Devolution: Wales

Lord Wallace of Tankerness Excerpts

Tuesday 28th February 2012 Lords Chamber

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

My Lords, the National Assembly for Wales is now able to pass laws in all 20 devolved subjects. The Commission on Devolution in Wales—the Silk commission—is looking at how the Welsh Government can be made more accountable for what they spend and at any modifications to the present constitutional arrangements that would enable the Welsh devolution settlement to work more effectively.

[Lord Roberts of Llandudno]

I thank the Minister for his reply. With an increasing number of powers being devolved to the Assemblies in Wales and Northern Ireland and the Parliament in Scotland, what means are there to inform us of what decisions are taken at that level in Wales, Scotland or Northern Ireland? Moreover, with increasing devolution, what role does the Minister see for this House when it is composed of Members from Northern Ireland, Scotland, Wales and England?

[Lord Wallace of Tankerness]

My Lords, there are regular exchanges at official and ministerial level where information is given as to legislation passing through this Parliament which has relevance for Wales, Scotland and Northern Ireland, and there are close links the other way. With regard to parliamentary and assembly exchanges, the Calman commission, on which I sat, thought that it would be advantageous if there was a greater flow of information between parliaments and assemblies, but recognised that that would be a matter for the parliaments and assemblies and not for government. On the role of your Lordships' House in relation to Scotland, Wales and Northern Ireland, it clearly has a role in examining matters which in the case of Wales are non-devolved. We have done so since 1999 and I can imagine that we will continue to give it the scrutiny that we would expect of a revising Chamber.

[Lord Wigley]

My Lords, will the Minister accept that, whereas the outcome of the referendum almost a year ago to this week was quite clear-cut, the degree of devolution in various portfolios remains more unclear? In Wales, unlike Scotland, a portfolio is not devolved in its entirety but is dependent on interpretation of legislation. In order for people to understand better how the devolution settlement is working, will he arrange for this to be reviewed so that we might have more clear-cut devolution that is better understood by civil servants, by the press and media, and particularly by the electorate?

[Lord Wallace of Tankerness]

My Lords, I recall taking through your Lordships' House prior to the referendum an order in which we sought to try to bring together all the different parts which had been the subject matter of legislative competence orders over a number of years with the objective of achieving greater clarity. However, I note what the noble Lord said. The Silk commission perhaps gives an opportunity for some of these issues to be aired. Obviously, the Government will have to consider what that commission proposes in due course.

[Baroness Gale]

My Lords, when the Government established the Commission on Devolution in Wales—the so-called Silk commission—it was surprising to learn that reform of the Barnett formula was excluded from its remit, despite it being a flagship manifesto commitment of both coalition parties. Are the Government still committed to reform of the Barnett formula and, if so, when will it happen?

[Lord Wallace of Tankerness]

My Lords, I am sure that the noble Baroness will reflect that the Barnett formula has implications for all parts of the United Kingdom and therefore it would not have been appropriate for the Silk commission to look at it in relation to Wales in isolation. That is why the Calman commission, looking at Scottish devolution, did not feel able to look at the Barnett formula. This Government have indicated that, while there is a case for looking at the Barnett formula, it is important that we first bring the finances of the United Kingdom under control. That is a precondition for any movement on the Barnett formula. For noble Lords who are keen to talk about the Barnett formula, the noble Lord, Lord Barnett, has tabled an amendment to the Scotland Bill which I very much hope will be debated later this evening.

[Lord Roberts of Conwy]

My Lords, one of the remaining issues after more than a decade of devolution is the dire state of the Welsh economy after the Welsh Labour Government have ruled the country. They have got rid of the Welsh Development Agency, which has cost us a great deal, and one Welsh academic has described it as,

“the worst policy decision made in Wales in living memory”.

Does my noble and learned friend agree with that verdict?

[Lord Wallace of Tankerness]

My Lords, I am not in a position to agree with that, not having read that particular report. Clearly the economy of Wales is a matter in which your Lordships’ House has a legitimate interest, concerning, as it does, both devolved and non-devolved matters. I understand that on St David’s Day later this week the House of Commons will be debating Welsh affairs generally, and I strongly expect the economy to dominate and not least the Welsh Development Agency and the point made by my noble friend.

[Lord Elystan-Morgan]

Does the noble and learned Lord accept that, although as a constitutional precept this Westminster Parliament can, even in relation to any matter delegated to any one of the constituent parliaments, still legislate as it would wish in relation to any devolved area, in relation to Scotland some 14 years ago a convention was kindly agreed to the effect that this House would not dream of doing that unless so specifically requested by the Scottish Parliament? Particularly now in the context of the added powers enjoyed by Wales since the referendum, will such a convention be considered by Her Majesty’s Government in relation to Wales?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I think that the legislative consent Motion, originally described in Scotland as the Sewel convention after the noble Lord, Lord Sewel, who announced it, has worked well in practice. It is my understanding that if legislation which has implications for Wales is brought before your Lordships’ House and the House of Commons, it will be the subject of a similar convention. After each Queen’s Speech there is an obligation on the Secretary of State for Wales to consult the National Assembly for Wales about UK government proposals that may have an impact on Wales, not least since the further devolution on devolved matters.

[Lord Touhig]

My Lords, loath as I am to be in disagreement with my colleague on the Front Bench so far as concerns the Barnett formula, I say to the Minister, “Review the Barnett formula but don’t rush it”.

[Lord Wallace of Tankerness]

I hear the noble Lord and he may wish to make that point in the debate later.

[Lord Foulkes of Cumnock]

As regards the anomalies in relation to Welsh devolution and some of the problems arising from Scottish devolution, which we will be discussing at length later today, as well as the West Lothian question, on which the Government have set up a commission, would those matters not all be better dealt with if we were to look at the English dimension and devolution within or to England?

[Lord Wallace of Tankerness]

My Lords, I think that there has been some history of that, not least pioneered by the Government of whom the noble Lord was a member. I do not seem to remember that there was huge enthusiasm for it in the north-east of England, but it is still a very pertinent point and one which I am sure will be raised again in debates on this issue in the future.

[Baroness Randerson]

My Lords—

Scotland Bill

Lord Wallace of Tankerness Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Lyell]

I am most grateful to my noble friend Lord Selkirk for his amendment and strongly support it. I had the honour to be the apprentice of the Earl of Mansfield, who was not just Crown Estate commissioner for Scotland but first commissioner for the United Kingdom, which shows that Scotland is often best throughout the United Kingdom. I hope that what my noble friend has said in the course of this discussion will be taken on board and that my noble and learned friend will be able to accept this very wise piece of advice.

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

My Lords, I thank all noble Lords who have taken part in this debate. It has been an interesting and useful curtain-raiser to our debates today and important points have been made. I do not intend to go down the history-lesson route but I will deal with the point made by my noble friend Lord Forsyth. It is an opportunity to explain why different terminology and a different process of appointment have been used. Quite clearly, there is genuine need for clarification of that matter and I hope I will be able to do that.

I will first take the issue of the qualification of the person who will be appointed as the Scottish Crown Estate commissioner. I thank my noble friend Lord Selkirk for his amendment. When I was Member of Parliament for Orkney and Shetland, I had many dealings with the Crown Estate on issues of udal law, not least as to whether certain marina berths should have charges levied on them by the Crown Estate, or whether slipways passed over land that belonged to the Crown Estate or to the udal landowner. Some I won, some I did not. However, it indicates the breadth of the work the Crown Estate undertakes, including fish farming and marinas. Inshore and offshore renewable developments are, of course, becoming increasingly important within the area covered by the Crown Estate.

The position of the Crown Estate commissioner requires experience of operating at a senior board level as well as knowledge of one or more of the business sectors and activities in which the Crown Estate operates. These points were very forcibly made by my noble friend Lord Sanderson of Bowden and by the noble Lord, Lord Curry, who obviously speaks from his own experience of having been a Crown Estate commissioner.

The fact that my noble friend’s amendment relates specifically to land management and law would put an unnecessary restriction on who could be appointed. Of course, as we have already heard in this debate, there are areas of the Crown Estate’s business other than property or law with which it may well be an advantage for an appointee to have familiarity. The Bill provides for the person who should be appointed as a Scottish Crown Estate commissioner to have knowledge of Scotland and conditions there, but that person might in addition have a much broader range of experience and expertise that he or she can bring to the board. There might also already be commissioners on the board with expertise and experience in the areas specified by the amendment.

On the second leg of my noble friend’s amendment—the experience of the functions of the Crown Estate—I think it is fair to say, and I am sure the noble Lord, Lord Curry, will correct me if I am wrong, that few if any Crown Estate commissioners when appointed had direct experience of the functions of the Crown Estate under the 1961 Act. The right person for the job will need to have knowledge of Scotland and other relevant skills and experience. I hope the Committee will agree with me that it is important to achieve a balance of appropriate expertise on the Crown Estate board without placing undue restrictions or stipulations that could well rule out people who might otherwise be suitable candidates. I certainly think that the spirit of my noble friend’s amendment is in seeking to ensure that those bits of experience were brought to bear, but I hope he recognises that it will be impossible through the appointments process to have regard to other fields of experience as well if we put on restrictions.

