Minister. We have another debate looming. I therefore immediately beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I have already had my say on the issue of different referendums quite extensively and there are only two aspects of our debate on these amendments that I have not expressed a view on, so I shall concentrate my remarks on them. First, I turn to the role of the Electoral Commission. A number of possible roles for the Electoral Commission are reflected in the amendments that have been proposed by noble Lords. It seems to me that the role of the Electoral Commission in relation to referendums is now settled. We had two referendums in 2011 and the Electoral Commission played a role in respect of them both which your Lordships’ House seemed well satisfied with. I have heard no criticism of its role in terms of supervision.

It played a specific role in testing what has become known as the intelligibility of any proposed referendum question in relation to both of the 2011 referendums. I understand that the commission indicated in its response to the Government’s consultation that it does not have the legal power to play that role in relation to the proposed referendum on Scottish independence and it has asked the Government to consider, as indeed have other consultees, using this Bill to give it that power so that it can get on with testing the intelligibility of the proposed questions. Of course, it could take all the questions that have been proposed in amendments and test their intelligibility on Scottish voters, focus groups and others. The commission is willing to do that job and I think that the Government should consider amending the Bill on Report to give it that power.

Otherwise, much as the proposals in the amendments before us are attractive and beguiling, I think that we should ask the Electoral Commission to play exactly the same role it has played in previous referendums, particularly the two which were conducted under legislation passed in this House and in the other place for the referendums held in 2011. There was endless debate about its role and agreement was reached before it set off on its work.

I say this for a very good reason: if we want the process that determines how the referendum will be conducted to be seen as legal, fair and decisive—and we expect now that that will be either in the context of a Section 30 order and the preparation for it, or some other option should the Section 30 order not be consented to—we have to avoid creating special processes or, dare I say, a special franchise for the election. The arguments of those who construct emotional, historical or family reasons for everyone who has an interest in the future of Scotland to be included in a franchise are very interesting. If we were to be all-inclusive we could find a way of doing so, but that would leave us open to the accusation that we are creating a special franchise in order to influence the outcome.

If the referendum is to be seen as legal, fair and decisive we should look to a pre-existing franchise, which is what the consultation did. It referred to the two pre-existing franchises in Scotland—the one for the United Kingdom Parliament and the other for the Scottish Parliament and for Scottish local government—and asked for opinions on which of the two those who responded to the consultation preferred. I am content with either of them but I veer towards the one for the Scottish Parliament. However, we can have that debate in the future when we come to look at the matter in the context of a decision, rather than in the context of a proposal, which is where we are at present.

With all due respect to my noble friend Lady Taylor, I know of the difficulties we had not only in persuading members of the Armed Forces to register but in facilitating that registration so that they could vote. I have great sympathy for people, particularly those in the Armed Forces, who are ordered to be somewhere rather than making the choice and thus being denied the franchise. We ought to look more generally at that issue to see whether we can resolve it and make it easier for members of our Armed Forces to exercise their vote. However, I resist the temptation to do that for this particular exercise for the reason I have articulated.

[Lord Wallace of Tankerness]

My Lords, this group of amendments has allowed us to look at a number of the practical, important issues which arise in the context of a referendum. As I indicated earlier, it is an opportunity for your Lordships to express views on this. Although we found consensus on a number of issues in the earlier debate, clearly on the issue of franchise there have been different views, to which I shall try to respond.

On a preliminary matter which I am not quite sure related to the independence referendum, the noble Lord, Lord Foulkes, raised a question on the so-called West Lothian commission, which is to look at the implications for the House of Commons of devolution. Its formal remit is to consider how the House of Commons might deal with legislation which affects only part of the United Kingdom following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The noble Lord asked about submitting evidence. I was not aware that it was not receiving evidence—I am not sure whether the noble Lord meant oral evidence or written evidence—but the commission that has been established is independent of government and I would be wary of trying to intervene. The commission should be free to undertake such work as it deems necessary to consider proposals for handling the parliamentary consequences of devolution.

A number of noble Lords—my noble friend Lord Steel and the noble Lords, Lord Watson and Lord Foulkes—raised the question of timing. The United Kingdom Government’s firm view is that the question of Scotland’s constitutional status should be resolved sooner rather than later. The continuing uncertainty about Scotland’s future is damaging to Scotland and until the issue is resolved that uncertainty will remain and, I suspect, grow. In our consultation paper we asked for views on the timing of the referendum and the majority of responses were in favour of holding it sooner than the Scottish Government’s proposal to hold it in the autumn of 2014. Recently, my right honourable friend the Secretary of State set out a timetable for a referendum to be held in September 2013. We believe that that is a practicable timetable and see no need to delay. That view has been expressed by others. CBI Scotland said:

“The timetable should certainly provide for sufficient facts and analysis to be made available to business and the wider public and for the issues involved to be fully considered but, on balance, we believe that the referendum can and should be held sooner than currently planned”.

By “currently planned”, I think it means the preferred date of the Scottish Government. There seems to be a general consensus in your Lordships’ House on this.

The amendment of my noble friend Lord Steel would ensure that any referendum on Scottish independence was administered by the Electoral Commission. A number of colleagues and noble Lords expressed their support for this and, again, I think there was widespread support for it. My noble friend Lord Selkirk of Douglas gave some practical examples of when he believed that the Electoral Commission would have been of considerable benefit. I am sure we are not calling now for a recount of the Lothian regional vote in 1999. History might have been different in so many ways if there had been a different outcome there.