[Lord Foulkes of Cumnock]

The Minister mentioned the appointments process, but is there a clear understanding or requirement that the process must be carried out according to the principles of public appointments throughout the United Kingdom? I know that there are growing fears in Scotland, because of the dominance of the First Minister and the way in which he seeks to impose his views on institutions and organisations, that it is vital that there is a properly constituted appointments process for all public appointments.

[Lord Wallace of Tankerness]

I certainly believe that there should be transparency in the appointments process. Of course, we will come on to the actual mode of appointment of the Scottish Crown Estate commissioner, which would involve consultation with Scottish Ministers. It is fair to explain why, in terms of nomenclature and mode of appointment, we have different arrangements for the Crown Estate commissioner as opposed to BBC Trust members, for example.

[Lord Forsyth of Drumlean]

I should say in support of the noble Lord, Lord Foulkes, that I think he was asking for rather more than that. I think he was asking for an assurance that the appointment would be subject to the normal Nolan rules and procedures, not just transparency.

[Lord Wallace of Tankerness]

I give way to the noble Lord, who may be able to shed light on this.

[Lord Curry of Kirkharle]

As the first Crown Estate commissioner who will be appointed under Nolan rules, I can say that those rules apply absolutely to the appointments to the Crown Estate. It is a very open and transparent process and, in Scotland, an agency would be used and it would be publicly advertised to try to attract the best people to that post. If there are those who are considered appropriate, the agency would try to approach and encourage those with suitable skills to apply for the position.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for that explanation. Indeed, the commissioners are appointed under the Office for the Commissioner for Public Appointments code. I hope that that gives the assurance sought by the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth—but maybe not.

[Lord Foulkes of Cumnock]

Can we have assurances that, after the Bill is enacted, they will continue to be appointed under the Nolan code? A lot of us fear—and this applies to the Crown Estate commissioner and even more to the BBC Trust representative—that if there is any undue political interference in that appointment, a lot of people in Scotland would have grave concern.

[Lord Wallace of Tankerness]

My Lords, there is no intention to change the manner of appointments under the Office of Public Appointments code. However, I will come on to talk about the consultation process that is due to take place, which by its very nature, as it is between the Chancellor of the Exchequer and the Scottish Ministers, will have a political dimension to it. One of the purposes of appointments under the Office of Public Appointments code is to ensure that there is indeed transparency and open competition and to achieve, as well, a balance of skills and backgrounds and avoid any potential conflicts of interest.

The amendment would change “Scottish Crown Estate Commissioner” to,

“Crown Estate Commissioner for Scotland”.

Perhaps I may explain to my noble friend that “Scottish” is not intended to qualify “Crown”, or indeed to qualify the two words “Crown Estate”, but to qualify the three words “Crown Estate Commissioner”. There are Crown Estate commissioners and therefore “Scottish” is the adjective to be applied to them. Unless we put commas in, I am not quite sure how we could make it clearer than that.

[Lord Maclennan of Rogart]

But the problem about “Scottish” being used as an adjective to qualify three words, or two words, is that it is not at all clear. It is extremely ambiguous as to whether the individual has to be Scottish and, if so, what definition is being applied. I think, for example, of the Duke of Atholl, who might be said to be Scottish but who spends practically no time in Scotland. Admittedly, his knowledge of Scotland may be quite considerable, but what does Scottish mean? I remember having a discussion about this with the Lord Lyon when I was gazetted. He claimed that I was Scottish because I had a Scottish name. Frankly, this is not sufficiently clear and the proposed amendment is much clearer.

[Lord Wallace of Tankerness]

My Lords, the position is that it must be a person who knows about conditions in Scotland as they relate to the functions of the commissioners but it does not say that the person has to be of Scottish ancestry or indeed has to have a Scottish name. As we have already discussed and debated, they may have a number of other qualities and it should not be restricted simply to a knowledge of land management or the law. If we were to start to pin it down more than that, we would start to get into difficulties as we might be excluding people who have much more to offer and who have a lot of potential. Clearly, my noble friend is not satisfied, but if he has a better wording—

[Lord Forsyth of Drumlean]

I am a seeker after truth here, but the intervention of my noble friend illustrates the absurdity of the wording. It never occurred to me that “Scottish” would apply to the commissioner. What is being proposed by the noble Lord, Lord Browne, which is,

“Crown Estate Commissioner for Scotland”,

gives absolute clarity that this is the person who will be responsible for Scotland in the Crown Estate. My concern related to the fact that it was suggesting that it was the Scottish Crown Estate whereas my noble friend thinks it might be the Scottish commissioner. Therefore, we have in this debate illustrated why the noble Lord, Lord Browne, is absolutely right. I hope that my noble and learned friend will accept his amendment.

[Lord Wallace of Tankerness]

I am sorry to disappoint my noble friend but the problem with,

“Crown Estate Commissioner for Scotland”,

is that it would suggest that the Crown Estate commissioner’s role was restricted to Scotland. That is not the case. The person is expected to play a part in the board as a whole and the person's responsibility should not be physically restricted to Scotland. That is why we believe that to use the,

“Crown Estate Commissioner for Scotland”,

would restrict the role which that person could play on the board. That would be a very unfortunate thing to do. As we already heard, some of the previous Crown Estate commissioners who had a Scottish remit have gone on to be the first Crown Estate commissioner. It would be very disappointing indeed if we were to use a terminology that suggested that this person could not actually contribute to the work of the board when it related to matters outwith Scotland—or furth of Scotland, if I can use that expression.

[Lord Forsyth of Drumlean]

If my noble and learned friend will allow me, if that argument stands then how have we managed to get away with the present incumbent being called the Scottish commissioner?

[Lord Wallace of Tankerness]

I am not sure that we are getting away with it. I am actually trying to propose that it is the commissioner who will have knowledge about conditions in Scotland. There is a distinction, if one chooses to reflect for a moment—

[Lord Maxton]

If you follow the logic of the argument that the noble and learned Lord has just put, it implies that the representative for Scotland on the board of the BBC could contribute only if the discussion was about Scotland. That is nonsense and we all know it.

[Lord Wallace of Tankerness]

My Lords, I shall explain. The BBC Trust is constituted in a very different way and using the expression “the BBC trustee for Scotland” makes sense in that context. The amendment would not affect the appointments process—

[Lord Browne of Ladyton]

I am grateful to the noble and learned Lord the Advocate-General for Scotland for giving way. When I came into the Chamber of your Lordships’ House today, the Advocate-General for Scotland was answering a Question about Wales.

[Lord Wallace of Tankerness]

Because I have been asked to answer to your Lordships' House on matters relating to the Wales Office, as indeed I am asked to answer on matters relating to the Scotland Office, although I am not a Scotland Office Minister, and on matters relating to the Attorney-General’s Office as well. It would be unfortunate if it were suggested that the Crown Estate commissioner for Scotland was only for Scotland and did not have responsibilities. To answer the noble Lord’s point, I do not exercise any functions as Advocate-General for England because it does not have an Advocate-General.

[Lord Sewel]

Would a way out be to change it to the “Crown Estate Commissioner from Scotland”?

[Lord Wallace of Tankerness]

For the reasons given by my noble friend Lord Maclennan of Rogart, the Duke of Atholl may not actually have come from Scotland but may have had a lot to contribute. If someone has a bright idea that squares all these circles, I would be interested to hear from them.

[Lady Saltoun of Abernethy]

My Lords, would perhaps “Crown Estate Commissioner with special responsibility for Scotland” solve all the problems?

[Lord Wallace of Tankerness]

The noble Lady’s suggestion certainly sounds much more promising. It could mean that we were not putting an artificial restriction on the role that that person could play on the board as a whole. As other noble Lords have indicated in this debate, the contribution made by the Crown Estate commissioner who currently has responsibilities of a Scottish nature has been very important to the overall working of the board. If we were to limit it by territory, there are parts of the United Kingdom where the Crown Estate does not necessarily have any activity and therefore it would become very unfortunate. I shall reflect on what the noble Lady has said. It was a helpful suggestion that reflects the fact that the person ought to have a knowledge of Scotland and be able to make a contribution on it, but they should also have a broader expertise that they can bring to the work of the board. That is what we are seeking to achieve.

[Lord Forsyth of Drumlean]

I apologise for interrupting my noble and learned friend so frequently, but his argument needs a bit of shoring up. As I understand it, the argument is that if the Crown Estate commissioner were the Crown Estate commissioner for Scotland, he would not be able to participate on the board because he would appear to be concerned solely with Scottish interests. Can I take it, then, that the Government are planning to change the name of the Secretary of State for Scotland? On my noble and learned friend’s argument, that would imply that the Secretary of State for Scotland could not participate in Cabinet on matters that were across the range. That is an absurd argument, and my noble and learned friend might at least indicate that he will go away and think about it.

[Lord Wallace of Tankerness]

I am grateful to my noble friend for the shoring up. The very fact that we have had this debate on the wording suggests that if we had proposed something else, I can imagine that he would have been one of those saying, “Of course, you mean that this person can make a contribution only in respect of Scotland and that is not acceptable as that person needs to have a wider remit”. As I indicated to the noble Lady, Lady Saltoun, her suggestion is worthy of further consideration and I shall consider it. If it answers the key point, which is that the person should have knowledge of Scotland and should not be restricted in terms of their qualifications—the broad totality of what is required for the board should be a factor in that person’s appointment, but the person might also have a special responsibility for Scotland or particular interests there—then that might well address the need without being unduly restrictive or indeed giving a misleading description of what that person’s role would be. I thank the noble Lady for that suggestion, to which I will most certainly give consideration.

Because of that wider responsibility, it is important that the appointment of all commissioners should be made by the sponsoring Minister, in this case the Chancellor of the Exchequer. I reassure noble Lords that he will make a recommendation for the appointment of this particular commissioner only after consulting Scottish Ministers and listening carefully to what they say. That appropriately balances the need for both a Scottish interest and a UK-wide perspective on the appointment process.

There is particular concern over why there has been a different process for that appointment from that for the Scottish member of the BBC Trust. The BBC Trust has a different constitution from the Crown Estate. Under its charter, the BBC has obligations to broadcast to all parts of the United Kingdom and to have a member of its trust for each of the nations that make up the United Kingdom. That is very distinct from the position of the Crown Estate, which has no such requirements. Indeed, as I indicated a moment ago, it does not even have to have a presence in any particular part of the United Kingdom.

The appointment of all Crown Estate commissioners is by Her Majesty on the recommendation of the Chancellor, reflecting the UK-wide responsibility of every commissioner. The UK Government will still need to discuss the Scottish appointments of both organisations with Scottish Ministers to ensure that the best people to represent Scottish interests are appointed.

The noble Lord, Lord Browne, asked about the status of the Crown Estate in the Bill. It is certainly the Government’s intention to consider the report of the Scottish Affairs Committee alongside the request that was made by the Scottish Government for further powers in relation to the Crown Estate. The Government believe that the Crown Estate operating on a UK-wide basis offers the best value across the whole of the United Kingdom, but we recognise the role that the Crown Estate plays in local communities and wish to work with it to ensure that it operates most effectively with them.

Particular to that is the coastal communities fund, which was mentioned by my noble friend Lord Selkirk. The Chief Secretary to the Treasury announced the establishment of that fund, which will be financed by the Government through the allocation of funding equivalent to 50 per cent of the revenue from the Crown Estate’s marine activities. It is linked to revenue that is raised by the Crown Estate’s marine activities each year and the funding will be available on a bid basis. The Government will welcome bids from charities, businesses, social enterprises and local organisations. In that way, we can build a stronger link between the activities of the Crown Estate, particularly in coastal communities, including those that are affected by such activities. It is a very positive step, which recognises the role of the Crown Estate.

I have indicated that I will certainly give further consideration to nomenclature and thank the noble Lady for her helpful suggestion. However, I have also indicated that there is a distinction between the constitution of the Crown Estate on the one hand and that of the BBC Trust on another. The latter has a specific requirement to serve specific parts of the United Kingdom, which is why not only the nomenclature but the mode of appointment is different. On that basis, I urge the noble Lord to withdraw his amendment.

[Lord Browne of Ladyton]

I am very grateful to all noble Lords who have taken part in what proved to be a much more interesting debate than I expected. I made clear in my introductory remarks that these are probing amendments, which implied that I had no intention of dividing the House. Having listened to the argument, I am severely tempted to do so because it may turn out to be the high point of my career in the House of Lords but I will resist the temptation.

I am grateful to the noble Lord, Lord Forsyth of Drumlean, who immediately got the point that underpinned the argument about nomenclature. However, I agree with the noble and learned Lord, Lord Wallace of Tankerness: I always thought that the adjective qualified the “Crown Estate” commissioner, rather than “Crown”, which is exactly what led to the confusion that has been apparent in the debate. I have to say that I am far from totally persuaded that,

“Crown Estate Commissioner for Scotland”,

bears the narrow interpretation or function that the noble and learned Lord has attributed to it. Try as I might to apply that argument consistently to many other titles, at least one of which I have held as a former Secretary of State for Scotland, it did not seem to me to stand the test of that destructive analysis.

However, I am pleased that the noble and learned Lord has, on behalf of the Government, indicated that he is prepared to take away the issue of nomenclature and think about it. There needs to be clarity of language in the politics of Scotland. We may sometimes misinterpret and play with words for the purposes of debate but people in Scotland use these words very carefully. I have learnt in my political career that where there are strong divisions of opinion—for example, in Northern Ireland—vocabulary and phraseology matter to people and are used in particular ways. Therefore, I am grateful to the noble and learned Lord for agreeing to take this issue away.

I am persuaded by the noble and learned Lord’s explanation of the reason for the different phraseology as regards the process of identification, selection and appointment. I was not aware of that difference and had not uncovered it in my researches. I am grateful to all noble Lords, and particularly to the noble Lord, Lord Selkirk of Douglas, for tabling an amendment, the style of which may have been influenced by one of my colleagues. That was helpful as it gave the noble and learned Lord the opportunity to put on the record information about the appointments process which will benefit that process and the openness of government. This has been a worthwhile debate. As usual with this Bill, issues which are apparently comparatively straightforward turn out to be interesting and educational. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I speak only because of my support for a previous amendment that was withdrawn, and I shall explain that position. As the noble Lord, Lord Selkirk of Douglas, explained, the effect of the amendment is to impose upon the Home Secretary an obligation to consult,

“with such persons as he or she considers appropriate”—

I suppose in this case it is “she”—when making regulations under Section 10 of the Misuse of Drugs Act but, peculiarly, only when such regulations apply to Scotland.

At first, I was attracted to the idea of a statutory requirement to consult. I was so attracted that I and my noble and learned friend sought to move a complementary amendment imposing a similar obligation on Scottish Ministers in the exercise of the new powers relating to licensing that they will enjoy when the Bill in enacted. However, after more detailed research, I have come to the conclusion that the imposition of such an obligation is not necessary in either case, which is why I have withdrawn from the Marshalled List the amendment that stood in my name and that of my noble friends.

I will not detain the House further, but the reason for that is because my research has revealed an extensive commitment to consultation by the UK and Scottish Governments and the Scottish Parliament that it would appear has been rigorously observed over a long period. As noble Lords would probably agree, whether voluntarily or by practice that does not require regulation or legislation, good practice can be developed and it is best left that way. That is my view but I shall leave the noble and learned Lord, Lord Wallace, to explain the detail.

[Lord Wallace of Tankerness]

My Lords, Clause 23 gives Scottish Ministers the power to license Scottish doctors to prescribe three controlled drugs—cocaine, diamorphine and dipipanone—for the treatment of addiction. The Calman commission recommended that responsibility for the licensing of controlled substances used in the treatment of addiction should be devolved to Scottish Ministers as part of their responsibility for health and well-being. The UK Government consider that Scottish Ministers are best placed to consider the particular circumstances in Scotland when deciding which doctors should have the authority to prescribe or administer the three controlled drugs used in the treatment of addiction. That relatively narrow devolution is set out in Clause 23.

I am grateful to my noble friend Lord Selkirk for his interest in this clause. As I have indicated, the Government certainly want to ensure that the Scottish Government have the necessary powers and abilities to tackle drug misuse effectively. That is why we have introduced Clause 23. However, it is perhaps important to indicate that while Scottish Ministers can consider the particular circumstances in Scotland when deciding which doctors based in Scotland should assume the responsibility to prescribe or administer specific drugs, they do so pursuant to regulations made under the Misuse of Drugs Act 1971 by the Secretary of State—the Home Secretary.

My noble friend’s amendment would require the Secretary of State to consult the appropriate persons before such regulations were made. The power to make regulations and the responsibility for the form of those regulations is reserved to the Secretary of State. The Secretary of State is already required by statute to consult the Advisory Council on the Misuse of Drugs before making regulations made under the 1971 Act. As a matter of good practice, the Secretary of State will consult key partners, and often the public, before implementing changes to regulations made under the 1971 Act. The Home Office has recently completed a three-month public consultation on proposed changes to, and the consolidation of, the Misuse of Drugs Regulations 2001. I am afraid that I cannot tell my noble friend Lord Maclennan whether NICE was consulted but, as I can ascertain, that would seem to be one of the bodies that might have been consulted. In the context of the consultation, officials from the department met their counterparts from the Scottish Government to discuss the proposals.