The Government’s view is that it is right that the Electoral Commission should oversee the referendum. It is a well-established body, known to be credible, independent and politically impartial. As the noble Lord, Lord Browne, pointed out, two referendums in 2011 were overseen by the Electoral Commission without criticism. It has the experience and expertise required to oversee this referendum and can play a key role in ensuring that the referendum and its results are seen to be fair and decisive.

Previously, the Scottish Government suggested that they would create what they called a Scottish referendum commission to oversee the referendum, answerable only to the Scottish Parliament. As my noble friend Lord Steel indicated, it is not a particularly satisfactory position when one of the players nominates the referee. The United Kingdom Government believe it is unnecessary to create a new commission—undoubtedly, that would be done at additional cost—when the Electoral Commission is already in place and has demonstrated its capability. We are pleased that the Scottish Government now agree that the Electoral Commission should lead on the oversight arrangements for the referendum and we will continue to engage with the Scottish Government on this. Again, a number of responses to the consultation concurred with that.

[Lord Forsyth of Drumlean]

While my noble and learned friend has a drink, is this phrase of allowing the Electoral Commission to have “oversight” not weasel wording? Surely the Electoral Commission should be responsible for the overall conduct of the referendum campaign.

[Lord Forsyth of Drumlean]

Yes, including the question. I notice that in the Scottish Government’s consultation paper, which was then spun as involving the Electoral Commission, it was invited in as a kind of veneer of respectability. The Electoral Commission has to be the regulator. Is that use of “oversight” by my noble and learned friend weasel wording or does it mean what we all want it to mean?

[Lord Wallace of Tankerness]

My Lords, in our earlier debate on referendums, in response to an issue raised by the noble Lord, Lord Foulkes, I said that it is the Government’s view that the Electoral Commission should fulfil the same role as it has in relation to UK Parliament referendums, as set out in the Political Parties, Elections and Referendums Act 2000. Its role would be the same in reviewing the question. My noble friend Lord Caithness raised this. The Electoral Commission’s role is to advise and to oversee referendums. It is not appropriate for it to set the question and current legislation does not provide for it to do that. It is my understanding that the Electoral Commission would itself have concerns about doing that. The PPER Act 2000 sets out a clear role for the Electoral Commission that we believe should be respected for a referendum on independence: to review and report on the question. We believe that that is the right approach.

--- Later in debate ---

[Noble Lords]

Hear, hear.

[Lord Wallace of Tankerness]

From the reaction that the noble Baroness has had to that comment, it is clearly one that resonates across the House. I do not pretend that I have an answer to it, but she asked me to reflect on it and we certainly shall. I am not sure if it is practical but she makes an important point well, and it strikes a chord in the House.

I was going to make the point that I in no way underestimate the importance of the franchise, but it does not disqualify people from participation in the debate or the referendum. When the real debate comes, I sincerely hope that we will get contributions from other parts of the UK that have a view to express about how much they value our United Kingdom. I very much hope that Scots from the diaspora will express their views—maybe some that I do not agree with, but I am sure there will be many that I do—about how valuable over many years they and their families have found Scotland being part of the UK.

We believe that we should try to ensure consistency and transparency, which is why we have indicated our preference for a franchise based on the present one for the Scottish Parliament and local government. We will continue to seek agreement on that basis. With those assurances, I invite the noble Lord to withdraw his amendment.

[The Earl of Caithness]

My Lords, I am grateful for what the Minister said in reply to my amendment, which a number of noble Lords supported. I just wonder whether his mind is totally closed on the issue of allowing the Electoral Commission to set the question. A lot of us are still quite concerned about a Section 30 fudge on which we will have no say except a possible debate. A question could be negotiated behind closed doors in order to satisfy the Scottish Government, rather like the agreement over the past few days to which we were not party. We would have the same situation with a Section 30 order, and we would then have a question that we were not totally content with. Perhaps to avoid that situation, the Electoral Commission might be allowed to set the question. I know that the Minister had reservations about that but I hope that his mind is still open to being persuaded at a future time.

[Lord Wallace of Tankerness]

I hear what my noble friend says, but I ask him to reflect him on two points. First, it is my understanding that the Electoral Commission would not necessarily welcome that. Secondly, with regard to the point I was making about the franchise: if one seeks to do something different, what are the rules regarding the relationship between the Electoral Commission and the question under the Political Parties, Elections and Referendums Act 2000? If you try to do something different for a Scottish independence referendum, you could immediately open yourself up to a charge of trying to rig or manipulate it. The advantages of consistency in this area are important.

I am told that the Electoral Commission has not, and does not wish to, set a question as its role is properly to review the question and publish that review, which is important. I do not countenance any situation where the commission would not be engaged, nor where its view on a question would not be made public.