The Bill is devolving the licensing function to Scottish Ministers, and they will consult whoever they think appropriate while exercising that function to license doctors in Scotland. The making of the regulations remains reserved to the United Kingdom and the Home Secretary and I respectfully ask my noble friend to withdraw his amendment. I am sure that this point will have been noted by others, not just in the UK Government but by Ministers in the Scottish Government.

[Lord Selkirk of Douglas]

I thank my noble and learned friend Lord Wallace of Tankerness very much for his reassurances and I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Boyd of Duncansby]

The noble and learned Lord threw me that one and I will just take it up. It is true that there are a whole range of United Kingdom statutes that nevertheless require different evidential standards on both sides of the border. There is the Misuse of Drugs Act, for example, where corroboration would be required in relation to those offences that were prosecuted in Scotland but not—I think I am right in saying—in England and Wales. The same, of course, is true of the Road Traffic Act. If I may say so, that possibly just reinforces the point that different jurisdictions will have different rules of evidence and in theory, or at least in principle, there is nothing to stop them having different penalties and limits for particular offences.

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have taken part in this debate, which has given rise to a number of important issues. I share with the noble and learned Lord, Lord Boyd of Duncansby, his analysis of how the Calman commission went about its work. My noble friend the Duke of Montrose suggested that we were trying to deliver what the Scottish Executive wanted us to. If only the Scottish Executive had made any connection with the Calman commission—they studiously did not give us any evidence or indication of what they wished—their engagement might have been productive.

As the noble and learned Lord, Lord Boyd, indicated, this was done on the basis of evidence. It was recognised by the commission that there are already different speed limits; there are already powers to set speed limits on local authority roads devolved to local highway authorities through road traffic regulation orders. They are free to use their knowledge and assessment of local roads and may set different speed limits of 20, 30, 40, 50 or 60 miles per hour where they think it appropriate.

There was a view on drink-driving that it was part of criminal law, which is already devolved—but perhaps more importantly there are serious alcohol abuse issues in Scotland. I do not think that anyone is running away from them. The view was that this might be one other measure that could be part of how alcohol abuse could be tackled in Scotland.

Before we get on to some of the more specific issues on speeding and drink-driving, I shall take up the important points that have been raised by my noble friends the Duke of Montrose and Lord Younger as well as the noble and learned Lord, Lord Boyd, on the highway code and the driving test. The amendments to which they spoke seek to ensure that provisions of the highway code reflect the content of regulations made by the Scottish Ministers on speed limits and the drink-drive limit under the powers devolved to them in the Bill, assuming that those powers are actually used and changes made.

I fully agree that the highway code should reflect any changes made as a result of the powers being devolved, but it is important to note that there is no other legislation on the content of the code, either in the Road Traffic Act 1930 or in the supplementary provisions in Section 38 of the Road Traffic Act 1988. It would be disproportionate if the only specific statutory requirement on the content of the code were the few provisions in the Scotland Bill when there is no other such requirement to include any specific items of English, Scottish or Great Britain legislation. The code provides guidance, but it is not a comprehensive description of all road traffic legislation. However, I assure my noble friends that the mechanism exists to ensure that the highway code is accurately and adequately updated. It was referred to by my noble friend the Duke of Montrose that Section 38(2) of the 1988 Act gives the Secretary of State the power from time to time to revise the code by revoking, varying, amending or adding to the provisions in the code in such manner as he or she thinks fit.

Section 38(3) places the Secretary of State under a duty to lay proposed alterations to the code, other than those that are merely consequential on the passing of an amendment or repeal of provisions, before both Houses of Parliament at least 40 days before she proposes to make the changes.

Under Section 38(4), if the House resolves that the proposed alteration should not be made, the Secretary of State must not make the proposed revision to the code. Perhaps significantly, Section 38(5) of the 1988 Act states:

“Before revising the Highway Code … the Secretary of State must consult with such representative organisations as he thinks fit”.

That would include the Scottish Government as was the case during the last major revision in 2005 to 2007.

[Lord Forsyth of Drumlean]

I am sorry, I am rather confused. Which Secretary of State are we talking about here? Is it the Secretary of State for Transport?

[Lord Wallace of Tankerness]

Yes.

[Lord Forsyth of Drumlean]

So the proposition is that the duty lies on the Secretary of State for Transport to make amendments to the Highway Code, which may have been made by the Scottish Parliament.

[Lord Wallace of Tankerness]

Yes, it is the Secretary of State for Transport—I hope that I said “she”—and that would be the case. There are regular revisions of the Highway Code. As I might have said or was about to say, Scottish Ministers were consulted during the last revision and it is intended that they will continue to be consulted.

It would not be helpful to have two separate editions of the Highway Code. I think I am right in saying that one contributor to the debate strongly urged that we should not have a tartan edition of it as well. It was the noble and learned Lord, Lord Boyd of Duncansby. There should be one edition of the Highway Code, but of course it should reflect the differences that are there, and there is indeed a mechanism for doing that. The Government are therefore of the view that an amendment providing for an update to the Highway Code in the Scotland Bill is unnecessary.

Again, with regard to driving tests and the content of regulations, changes made to speed limits are somewhat parallel. Section 195 of the Road Traffic Act 1988 already requires consultation with representative organisations prior to making regulations relating to the driving test. This would include the Scottish Government. I understand the point that questions in the driving theory test about speed limits and drink-drive limits should reflect any new Scottish limits. As with the Highway Code, the driving theory test is regularly updated and significant changes to road traffic legislation can be included. Like the Highway Code, currently the content of the test is not a matter for legislation. To start adding specific requirements as to what the test must reflect, which may be subject to change in the future through primary legislation, would be inappropriate.

Nevertheless, I accept that important points have been made about driver awareness of any changes across the United Kingdom. To that end, I confirm that it is standard practice for the Scottish Government to be consulted when changes are proposed to the driving test. The theory elements of British driving assessments are already amended to reflect legal changes with substantial effects on what is covered in the assessments. I confirm that a change to the national road speed limit or the drink-drive limit, whether it were across the remainder of Great Britain after the transfer of power or in Scotland, would be such a change and would be reflected.

[Lord Maxton]

I have one small question. I take the point about local authorities imposing speed limits as they wish, but motorways of course come under the Highways Agency. If I am right, and if there is therefore a variation in a motorway speed limit, as there can be—there is, for instance, on the very good new M74 through Glasgow, where a 60 limit goes down to a 50 mile an hour limit—who imposes that? Who is consulted, and who is putting that speed limit on?

[Lord Wallace of Tankerness]

My Lords, motorway maintenance, for example, is certainly devolved to the Scottish Government. I rather suspect that the motorway speed limit is set under UK legislation. If I am wrong, I will either clarify it before the end of this debate or write to the noble Lord, either to confirm or to clarify. I certainly know that the maintenance of the motorway network is a responsibility of the Scottish Administration.

The amendment which noble Lords opposite also propose would require the Scottish Ministers and the Secretary of State to jointly make regulations governing the enforcement of the alcohol limit for driving if the limits in Scotland and England differ.

[Lord Forsyth of Drumlean]

Before we leave the Highway Code, let us say that this legislation has gone ahead and, for the sake of argument, that the Scottish Parliament has decided to make the speed limit 60 miles an hour rather than 70. If I am a youngster taking my driving test in Hampshire and am asked what the speed limit is on country roads and I say, “70 miles an hour”, will I pass the test or do I have to say, “It is 70 miles an hour in England and 60 miles an hour in Scotland.”? Listening to him, I do not know how my noble and learned friend will answer that question. I would like to think that the answer is that you have to give both, but how will that youngster know that and what will the mechanism be by which this will be communicated?

[Lord Wallace of Tankerness]

I think the answer is that the noble Lord would fail the test, because in fact it is 60 miles an hour in England. It is 70 miles an hour only on motorways, not on country roads, so with all due respect he might actually have found that he failed the test regardless of whether the country road is in Scotland or England, but I take the more general point that he was making.

[Lord Forsyth of Drumlean]

What is the answer?

[Lord Wallace of Tankerness]

The answer is that it would be in the Highway Code and the question would stipulate whether it meant the speed for motorways in Scotland or in England. These are not insuperable problems. This reminds me of the days of the Calman commission when some of these issues were being teased out. I thought that if, prior to the union between Scotland and England, there had been no difference in the law on marriage with consent and someone had suggested that in Scotland you could marry without your parents’ consent at 16, people like the noble Lord’s ancestors would have stood up and said, “What about Gretna Green? People will be flooding to Gretna Green to get married!”. Well, so they did, and the heavens did not fall in and the union stayed together; indeed, it has been very good for tourism in that part of the south of Scotland. You can pick up these little points and tease away at them, but they are not going to end the union. The union allows for these differences if they are thought proper and appropriate.

[Lord Forsyth of Drumlean]

This is all very amusing, and I take the point that I should have said dual carriageways—motorways, rather—with regard to the speed limit, but amid all that bluster my noble and learned friend gave the answer: it would be in the Highway Code. How will it get into the Highway Code if my noble and learned friend does not accept these amendments? Are we relying on the Secretary of State for Transport finding out what is going on in the Scottish Parliament and communicating that? How will this be achieved?

[Lord Wallace of Tankerness]

My Lords, my noble friend is building a mountain out of a molehill. These matters are not exactly going to be slipped under the carpet. As I have indicated, Scottish Ministers were fully consulted in the most recent consultation on the revision of the Highway Code, and there is no reason to suggest that that would not happen again. Indeed, there might be even better reasons why that should happen if these powers are devolved. In the course of these debates my noble friend has put his finger on a number of important points, but I sometimes think that he is trying to make difficulties where in practice none would exist. A young person, or indeed an older person, who has not passed their driving test has to learn the Highway Code to take the theory test, and there are a whole host of questions to learn. Reserved matters change, and that is reflected subsequently in the Highway Code, but people are expected to be prepared for the test that they are about to sit.

I pick up my noble friend Lord Steel’s point on people crossing borders. My noble friend Lord Caithness said that he had driven through three countries in Europe where the speed limits changed. I recall driving through different states in the United States where speed limits changed. It was picked up that we are talking not about main roads—the M6 or the M74—but about country roads that could cross borders. I suspect that the same applies to boundaries in some other countries as well. There is certainly a boundary between the Republic of Ireland and Northern Ireland, and matters are resolved there, just as when you have local speed limits.

I can think of one particular local speed limit on the west side of Shetland. I never understood why there was a 40 mile an hour limit there, in the middle of what was otherwise a 60 mile an hour limit, but you observed it, or tried to, and then when you passed the de-restriction sign you went back up to 60. It did not actually cause any practical difficulties. You can have such a variety of speed limits in local areas and around schools in built-up areas. The limit could be 20 miles an hour, and it does not seem to cause any difficulties. People see what the speed limit is—there have to be signs—and they obey it.

[Lord Sewel]

There is a fundamental difference between comparing the Scotland/England situation with that of Northern Ireland and the Republic. They are different states; that is the important issue. I am still concerned about someone crossing the border committing an offence on one side that is not an offence on the other side but losing their licence on a UK basis.

[Lord Wallace of Tankerness]

My Lords, I give the example of the United States, which is one country where there are different speed limits in different states as you cross them. The noble Lord also mentioned licences. However, the point is that certain things are crimes in Scotland but not necessarily crimes in England. Just because you commit and are found guilty of a crime in Scotland, it is not a defence to say, “Ah, but in England I wouldn’t have committed a crime and, therefore, wouldn’t have been fined or gone to prison”. You must accept the law in the place where you are. If you go out to drink and drive, you should have regard to what the limits are. For the sake of argument, if the limit in Scotland was lower and you knew that you would be driving in Scotland, you should have proper regard to what the law is there.

As someone who was brought up some eight miles from the English border, when I was 18 we certainly knew the difference between the licensing hours in Gretna on the Scottish side and Longtown on the English side. In fact, there was a pub much closer, just across the border on the other side of the A74 from Gretna Green. Local people know what the different laws are on both sides of the border. As I say, if you are drinking and driving you should have proper regard to what the law is in the country in which you are driving.

[Lord Sewel]

Is the Minister’s position that if, as in the case that I cited, a person drives across the border and commits a crime in Scotland that is not a crime in England, it is perfectly understandable that, if the situation allowed, he should lose his licence in Scotland but not in England, where he has done nothing wrong?

[Lord Wallace of Tankerness]

My Lords, at the moment you could be in a position in which you gain penalty points, which could cumulatively lead to you losing your licence, because you have breached a 20 miles per hour speed limit set by a local authority. Just because a local authority in Hampshire would not necessarily have designated a 20 miles per hour limit for a similar area, that in no way means that the penalty points that you have accumulated for speeding—perhaps outside a school in Lanarkshire—should somehow be discounted. The point is that if the decision made by the Scottish Parliament was that the law should reflect the problem of alcohol abuse in Scotland, it follows that people are aware of the penalties.

[The Marquess of Lothian]

I have listened carefully to what the Minister has said. He quite rightly said that there are signs to tell you whether the speed limit is 30, 40 or 50 miles per hour. I live in the borders as well and sometimes, to get from one part of the Scottish borders to another, I go through England. Is he suggesting that there should be signs to tell us what the drink driving limit is on both sides of the border?

[Lord Wallace of Tankerness]

I am suggesting that the noble Marquess, being a responsible citizen and knowing the circumstances, will know that the law is different in Scotland and England. After all, let us recall that the Scottish Parliament introduced a ban on smoking in public places well ahead of other parts of the United Kingdom, yet there appeared to be no problem with visitors to Scotland not knowing that the ban existed in Scotland, albeit that at the same time it did not exist in England. These matters will not be dealt with clandestinely. You can bet your life that if the change is made it will be well broadcast. Indeed, as my noble friend Lord Younger indicated, a change was made in the Republic of Ireland that was well known. I am sure it was well known throughout the island of Ireland. Living in Scotland and working in London, I was certainly conscious that that particular change had been made.

On the question of penalties, there is of course no maximum limit to a disqualification. These matters are best taken into account by the court. I hear what the noble and learned Lord says about the minimum disqualification period, especially if it were to apply in the event of there ever being zero tolerance of alcohol. He makes a point that I certainly wish to reflect on because it is a different point. If there is a maximum limit, no special arrangements need to be made as it is properly a matter for the court to take into account when determining the circumstances of any given offence.

--- Later in debate ---

[Lord Wigley]

My Lords, I apologise profusely to the noble Lord, Lord Foulkes, for missing the opening of the debate. I was quite distraught, actually. There was a ministerial meeting on another matter. I had looked forward to being here for this debate.

I only rise because my name was mentioned and my presence here without opening my mouth would be looked at askance. I do not want to go into the fighting with regard to the profile taken by the SNP Government; I want to follow the question of when it is legitimate for a devolved Government to try to have their own voice. Clearly there are opportunities to deal with other countries—for example, in education, in getting students from other countries to come to your universities—where the circumstances may be different in Scotland or Wales, and those opportunities can be taken. Likewise, with regard to industrial development, Wales did very well indeed in combining with the motor regions, including Baden-Württemberg, and there is industrial benefit to be had from the bilateral relationships.

Sometimes it can get a little bit more complicated. The former First Minister of Wales, Rhodri Morgan, led a delegation to Patagonia, where there is of course a Welsh community. The interests of the Welsh community in Patagonia, if one considers them in the context of some recent developments, may not be exactly the same as the interests perceived in this Chamber. Therefore, a balance has to be struck. I do not think that anyone would say for a moment that the First Minister of Wales should not have those links with Patagonia; it is a question of how the thing is then undertaken.

We have also seen it working the other way round. Because of the existence of the National Assembly—and I suspect this is true in Scotland with the Scottish Parliament—there are opportunities for people coming from overseas to link up with people with whom they can do business on a bilateral basis. That is not a problem at all in terms of the UK.

The last two or three contributions have touched on the European Union, and that of course is where problems can arise. In Wales we have had the opportunity to lead the UK delegation from the National Assembly in matters such as the sheep-meat regime, which was led by Elin Jones, the Minister for Rural Affairs; Wales has also led in minority-language meetings. There are opportunities like that. However, the problem arises—and we do not do ourselves any favours if we hide away from it—that there will be some circumstances where the interests of Scotland or Wales may not be identical to the interests, as perceived from London, of the UK as a whole. Fisheries may be one; I am not close enough to that to know. Colleagues from Scotland are much closer to that.

It may be that even on party-political balances—we in Wales have a Labour Government now; there is a Conservative-Liberal Democrat Government here—the perception will be different and the profile that people want to project to the outside world may be different because of that. The question is: how can the line be drawn within a devolved settlement that is reasonable in all circumstances? That is what we need to address, to get the balance right there, rather than perhaps fearing that the thing can go to an extreme that causes difficulties for all concerned.

[Lord Wallace of Tankerness]

My Lords—

[Lord Boyd of Duncansby]

I can quite understand the noble and learned Lord’s wish to progress matters.

I am not entirely clear where to start. The amendment before this House is that:

“Before commencing discussions with representatives of foreign governments or inter-governmental organisations, Scottish Ministers are required to obtain consent to the discussions from a Minister of the Crown”.

It seems that we have ranged a little beyond that.