[Lord Steel of Aikwood]

My Lords, I beg leave to withdraw Amendment 93.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

95: After Clause 10, insert the following new Clause—
“Continued effect of provisions ceasing to be within legislative competence
(1) In section 30 of the 1998 Act (legislative competence: supplementary) after subsection (4) insert—
“(5) Subsection (6) applies where any alteration is made—
(a) to the matters which are reserved matters, or(b) to Schedule 4,(whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise).(6) Where the effect of the alteration is that a provision of an Act of the Scottish Parliament ceases to be within the legislative competence of the Parliament, the provision does not for that reason cease to have effect (unless an enactment provides otherwise).”
(2) After section 29(4) of that Act (legislative competence) insert—
“(5) Subsection (1) is subject to section 30(6).”
(3) In section 92 of that Act (Queen’s Printer for Scotland), after subsection (4A) (inserted by section 16) insert—
“(4B) If, following an alteration such as is mentioned in section 30(5)—
(a) subordinate legislation is made, confirmed or approved under a provision which continues to have effect by virtue of section 30(6), and(b) the making, confirmation or approval would be within devolved competence but for the alteration,the subordinate legislation is to be regarded for the purposes of this section as being made, confirmed or approved within devolved competence.””

[Lord Wallace of Tankerness]

My Lords, the reason for disagreeing Clause 10 is that this proposed new clause will replace it. The amendment will widen the scope of the provision contained in Close 10 so that the savings provision does not apply solely in situations where legislative competence has been transferred to the Scottish Parliament only temporarily under a Section 30 order. It will ensure that the savings provision will operate where any alterations are made to reserved matters or to Schedule 4 to the Scotland Act 1998, whether by the making, revocation or expiry of a Section 30 order or otherwise—for example, by amendment in primary legislation.

There is widespread recognition that clarity is required regarding the status of Acts of the Scottish Parliament in the event that legislative competence is reduced. The amendment has been tabled following comments from the previous Scotland Bill Committee and the Law Society of Scotland. It will ensure that Acts of the Scottish Parliament that have been validly made within the legislative competence that existed at the time do not cease to have effect purely because of changes to the boundaries of reserved and devolved matters. Such provisions would cease to have effect only if this was provided for in an enactment.

The amendment clarifies that provisions contained in an Act of the Scottish Parliament that are no longer within the legislative competence of the Scottish Parliament will not automatically fall following that alteration of competence. Therefore, no gaps in the law will be created as a result. This means that a positive decision will need to be made to repeal provisions in an Act of the Scottish Parliament. This could be done in the legislation providing for the re-reservation or in separate legislation passed by the UK Parliament. As a result of this amendment, a provision in an Act of the Scottish Parliament that was once within legislative competence, prior to an alteration in that competence, will not for that reason alone cease to have effect. It will cease to have effect only if an enactment provides otherwise.

The wording of the amendment is intended to clarify two things. First, the previous operation of that ASP and anything done under it, up to point of the alteration in legislative competence, is not affected. Secondly, any alteration in legislative competence does not affect the continued future operation of the ASP, including any powers exercisable under it. For example, it would ensure that any powers of Scottish Ministers under an Act of the Scottish Parliament to make subordinate legislation would continue to be exercisable by them notwithstanding the alteration of legislative competence.

Proposed new subsection (3) of the new provision makes a technical amendment to Section 92 of the Scotland Act 1998, “Queen’s Printer for Scotland”, in consequence of the addition of the provision in proposed new Section 30(6) of the Act. I hope that the Committee will agree that this is a sensible amendment, which will strengthen the provision that was originally contained in Clause 10. I beg to move.

[Lord Forsyth of Drumlean]

I do not want to detain the Committee, but what problem does the amendment seek to remedy? Has something arisen? Secondly, if we proceed with a Section 30 order on the referendum, would this enable the power to hold future referendums to be retained by the Scottish Parliament?

[Lord Wallace of Tankerness]

My Lords, on the second point, a noble Lord asked me earlier—it may have been my noble friend the Duke of Montrose—whether it would be possible to have a Section 30 order that applied to just one referendum. The answer is that that is precisely what we plan in our draft.

The issue that the amendment seeks to address is that for some powers it may be thought expedient or wise to give the Scottish Parliament a temporary extension of power. I think I am right in saying that such a power was granted under a Section 30 order following the case of Somerville. We seek to make it very clear that if the Scottish Parliament passes legislation—as indeed it did under that power—under a temporary transfer from reserved to devolved power, it does not automatically repeal any legislation that has been properly and competently enacted when the temporary transfer of power ends.

[Lord Boyd of Duncansby]

My Lords, my noble friend has suggested that as I have sat here all night, I should at least say something. It seems to me that the amendment puts the issue of competence beyond doubt. However, I am not wholly convinced that this is necessary because it seems to me that once you confer competence, the legislative provision that flows from it will always flow from it even if you subsequently take back the competence, as it is the point at which the competence is exercised which is important, not what happens subsequently. Nevertheless, I note what the Minister says. For our part, we are content that he has put the matter beyond doubt.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wallace of Tankerness Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Beecham]

My Lords, the amendment would bring consumer law back into scope. Consumer law does not simply cover small issues that perhaps citizens advice bureaux or other organisations could speedily resolve. It can relate to much more significant claims: for example, professional negligence claims against members of my profession, against the professions of other noble Lords in the Chamber at the moment—heaven forfend—or against those who have custody of their clients’ money in investment funds. I refer to people like Michael Brown, the well known donor to the Liberal Democrats, who managed to make off with £2.5 million of other people’s money. There is a range of cases for which legal advice and assistance is clearly very important.