Perhaps I should start by declaring that I have had discussions with my noble friend Lord Foulkes of Cumnock. He is at liberty to tell the House what these were. I did not actually warn him about cybernats. I should perhaps advise him that he should not read what they say because they will just make him upset—and at his age he really ought to be careful.

I will try to pick up some of the points that have been made, and make one or two of my own. First, it seems desirable to ensure that there is good co-operation between the UK Government and Scottish Ministers when they are engaged overseas. That has not always happened, and even when the Scottish Ministers were of the same political persuasion as the UK Government it did not always happen. I am not saying that there were any undue difficulties, but sometimes the co-operation broke down. I must however say that, personally, I was always grateful for advice from the Foreign Office. My noble and learned friend Lord Goldsmith, when he was Attorney-General, and I represented the United Kingdom at a conference in China between the European Union and the ASEAN countries on the issue of serious crime. I was due to chair a session of the conference which included the Attorney-General of Burma. I was unclear as to what role I should take in relation to the introduction of the Attorney-General of Burma, and I remember being very grateful for the advice that I got from the Foreign Office on that.

Secondly, it is right that both Governments respect the jurisdiction of the other, and that we recognise the frustration where it is felt that Scottish Ministers go beyond their responsibilities, particularly where it appears that they are pursuing a broader political strategy. However, Scottish Ministers have legitimate areas of activity which involve interaction with foreign Governments and intergovernmental organisations. They have responsibility for implementing directives of the European Union in the devolved area. They need to address vital European Union interests, not just in terms of directives but in terms of policy, and in doing so they interact not just with foreign Governments but with other devolved Administrations. The noble Lord, Lord Morgan, referred to the experience of the German Länder, and the way in which they go about their business.

Ministers also have responsibility for promoting trade, tourism and investment, and that of course necessarily brings them into contact with foreign Ministers and Governments. They also take an active part in intergovernmental organisations and conferences. I recently participated in a conference at the London School of Economics on what was called sub-state diplomacy. I found that quite instructive in finding out the way in which devolved Administrations work, not just in Europe but in other places; learning how Quebec, under both nationalist and liberal Governments, had promoted Quebec, and looking at the experience of Catalonia and the Belgian states in Europe.

It seems unrealistic, if I may say so, to suggest that each time Scottish Ministers were to speak to Ministers of other Administrations they should first get the consent of the Government. First of all, if you are at a conference and you are approached by a Minister of another Government it is not always possible to get that consent. Do you say “I’m very sorry, I can’t speak to you because I need to get consent from the relevant Minister”? As we have heard from the noble Lord, Lord Kerr of Kinlochard, sometimes not even the Foreign Office is able to co-ordinate.

With respect I also ask: what exactly are we attempting to do in this amendment? What sanction do we impose on Scottish Ministers if they do not get consent? We risk giving the Scottish Ministers a tool with which they can claim, yet again, that they do not have the respect of the UK Government, and that they are being gagged while they go about what they consider their legitimate business. That is not just a question of consent. If my noble friend is thinking of coming back with an amendment that they should advise or consult before they do that, the same question arises. What sanction does my noble friend suggest should be visited on a Scottish Minister who does not consult, get consent or obtain whatever other permission is required by this amendment?

We should think long and hard. I endorse a lot of what the noble Lord, Lord Martin of Springburn, said, because he made much the same point in his interesting comment, which of course comes from his long experience, mainly in the other place but also here. We should listen very carefully to these voices before we go down this road.

[Lord Wallace of Tankerness]

My Lords, it has been useful to have this discussion on foreign relations and the devolved Administration and devolved Parliament in Scotland. I share a lot of the analysis of the noble and learned Lord, Lord Boyd of Duncansby, that in fact what this amendment proposes is largely unrealistic. He questions the sanction; we can readily anticipate how it would be spun if indeed it was accepted. Indeed, the noble Lord, Lord Foulkes, accepted himself that the amendment was flawed. That said, the noble Baroness, Lady Liddell of Coatdyke, indicated that certain sentiments were associated with this that we should not lose sight of and quite properly referred to the initiative pursued by the noble Lord, Lord McConnell of Glenscorrodale, when he was First Minister, in promoting Scotland’s links with Malawi. That was done in full consultation and co-operation with the United Kingdom Government and has been widely applauded and respected. It shows that it is possible to have that kind of relationship. Indeed, as the noble and learned Lord, Lord Boyd, indicated, there are legitimate areas of responsibility that fall on the devolved Government in Scotland involving interaction with foreign Governments.

It is important, therefore, that the Committee should be aware that there is a memorandum of understanding or concordat on international relations, which deals with devolved Administration engagement with other Governments and which is therefore relevant to the Scottish Government’s interaction with foreign Governments. Two areas are identified that are of relevance here. Bilaterally, the Scottish Government may, in co-operation with the Foreign and Commonwealth Office, make arrangements or agreements with foreign Governments or international organisations on devolved matters,

“provided that such arrangements or agreements do not purport to bind the UK in international law, affect the conduct of international relations or prejudice UK interests”.

Indeed, I can think of educational agreements that have been reached. It also says:

“The Scottish Government is, however, obliged to consult the FCO in advance about any contact, correspondence, or proposal that is novel or contentious, might create a contingent international liability or may have implications for international relations”.

On international organisations it is sometimes appropriate—and this is recognised in the concordat or memorandum of understanding—for,

“Ministers or officials from the devolved administrations to form part of a UK negotiating team”.

In these circumstances,

“The UK lead Minister will retain responsibility for the negotiations and will determine how each member of the team can best contribute”.

This brings us to the issue that was raised by the noble Lord, Lord Kerr of Kinlochard, and that was spoken to by a number of other noble Lords following his intervention. He asked what the position is. The Scottish Government—his memory served him well—have put forward a proposal to have a statutory right to attend and speak at all Council meetings that relate to devolved matters. It was one of the six proposals that the Scottish Government put forward in the summer of last year. My colleagues in the UK Government are considering this request along with the other requests from the Scottish Government and will respond, but it should be clear that a statutory right to attend would inevitably have an impact on Welsh and Northern Irish representation.

Perhaps we may therefore look at what happens in practice. At present, Scottish Ministers can and do attend Council meetings when devolved matters are under discussion and do so as part of a United Kingdom delegation. My noble friend Lord Stephen indicated that there have been occasions, although perhaps not many, when a Minister from the Scottish Executive, as it then was—and still is—has led. Indeed, on more than one occasion he represented the United Kingdom, albeit as a Liberal Democrat Minister in a coalition Government representing the United Kingdom. When I was the Justice Minister in Scotland, I sat alongside Mr Blunkett when he was Home Secretary. At an appropriate point when Mr Blunkett thought that the matter under discussion was more relevant to Scotland than it was to England, I spoke on behalf of the United Kingdom.

The crucial point is that we spoke to an agreed United Kingdom line. The noble Lord, Lord Wigley, is right that on issues such as fisheries there often can be great tensions, but every effort is made ahead of the Fisheries Council to ensure that there is a United Kingdom line to which whoever speaks is expected to, and does, follow.

[Lord Wigley]

I understand the practicalities and that it is desirable, if at all possible, to have a united line, but does the Minister not understand that there may be a genuine difference of aspiration and that the needs of Scotland may be different from the perceived needs of the United Kingdom? Does that not put the representative from a Scottish Government in a difficult position? They will either speak against the interests of Scotland, which they represent, or speak up for Scotland and go against the agreement.

[Lord Wallace of Tankerness]

My Lords, that is the stuff of the negotiation that takes places ahead of these Council meetings. It is important that there is that good co-operation. It would not be sustainable for someone in the United Kingdom Government seat at the table to articulate a policy contrary to the United Kingdom view. Obviously, one can imagine that if a Minister from the devolved Administration did not like it, he would not be jumping to be at the meeting speaking on behalf of the United Kingdom Government.

However, these negotiations take place and I recognise enough noble Lords here from my days in the Commons who took part in the fisheries debates. The noble Lord, Lord Sewel, was the Fisheries Minister and knows full well what the run-up to the December Council meeting in particular, and others, can be like. There is a negotiation to take place and a line has to be agreed in advance, not just between the United Kingdom Government and the Scottish Government but between the Welsh and Northern Irish Administrations as well.

[The Duke of Montrose]

Perhaps my noble and learned friend will tell me if I am wrong, but my impression is that currently the Scottish Administration feel that they should have the right to send the representative Minister in fisheries negotiations.

[Lord Wallace of Tankerness]

As I indicated, the request was for a statutory right to attend. In a hypothetical situation, even if they were to be the UK Minister, they would still have to articulate what had been agreed at a quadrilateral meeting as the United Kingdom line. It is important that we recognise that for the most part this process works and has worked well. It is sometimes not the perception that one gets, but a lot of hard work and effort is put into it.