In consulting on these matters, the Government made the obvious point that these cases are not of the same gravity as—to use a term that the noble Lord, Lord McNally, used earlier—issues of safety and liberty. That of course is true but does not take us very far. They can certainly affect people’s lives as well as their fortunes very substantially. A range of claims might be brought that would be entirely out of scope and where, even if conditional fee agreements were obtainable —as they might be—questions would then arise about success fees, premiums and the like.

It is incumbent on the Government to look again at the issue and acknowledge that, while generally these are not matters that threaten life and liberty, they can make a significant difference to a great many people in our society, and that there will often—though not always—be a requirement for legal advice and representation. In Committee, much was made of the funding that the Government had already announced, which was again foreshadowed tonight with reference to possible similar sums over the next two or three years. However, as my noble and learned friend Lord Goldsmith mentioned, many organisations are already facing significant cuts in their funding—particularly Citizens Advice, law centres and the like—at a time when demand for their services, even before the changes in the legal aid system come in, is already rising.

I therefore hope that the Minister will feel able to indicate a reconsideration of the position as of tonight or, failing that, will agree to take this away and bring it back at Third Reading in the hope that we can accommodate the very real needs of many people who face considerable financial and, potentially, other losses as a result of failure on the part of those with whom they contract to deliver what is expected of them. I beg to move.

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

My Lords, the noble Lord, Lord Beecham, has moved his amendment to make civil legal services available for consumer disputes. It will come as no surprise to him that in response to a similar amendment in Committee we explained, and I do not apologise for repeating it because it is at the core of the architecture of the Bill, that in developing our reforms we have focused legal aid on those who need it most and for the most serious cases in which it is justified.

I recognise that there will be some difficult cases—for example, consumer matters that are concerned with financial matters—but we nevertheless consider that their relative importance is lower compared with, for example, issues of safety and liberty. Issues of safety and liberty are of the highest importance. That is why, in having to make these kinds of decisions, we have removed legal aid from consumer disputes. Moreover, we also note that, particularly in this sphere, there are other sources of advice; for example, trading standards and Consumer Direct. There may be alternative non-court-based solutions in some cases through regulators and ombudsmen. I do not think they can be as lightly dismissed as sometimes they are. Any consumer matter that concerns alleged contravention of the Equality Act 2010 will be within scope.

As was indicated in an earlier debate, the Government will provide additional funding to the not-for-profit sector in the Budget, and it is often a sector that has a role to play in areas such as this. It will be made available within the current spending review period. I understand that the Cabinet Office review is expected to conclude shortly and will provide recommendations on proposals to secure the long-term sustainability of the sector. I hope that the House will allow this important work to reach its conclusion.

There is consistency in our responses. When lines have to be drawn and decisions taken about what should or should not be within scope, we believe that higher priority should be given to some of the areas I have indicated. In these circumstances, consumer matters do not fall within the area we believe should be within scope. On that basis, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I remain disappointed in that response. There is potentially a huge range of claims that might be made. Some of them are minimal and perfectly capable of being disposed of in the way the noble and learned Lord referred to. Other are clearly of a different order altogether. Negligence advice from a solicitor, accountant, architect or other professional person can be very costly to individuals who may not be able to afford litigation. Even if they recover using CFAs, they will potentially lose a significant slice of the amount they have already lost. I do not think that is just, and it again reinforces the impression that the Government are giving that they are content with, effectively, a two-tier system of justice from which many people will be excluded. It is most unfortunate, but clearly in the circumstances and in the light of the time, there is not much point in seeking to test the opinion of the House. Accordingly, I beg to leave to withdraw the amendment.

--- Later in debate ---

[Lord Bach]

Very briefly, we agree in principle with the noble Lord and his amendments. After today, the Bill will have Amendment 12 in it. That deals with welfare benefit appeals and is phrased in a rather different way from Amendments 22 and 78, although Amendment 22 is on the social entitlement chamber and talks about the same sort of appeals as the House passed in Amendment 12. I look forward to hearing what the Minister will say on that position and the points that the noble Lord, Lord Thomas of Gresford, has made.

[Lord Wallace of Tankerness]

My Lords, the amendment moved by my noble friend Lord Thomas of Gresford would seek to provide legal aid for all onward appeals on issues arising from a social entitlement chamber. My understanding is that that would be advice on matters of asylum support, criminal injuries compensation and welfare benefit. I am not able to judge offhand whether it covers the whole extent of what was passed earlier this evening by your Lordships but we are in the same area.

My first point is that the amendment would go beyond the existing scope of civil legal aid to the extent that it would allow legal aid for advocacy in the Upper Tribunal on welfare benefit, asylum support and criminal injury matters. We are restricting legal aid and I ask my noble friend to bear that in mind. It is the case that legal aid for legal representation has never been routinely available for the Upper Tribunal for matters of welfare benefit, asylum support or criminal injuries compensation. An estimate has been made that to do so could cost up to £7 million per year.

[Lord Thomas of Gresford]

Is that on the basis of an assessment of how many cases a judge would declare complex? I propose a filter for these cases; only those that are complex should go there.

[Lord Wallace of Tankerness]

That is the point I was about to make. It is possibly based on the majority of cases currently going to the Upper Tribunal. As my noble friend rightly points out, we perhaps do not know how many cases would be certified as complex. That is an unknown unknown. I think my noble friend gets the point I am trying to make: we do not know that.

My noble friend makes an important point that the complexity of those cases arising out of the social entitlement chamber would be one factor that could engage Article 6 and lead into the exceptional funding in Clause 9. That exceptional funding is intended to take account of Article 6 issues. As he indicated in moving his amendment, that would require taking into consideration the complexity of each individual case considered under Clause 9. He indicated that that could lead to a waste of resources and he asked what was lost were a judge to make the determination rather than a legal aid director. One possible response is that the director’s determination under Clause 9 is whether the case is such that the refusal of legal aid would be a breach. Clearly, each case would have to be determined on its individual merits.

We move on to bringing into scope cases which are certified to be of significant wider public interest. Under the current legal aid scheme, there is a rule that allows any excluded case other than a business case to be brought back into scope if it is of significant wider public interest. As I have indicated previously, the Government do not intend to include such a rule in the civil legal aid scheme created by the Bill.

My noble friend also made a point that I wish to reflect on. I think he referred to the Cart case in terms of judicial review. If one were to go down that route, where legal aid would be available, the balance would be in terms of costs as opposed to what he proposes, where there would be a possibility of certification of a case in the significant wider public interest.

Without being in a position to make any commitment as to the outcome, on the point that the noble Lord raised—as well as the point that he made that not all cases would necessarily qualify that went to the Upper Tribunal or beyond—I have discussed the issue with my noble friend Lord McNally and we would be willing to consider this further if the noble Lord will withdraw the amendment. However, I make it clear that I cannot guarantee that he will necessarily ultimately get the result that he wants. But he has raised matters that I want to reflect on and pursue further. I include the noble Lord, Lord Bach, in that. There are important legal issues at stake.

[Lord Thomas of Gresford]

I am most grateful to my noble friend for that reply. I ask him to add this point to his deliberation. If the judge who has tried the case and knows all the facts and circumstances certifies that it is complex, the case can go forward on its merits to the Upper Tribunal under what I am suggesting. If the judicial review procedure is followed, an application for leave will be made to the Upper Tribunal, so that whoever sits in the Upper Tribunal has to determine first of all whether leave can be granted in this particular case. It happens in criminal courts all the time that cases go forward on the basis of a certificate from the judge, from the Court of Appeal to the Supreme Court in particular. The particular judge is in so much better a position to decide whether this is a case that merits a certificate and whether the merits of the case are such that it should be given permission to go up. That is a far better situation than the one whereby the defeated applicant applies for leave for judicial review to a judge in the Upper Tribunal who has to spend his time considering the papers put in front of him. If the noble and learned Lord has any contact with members of the judiciary, he will know that one thing that they do not like doing is to wade through piles of applications for judicial review from scratch to try to determine whether there is a point worth arguing in the administrative court. So there is a practical side to it that I suggest he should take into consideration. I am grateful to him for his response and on that basis hope to have further discussion and, perhaps, return to the matter on Third Reading. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, this amendment gives me a sense of déjà vu. More than 30 years ago, I acted for a father whose three children were in effect abducted by his wife and removed to Scandinavia in flagrant breach of undertakings and a court order. The case was tried by a Mr Justice Faulks. I do not know whether he was any relation of the noble Lord, Lord Faulks, who is not now in his place. It was a tragic case; the father lost virtually all contact with his two daughters, although his son eventually returned of his own volition. It exemplifies the kind of family tragedy that can occur when one party flouts all legal responsibilities.

I congratulate the noble and learned Baroness on bringing these amendments forward. Since there is a sympathetic reaction from the Government, I hope that the Minister will undertake to bring this back at Third Reading to resolve the matter satisfactorily. It seems axiomatic that the same procedure should, as the noble and learned Baroness suggests, apply whether the abduction is outside the jurisdiction of the UK courts or within one of the three jurisdictions that obtain. It looks as though the Government are minded to accede to that. I very much hope that an indication can be given that this will be resolved at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as she has indicated, the amendments moved and spoken to by the noble and learned Baroness, Lady Butler-Sloss, concern legal aid for measures to prevent the unlawful removal of a child within the United Kingdom and for taking steps to remedy such a removal. They would add to similar existing legal provisions for legal aid to prevent and remedy the unlawful removal of children from the United Kingdom. It is important to stress that unauthorised removal from the United Kingdom is a crime, whereas, as has been acknowledged in this debate, one parent taking a child to another part of the United Kingdom without consent is not. Trying to navigate a foreign jurisdiction in a foreign language without a lawyer would also be considerably more difficult than trying to do something similar in the United Kingdom.

That said, the noble and learned Baroness has, as ever, made a powerful and persuasive case. We have indicated that in future people should, subject to various important exceptions, be able to deal with their family matters themselves, without the benefit of taxpayer-funded legal aid. However, I certainly recognise that if you cannot even find your child because they are in the hands of an ex-husband, ex-wife or estranged partner, it may seem impossible even to begin that process. The emotional stress on people in such situations can be immense. Therefore, we are sympathetic to the concerns of the noble and learned Baroness, particularly the proposals to make legal aid available for Section 33 and Section 34 orders under the Family Law Act 1986 —that is, the seek and find orders and the recovery orders.

Seek and find orders allow a court to compel someone who might reasonably know where a child is to tell the court. The court will then judge whether this information should be passed on to the left-behind parent. Obviously, if there are safety issues it might not be advisable to do so. Refusal to impart that information is treated as contempt. Thankfully, Section 34 orders are somewhat rarer, but they give the police powers to recover a child forcibly in emergency situations. As the noble and learned Baroness identified, we are not yet convinced that the associated prohibited steps and specific issue orders require funding. The same applies to registering an order made in one part of the United Kingdom in another part.