It is also the case that, when Scottish Ministers hold meetings overseas, the United Kingdom’s diplomatic missions overseas offer them the same level of support as they would to United Kingdom Government Ministers and delegations. I certainly can vouch for that. Indeed, that was my understanding shortly after I took office as the Deputy First Minister in the Scottish Executive in 1999. The then First Minister, the late Donald Dewar, indicated to me that the then Foreign Secretary, the late Robin Cook, had made it very clear that he wished Scottish Ministers visiting foreign countries to be accorded the full facilities. Certainly, it was always my experience that the help was very considerable.

It is also important to remember that, when representing devolved issues, the devolved Administrations can play a valuable role in promoting commerce, industry and culture. When Scottish Development International, a part of the Scottish Administration, arranges visits with a ministerial involvement, it works to try to bring jobs, employment and investment to Scotland and the United Kingdom, something which would be beneficial to the United Kingdom as a whole.

The noble Lord, Lord Morgan, and the noble and learned Lord, Lord Boyd, referred to the Länder. Certainly, one of the strengths of devolution is that, whereas perhaps in the past the United Kingdom Government could not readily relate to or have engagement with Catalonia or Saxony, that is a level of engagement that Welsh Ministers, Scottish Ministers and Northern Ireland Ministers are able to have, which benefits the United Kingdom as a whole.

I fear that this amendment would introduce a statutory requirement which—I have already indicated that I share the analysis of the noble and learned Lord, Lord Boyd—would not work. As I have also indicated, there is a memorandum of understanding, or concordat, in place to ensure that any engagement with Scottish Ministers is conducted in a constructive way. I hope that that will reassure Members of your Lordships’ House. The noble Lord, Lord Foulkes, has facilitated an opportunity to discuss these issues and I hope that he will follow through on what he indicated and will withdraw his amendment in the light of these assurances. This has been a useful debate.

[Lord Foulkes of Cumnock]

My Lords, I am very grateful to the Minister for a helpful reply. As he said, it has been a good debate, notwithstanding the manifest flaw in my drafting of the amendment, for which I take full responsibility. Now that the Minister has drawn our attention, or reminded those of us who have seen it and been involved with it previously, to the concordat on international relations, it might be useful to draw it again to the attention of the Scottish Government in the gentle, kindly way in which he is used to doing.

Perhaps I may say to my noble and learned friend Lord Boyd that even people of my age—even people at the age of my noble friend Lord Maxton and upwards—can come up with ideas occasionally. He was worried about sanctions. Let me underline that I am not suggesting this but, for example, if any expenditure incurred by a devolved Administration were ultra vires—in other words, they were doing things for which they had no responsibility whatever—sanctions could be available.

I should like to say how much I appreciated the intervention of my noble friend—perhaps I may call him that—Lord Wigley. Perhaps I can put it this way: we are not used to quite such sensible nationalists in our parts. I thought that his contribution was very diplomatic, sensible and helpful to the debate.

Now we come to the noble Lord, Lord Kerr of Kinlochard, who I suspect, from what I know of him and from his contribution, is not quite used to the hurly-burly of Scottish politics. He will know—if he does not, I will tell him—that all of us here involved in the hurly-burly of Scottish politics are willing to make our arguments in any ring that is made available. The noble Lord, Lord Forsyth, suggested one the other week. The noble Lord, Lord Steel, and I have discussed it.

Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012

Lord Wallace of Tankerness Excerpts

Tuesday 14th February 2012 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the draft order laid before the House on 10 January be approved.

Relevant documents: 37th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 6 February.

Assisted Dying

Lord Wallace of Tankerness Excerpts

Monday 13th February 2012 Lords Chamber

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

My Lords, I congratulate the noble Baroness, Lady Jay of Paddington, on introducing this debate, and those who have contributed to it. Noble Lords have actually left me with 20 minutes but I shall not take up all that time. The succinctness with which some very passionate points of view have been expressed is remarkable. I have heard the comments made by a number of those who have contributed to the debate about the opportunity for a longer debate on this. I would not dream of speaking on behalf of the usual channels’ business managers, but I am sure that that will have been noted on this occasion, as indeed on an occasion when the noble Lord, Lord Bach, dealt with this issue in a Grand Committee debate when he was in Government.

[Lord Bach]

It was not this issue.

[Lord Wallace of Tankerness]

It was not quite this issue but it was related. There was also a debate in Grand Committee in February 2010 on assisted suicide to which there were many contributors, and the importance of this issue and the salient points that have been made will have been noted. It is evident that this matter generates much passion on both sides of the argument.

At the outset, I would like to make the distinction, as a number of contributors have done, between the form of the law on assisted suicide on the one hand, which is, quite properly, a matter for Parliament—I endorse what the noble Lord, Lord Bach, said: just like the Government of which he was a member, this Government also take the view that a change to the law is an issue of individual conscience. Therefore, it is a matter for Parliament to decide whether there should be a change to the law rather than one of government policy—and the prosecution policy of the Director of Public Prosecutions on the other. The DPP discharges his functions and duties within a framework determined by Parliament.

Perhaps it is important to put the position into context to be able to respond to some of the points. To understand how the policy works in practice, the Crown Prosecution Service was established by legislation as an independent public prosecution service for England and Wales. The Director of Public Prosecutions is the head of the CPS, and—to reflect the point made by my noble friend Lady Berridge—the DPP is superintended by my right honourable friend the Attorney-General, who is in turn accountable to Parliament for the work of the CPS. There is a distinction, however, between that accountability, which is quite proper, and having guidelines and policies approved by Parliament that in some respects could fetter the independence of the decision of the prosecutor.

The primary role of the CPS is to prosecute criminal cases investigated by the police in England and Wales and to provide advice to the police in some of the most serious or complex cases. However, I emphasise again that the CPS operates independently of the police.

The Director of Public Prosecutions has a statutory duty to issue a code for Crown prosecutors. This is one of the most important documents for the CPS, as the code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. In particular, the code sets out the full code test. That is the test applied by prosecutors to the facts and circumstances of every individual case referred to them by the police. It has two stages to it. First, there is the evidential stage: is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, there is the public interest stage: is it in the public interest to proceed with a prosecution?

It is nearly always the case that the public interest is considered only when the evidential stage of the full code test has been satisfied. It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the full code test. It is essential that the public interest is considered by prosecutors when making a decision on an individual case. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution—the point that the noble and learned Lord, Lord Hope, made in his judgment in the Purdy case, to which reference has been made—as the public interest must always be considered.

The most recent edition of the code was published in February 2010 following public consultation. It is a public document and is written in a way that enables it to be followed by the general reader so that the public are able to understand how prosecution decisions are made. However, with relevance to this particular debate, in addition to the code the DPP also publishes public policies and guidance that provide further advice to prosecutors when considering particular types of cases. The various policies and pieces of guidance are expected to be followed by prosecutors and must be read in conjunction with the code.

The policies and guidance are also available on the CPS website, again to provide transparency. The noble Viscount, Lord Craigavon, asked about transparency. As well as setting out the policy guidance, the website also sets out a few individual cases, giving the facts of the case and the route that the DPP took in coming to his decision not to prosecute. The particular case that I am thinking of is set out there. Hopefully, that will at least to some extent aid the transparency that the noble Viscount and others have asked for. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of these documents.

It is important, as has been recognised in many of the contributions to the debate, that the policies and guidance issued by the DPP are not intended to be a substitute for the law or to replace it in some way. A number of those who have contributed to the debate—even those who have called for a change in the law—have reflected on the fact that the policies are imbued with a sense of compassion. More than one contributor talked about the law providing deterrence and the policy guidelines from the DPP enabling the law to be discharged with compassion. The guidelines are there to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedures and any specific evidential and public interest factors to be taken into account. That is the purpose of the policies and guidance. They are subservient to and operate within the framework of the law as determined by Parliament.

The assisted suicide policy was published in its present form following an interim policy and consultation in February 2010. As the noble Baroness said in introducing the debate, we are coming up to the second anniversary of that policy being in place. As has been indicated, it followed the judgment in the House of Lords case of Purdy v Director of Public Prosecutions. Debbie Purdy sought information about the factors that the DPP would take into account in deciding whether to grant his consent to a prosecution under Section 2 of the Suicide Act 1961. Ms Purdy argued that the code issued by the DPP was insufficiently precise to provide her with the information that she sought. In July 2009, the Appellate Committee of the House of Lords found in favour of Ms Purdy. In so finding, the Law Lords required,

“the director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding … whether or not to consent to a prosecution under section 2(1) of the 1961 Act.”.