I fully accept that the noble and learned Baroness is not trying to find a backdoor entry into private law matters. However, our concern, and the reason we are not yet convinced about this, is that these orders get us much more into funding a family case as a whole, including by preventing relocation. The issue here is that many cases involving children are in fact arguments about where a parent with residence might reasonably live and the effect that will have on contact for the other parent. Therefore, when we talk about prevention in this context, that is the kind of situation we are talking about. I know that the noble and learned Baroness, from her vast experience, would see it as that. However, sometimes when members of the public talk about prevention orders, they have an image of stopping a child being bundled into the back of a car. That is sometimes the description conjured up by “domestic child abduction”.

If the noble and learned Baroness is willing to withdraw this amendment, the Government will table at Third Reading a similar amendment that covers Section 33 and Section 34 orders, for international abduction as well as domestic. I am happy for officials in the Ministry of Justice to continue discussions with the noble and learned Baroness, which I know have been ongoing, as she acknowledged, on the exact drafting of that amendment.

[Baroness Butler-Sloss]

I am very grateful to the Minister for what he has said, although it does not go quite as far as those who undertake these cases nowadays feel is necessary. I have had extensive experience of these cases as only High Court judges tried them in the past. I think that only High Court judges or deputy High Court judges try the international ones nowadays. That is an indication of the importance that is attached to these cases.

Given where the noble and learned Lord comes from, I have to say that in the past there have been real problems in getting a child back from Scotland who has been removed by a parent without the consent of the other parent. The process is not simple. I have not had a similar experience with Northern Ireland, but I am sure that these cases must arise there occasionally. As noble Lords know, those are different jurisdictions; that is the problem. I am very happy with where we have got so far, but I would like to get a little further. I am grateful for the opportunity to continue to discuss this matter not only with the noble and learned Lord but with his officials. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

48: Schedule 1, page 135, line 38, leave out “paragraph 15” and insert “paragraphs 1 to 5, 6, 8, 12, 15 and 16”

[Lord Wallace of Tankerness]

My Lords, as has been said several times, the Government’s intention is to retain legal aid for most judicial review cases, given the important role of this procedure in holding public authorities to account. Responding to concerns raised in Committee, not least by my noble friend Lord Carlile of Berriew, Amendment 48 puts beyond doubt that legal aid will be available for any judicial review concerning death, personal injury, damage to property and Criminal Injuries Compensation Authority payments.

Secondly, the amendment disapplies exclusions which prevent tort claims generally being funded under the Bill, so that where a claim for damages is made in the context of a judicial review, the grant of legal aid would cover the work associated with the damages aspect of the claim. Where a damages claim is brought separately from judicial review proceedings, legal aid would not be available unless the claim concerned abuse of a child or vulnerable adult, an abuse of a position of power, a significant human rights breach by a public authority or a sexual assault. That is again in accordance with our intention to focus limited resources on the highest priority cases.

Amendments 81 to 85 make it clear that the exclusions in paragraphs 2 to 5 and 8 of Part 2 of Schedule 1 are intended to exclude a claim in tort in respect of the matters set out in those paragraphs. I hope that that clarifies the position. There was a lack of clarity before, and I hope that the amendments address that. I beg to move.

Amendment 48 agreed.

Moved by

[Lord Wallace of Tankerness]

49: Schedule 1, page 136, line 4, leave out sub-paragraph (5) and insert—
“(5) The services described in sub-paragraph (1) do not include services provided in relation to judicial review in respect of an issue relating to immigration where—
(a) the same issue, or substantially the same issue, was the subject of a previous judicial review or an appeal to a court or tribunal,(b) on the determination of the previous judicial review or appeal (or, if there was more than one, the latest one), the court, tribunal or other person hearing the case found against the applicant or appellant on that issue, and(c) the services in relation to the new judicial review are provided before the end of the period of 1 year beginning with the day of that determination.”

[Lord Wallace of Tankerness]

My Lords, my noble friend Lord McNally has sent your Lordships details of a group of minor and technical amendments which the Government have tabled to Part 1 of the Bill. A copy of his letter has been placed in the Library for the convenience of the House. Amendments 49 to 57 are in that group. I beg to move.

Amendment 49 agreed.

Moved by

[Lord Wallace of Tankerness]

50: Schedule 1, page 136, line 12, leave out “a removal direction” and insert “removal directions”

--- Later in debate ---

[Lord Bach]

My Lords, we continue to support this theme of amendments. There were two in Committee moved by the noble and learned Baroness, Lady Butler-Sloss. We supported them then and described them as powerful amendments. Amendment 69 remains a powerful amendment. We look forward to hearing what the Minister has to say. We hope and expect him to be sympathetic.

[Lord Wallace of Tankerness]

My Lords, Amendment 69 intends to bring into the scope of legal aid damages and compensation claims made by victims of human trafficking in either the civil courts or employment tribunals. Echoing the words of the noble Lord, Lord Bach, and my noble friend Lady Hamwee, I have noted the powerful arguments put forward that exceptional funding was not sufficient to provide for legal aid in this area. It goes without saying that we are all agreed that trafficking is a heinous, cynical crime. The ability to bring damages claims against former so-called employers is an important tool to secure reparations for victims and to punish their exploiters. As has been said tonight, and as was highlighted in our debates on similar amendments in Committee, it also helps to discourage those who seek to exploit people for financial gain. We had always anticipated that legal aid would have been available under the exceptional funding scheme for these damages claims, as was indicated by my noble friend Lady Hamwee, where such cases met the test for exceptional funding under Clause 9 of the Bill.



On reflection, we recognise the risk that in some cases this will not be sufficient. My colleagues and I are very grateful to the noble and learned Baroness for her constructive discussions with the Lord Chancellor, in which she pointed out that what is typically required in these cases is advice and assistance in making the claim. Therefore, we agree in substance with the amendment and accept it in principle. However, as I think is anticipated by the noble and learned Baroness, for drafting reasons—not least around definitions—we cannot accept it verbatim. If the noble and learned Baroness withdraws the amendment, I can assure her that we will come back at Third Reading with a finalised amendment.

My noble friend Lady Hamwee asked whether victims of trafficking would get legal advice for other matters as well as for damages. For non-damages cases, they would have to apply for exceptional funding if legal aid was not available. However, the amendment that we discussed earlier this evening would cover legal help for trafficked victims in bringing damages claims in the employment tribunal, and both legal help and advocacy for damages claims in other civil courts where they relate to the experience of being trafficked.

It is important that we have addressed these matters. I thank the noble and learned Baroness for bringing them back to the House. I hope that, with my assurance, she will withdraw her amendment.

[Baroness Butler-Sloss]

I am very grateful to the noble and learned Lord for his very constructive and heart-warming words. It is only right that I should congratulate the Government on their strategy. The only point about strategy is its implementation, so I warn the noble and learned Lord that I shall continue to battle to implement the strategy, which is excellent in outline. However, this is a very good step forward. I look forward to further discussions with the noble and learned Lord and his team. In the mean time, I am very happy to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

70: Schedule 1, page 139, leave out line 20 and insert “because I was the victim of domestic violence”

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

73: Schedule 1, page 140, line 5, at end insert—
“Immigration: victims of domestic violence and residence cards25A (1) Civil legal services provided to an individual (“I”) in relation to a residence card application where I—
(a) has ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person,(b) is a family member who has retained the right of residence by virtue of satisfying the conditions in regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003) (“the 2006 Regulations”), and(c) has satisfied the condition in regulation 10(5)(d)(iv) of the 2006 Regulations on the ground that I or a family member of I was the victim of domestic violence while the marriage or civil partnership of the qualified person was subsisting.General exclusions(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.
Specific exclusion(3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on an application.
Definitions(4) In this paragraph—
“domestic violence” means threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other (within the meaning of section 62 of the Family Law Act 1996);
“family member” has the same meaning as in the 2006 Regulations (see regulations 7 and 9);
“family member who has retained the right of residence” has the same meaning as in the 2006 Regulations (see regulation 10);
“qualified person” has the same meaning as in the 2006 Regulations (see regulation 6);
“residence card application” means—
(a) an application for a residence card under regulation 17 of the 2006 Regulations, or (b) an application for a permanent residence card under regulation 18(2) of the 2006 Regulations.”

[Lord Wallace of Tankerness]

My Lords, I shall speak also to Amendment 92. This is another group of amendments on which my noble friend Lord McNally wrote to your Lordships. They are amendments of a minor and technical nature which the Government have tabled to Part 1 of the Bill. As I indicated when addressing earlier amendments, a copy of my noble friend’s letter has been placed in the Library of the House for the convenience of noble Lords. I beg to move.

Amendment 73 agreed.

Scotland: Independence

Lord Wallace of Tankerness Excerpts

Thursday 1st March 2012 Lords Chamber

[Lord Touhig]

To ask Her Majesty’s Government what discussions they have had with the First Minister of Wales on the issue of a referendum on Scottish independence.

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

My Lords, first, I am sure that noble Lords from other parts of the United Kingdom will wish to join me in extending to Welsh noble Lords our warmest greetings and best wishes on St David’s Day.

The Government have had no formal discussions with the Welsh Government on the issue of a referendum on Scottish independence.

[Lord Touhig]

My Lords, I thank the Minister for his St David’s Day greeting; it is most welcome to those of us who spend much of our working lives as missionaries in England.

The future of the United Kingdom is not a matter that can be left to negotiations between Her Majesty’s Government and the Scottish Government alone. Any change in the status of any of the nations of our union must affect us all. The people of Wales—and, indeed, the people of Northern Ireland—are not mere spectators in all this. Wales’s First Minister has proposed holding a constitutional convention so that we can redefine what a modern United Kingdom should look like. What do the Government think about that idea? If such a convention is held, should it not be held before the Scots hold their referendum?

[Lord Wallace of Tankerness]

My Lords, we are faced with the position where the Scottish Government have said that they wish to proceed with a referendum. We have serious doubts as to the legality of that; that is why we have proposed in our consultation document that we should engage with the Scottish Government to see whether we can get an appropriate order to allow such a referendum to take place on a legitimate basis.

However, it has been accepted by successive Administrations that no part of the United Kingdom should be forced to stay within the United Kingdom against its wishes. That is why, first and foremost, the Government wish to ensure that we succeed in winning the referendum for Scotland to remain part of the United Kingdom; but I wholly accept that any other arrangements for how powers may be distributed within our United Kingdom have implications for all parts of it. Therefore, the more we can discuss it among different parts of the United Kingdom, the better.

[Lord Roberts of Conwy]

My Lords, bearing in mind that it was this Government who set up the Silk commission to review the case for devolving fiscal powers to the National Assembly for Wales and further constitutional changes—with high expectations, I might say, of positive outcomes—is not the devolution process now becoming an open road to greater independence, which very few Welsh people want: in fact, only 7 per cent of them, according to the latest BBC/ICM poll?

[Lord Wallace of Tankerness]

I thank my noble friend for drawing attention to that poll, which shows that the wish for independence in Wales is very much a minority interest. He is right to draw attention to the Silk commission. The first part of it will look at the fiscal powers and whether there should be greater accountability in the way in which money is raised by the Welsh Government and the Welsh Parliament. Thereafter, it will look at the other powers. I cannot accept that devolution will lead to independence. Rather, I think it is important that, where people have their own domestic agenda, they should be able to order its priorities, be it in the Welsh Assembly, the Northern Ireland Assembly or the Scottish Parliament.

[Lord Wigley]

My Lords, is the Minister aware that an opinion poll published by the BBC today shows that some 80 per cent of the people of Wales support the independent NHS policy being followed by the Government of Wales, and does he accept that it is in the context of the substance of policy that these matters should be judged? Is he aware that the First Minister of Wales suggested at the British-Irish Council meeting of 13 January in Dublin that there might be a role for this second Chamber of Parliament in a quasi-federal United Kingdom? Can he say whether the Government have ruled out that possibility in the Bill that may be forthcoming in the next Session and whether the Long Title of that Bill could facilitate such a consideration?

[Lord Wallace of Tankerness]

My Lords, I have seen a number of the details of the poll published this morning by the BBC, which shows an overwhelming opposition to independence. As I indicated in answering questions on Tuesday, your Lordships’ House will continue to give the scrutiny that it has given since 1999 to non-devolved matters, and I expect that to be the case in any reformed House.

[Baroness Gale]

My Lords, the Secretary of State for Wales, the right honourable Cheryl Gillan, has indicated that she may look at proposals to align Welsh Assembly constituencies with the new parliamentary constituencies, with 30 constituency seats and 30 list seats for the Assembly instead of the 40 constituency seats and 20 lists seats at present. The noble and learned Lord, Lord Wallace of Tankerness, said in reply to a question from me in Grand Committee on 22 November 2011 that no change would be made without proper consultation. Is there a date for such a consultation and have any discussions been had with the First Minister, Carwyn Jones? Does he agree with me that any changes to the Assembly boundaries must be made with the full consent of the Welsh people, through a referendum, in keeping with the spirit of devolution?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I cannot give any date that the noble Baroness seeks but I reaffirm the important principle of consultation, which must not be solely with the Welsh First Minister and the Welsh Government. Issues such as parliamentary constituencies inevitably involve a range of issues and, not least, the different political parties.

[Lord German]

My Lords, does it not behove us all, if we want to remain part of the United Kingdom, to make the case for the United Kingdom? Perhaps I might say in the comradely spirit that existed last Saturday that the English need to be aware that saying to people from the rest of the United Kingdom, “Shove off and do your own thing” is not the right approach. Can we make the case for what it really means to be members of the United Kingdom? What would my noble and learned friend place at the top of his list of reasons for why we should remain part of the United Kingdom?

[Lord Wallace of Tankerness]

My Lords, I am sure that almost everyone in your Lordships’ House would wish to remain part of the United Kingdom, and it might be useful if we all thought about that question. I believe not only that we each benefit economically from belonging to a wholly integrated market of 60 million but that in celebrating and promoting a shared heritage and shared cultural, social and fundamental political values, and defending them effectively in an uncertain world, we are simply better off together.

[Lord Anderson of Swansea]

My Lords, yes, the polls show an overwhelming rejection of separatism, but does the Minister agree that if the union is to be fostered, and if we want to have a real case for it, more must be done in the spirit of solidarity to tackle the levels of comparative poverty in Wales and the poor health of the people of Wales? Greater investment must be made in infrastructure: for example, in the railway lines west of Cardiff to show that Wales does not end at Cardiff.

[Lord Wallace of Tankerness]

My Lords, something that came over strongly to those of us serving on the Calman commission was that one of the strengths of the United Kingdom was not only its pooling of resources but its ensuring that, where parts of the United Kingdom are doing less well, we are able to address them because we have the strength of being part of one united kingdom.

[The Lord Bishop of Hereford]

My Lords, reference has been made to health service policy in Wales. Will the Minister give an assurance that, as Welsh responsibility in areas such as that are looked at, greater attention will be paid to the implications for cross-border issues, where a divergence of policy—for example, on the health service, on farming or on so many other issues—can create real problems and potential conflicts for those who live on the border between England and Wales?

[Lord Wallace of Tankerness]

My Lords, I can say in response to the right reverend Prelate that from discussions with colleagues who are Peers or who represent constituencies in Wales, I am acutely aware that there are many cross-border issues, not least in the health service, with people living in certain parts of Wales going to hospitals in England. It is important that these cross-border issues are given proper attention, and I have no doubt that when the Silk commission goes into its second phase of looking at responsibilities, that will be an important consideration.