As I have indicated, an interim assisted suicide policy was published in September 2009. It was the subject of a three-month public consultation, in which more than 4,700 responses were received from interested individuals and organisations. The interim assisted suicide policy was revised by the DPP following careful consideration of the responses to the public consultation. The final version was published in February 2010. At the time of its publication, the revised policy met with broad approval. It is fair to say that it attracted considerable approval from many sides of the Chamber this evening. It is interesting to note that, while the commission that has been referred to, which was chaired by the noble and learned Lord, Lord Falconer, recommended changes to the law on assisted suicide in cases where a person is terminally ill, in cases where there is a non-terminal illness, it indicated the following in its executive summary:

“Therefore, we suggest that the DPP’s prosecution policy should continue to be applied to those cases that might fall outside the scope of the legislation that we are proposing for consideration (for example assisted suicides involving people with chronic illnesses or serious physical impairments who are not terminally ill)”.

Even the commission itself recognised the merit and substance of the policy. It is worth repeating that it does not seek to change the law. Indeed, it cannot change the law, as that is clearly a change that only Parliament can make.

I shall take up some of the specific points that have been made. Prospective immunity was raised. Prospective immunity has never been granted. The DPP told the commission that,

“the position of the prosecutors has been historically that we won’t indicate in advance whether conduct is criminal or not. Various rulings of the courts have indicated that that would be a wrong position for the prosecutor to adopt and therefore we haven’t done that”.

Indeed, it goes beyond the DPP’s power because the police are responsible for deciding when an investigation should be instigated. Obviously, if there was no alleged crime, that would not be possible.

With regard to the medical profession, the guidelines try to strike a balance but acknowledge that as the law stands the law does not give immunity from prosecution in this regard. I do not wish to quote at great length from the evidence of the Director of Public Prosecutions to the commission. However, he set out the balance that he has sought to apply in the policy. The policy guidelines do not refer to a medical doctor but to a person,

“acting in his or her capacity as a medical doctor”.

It would be wrong to confer blanket immunity, if that is how it would be interpreted. That would not only fetter the discretion of the Director of Public Prosecutions who needs to look at the individual circumstances of every case but would be tantamount to a change in the law. As has been said, that is a change in the law that is for Parliament to determine.

With regard to families and doctors discussing end-of-life options, the noble Baroness, Lady Finlay, indicated that she did not think such discussions were taking place. Again, however, that is a matter which would more appropriately require a change in the law rather than indicating, ahead of a potential crime being committed, that there was immunity for it.

It is very difficult to do justice to such a wide issue. In that respect, I have a lot of sympathy with those who think that we should have a much wider debate. I have tried to pick up some of the salient points that have been made. My noble friend Lord Glasgow was not alone in indicating that perhaps the time had come for a change in the law. As I have indicated, that is not a matter of government policy but is a matter for individual conscience and for Parliament. However, I rather suspect that we will be back here debating this issue in days to come.

Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012

Lord Wallace of Tankerness Excerpts

Monday 6th February 2012 Grand Committee

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do consider the draft Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012.

Relevant documents: 37th Report from the Joint Committee on Statutory Instruments.

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

My Lords, the draft order was laid before your Lordships’ House on 10 January 2012. In asking your Lordships to agree that it should be considered, I shall provide the Committee with a brief summary of what the order seeks to achieve.

The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Housing (Scotland) Act 2010, which I shall refer to as the 2010 Act. The Lords Merits Committee has reviewed this order and has not noted it as being of special interest.

The 2010 Act made provision for the regulation of social housing in Scotland, including the establishment of the Scottish Housing Regulator. The 2010 Act repeals Scottish Ministers’ regulation and inspection functions under Part 3 of the Housing (Scotland) Act 2001. In their place, it establishes the Scottish Housing Regulator as an independent body with the objective of safeguarding and promoting the interests of persons who are or who may become homeless, of tenants of social landlords, and of recipients of services provided by social landlords. The Scottish Housing Regulator will operate within a set of priorities agreed with Scottish Ministers but will be accountable to the Scottish Parliament for the efficient use of public resources.

The order will make the Scottish Housing Regulator a part of the Scottish Administration. An important effect of this arrangement is that staff of the agency who presently discharge functions on behalf of Scottish Ministers under the Housing (Scotland) Act 2001 and are currently civil servants will transfer to the Scottish Housing Regulator and continue to be civil servants. The order will ensure that UK legislation is updated to reflect the changes made in the 2010 Act, and will ensure that UK legislation can continue to operate where it interacts with the new devolved legislation. It will also ensure that the Crown Suits (Scotland) Act 1857 does not apply to the Scottish Housing Regulator, with the effect that the Lord Advocate cannot be sued in the place of the Scottish Housing Regulator.

The order demonstrates the Government’s commitment to working with the Scottish Government to make the devolution settlement work. I hope that the Committee will agree that this order is a sensible use of the powers in the Scotland Act to achieve a practical outcome. I commend the order to the Committee and I beg to move.

[Lord Browne of Ladyton]

My Lords, I thank the noble and learned Lord for his words of introduction. I should say at the outset that I have no issue of principle with, or any objection to, the order before the Committee. I shall take only a few minutes of the Committee’s time to make some points of context and to raise one point for clarification.

As the noble and learned Lord and indeed the Explanatory Memorandum make clear, the order is consequential on the provisions of the Housing (Scotland) Act 2010—unusually, I suppose, for an Act of the Scottish Parliament, which among other things makes provision about the regulation of social housing in Scotland. It is unusual to the extent that it is not normal for regulations to be made here in consequence of an Act of the Scottish Parliament when there are provisions, as the Minister has pointed out, to ensure that where necessary consequential provisions require Acts of this Parliament they will be carried out in the context of the Scotland Act 1998.

In turn, the 2010 Act is just the legislative leg of a journey that started back in October 2007 with the publication of Firm Foundations, the discussion document on the future of housing in Scotland that set out the new SNP Scottish Executive’s proposals for reform and their policy ambitions for Scotland. The SNP entered government with an ambition to increase the rate of new supply of housing in Scotland to 35,000 units per year from the 25,000 per year that they inherited from the previous Scottish Executive, and they had an election pledge to build 6,000 socially rented houses for each year in government. However, they are far from realising their primary target; indeed, today the website of Shelter Scotland, drawing on the Scottish Government’s own statistics, shows that in 2010-11 just over 16,000 new homes were built in Scotland, which, as anyone who knows basic arithmetic will see, is 9,000 per year fewer than what they inherited. As a result of the SNP’s cuts to the affordable housing budget, the social sector will fall by 30 per cent this year, which will choke off growth in social housing. At the same time, the SNP has rejected Labour’s five-point plan for jobs and growth in Scotland that would use the revenue generated from the bank bonus levy to create jobs and fund the construction of 2,500 affordable homes in Scotland. Instead, the nationalists have slashed new build approvals to an unprecedented low and seem to have scrapped their manifesto promise and previous targets.

My second general point is that, to the extent that the order reinstates the independent regulation of social housing in Scotland, we support it. However, the real disappointment of the 2010 Act is the missed opportunity to improve the regulation of the private rental sector in Scotland. A strong and responsible private rental sector is vital to delivering affordable housing, and we are committed to rooting out rogue landlords and placing stronger duties on all landlords to maintain standards in the properties that they rent. Those who have represented constituents in Scotland will know that the conduct of these landlords is the bane of many communities there.

I make all these points because, despite the fact that a whole chapter of Firm Foundations was devoted to the rented sector, since then the SNP Government have focused on restricting the right to buy and restructuring the administrative arrangements, of which the set of regulations before the Committee are but a part. They have avoided completely the problems that arise from the private rental sector in every single community in Scotland, and have substantially failed to address the fundamental problem of the crisis in social housing in Scotland.

Despite all that, the changes that the order makes are uncontroversial from the perspective of these Benches. Primarily the changes ensure that civil servants who at present perform the regulatory functions of the existing Scottish Housing Regulator as an agency of the Scottish Executive continue to hold the status of civil servant when they transfer to the new Scottish Housing Regulator, which will be a body corporate. As the Minister has said, this is done by making the new Scottish Housing Regulator a part of the Scottish Administration.

As your Lordships will realise by now, the serious questions that I have in relation to this whole policy are not properly addressed to the Minister at all; rather, they are addressed to the Scottish Executive. As there is an opportunity to put them on the record, though, I could not resist it. I have one relatively simple question for him regarding the second part of the regulations. Article 3 relates to the application of the Crown Suits (Scotland) Act 1857. As I understand it, as this is a body corporate—an independent body, part of the Scottish Administration but not part of the Executive—if one has to sue it, one will not have the benefit of being able to sue the Lord Advocate. In other words, one will not have the option of suing the Government for any action that one has against them.

I should just like the noble and learned Lord to take the time to ensure that those who may at some stage have to read this record are clear that it is the Government’s expectation that that body will have sufficient resources to meet any liabilities generated in relation to anybody who has cause to sue it. It may not be an issue that he is able to address directly without some form of inspiration, so I should be happy for him to write to me about it.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Browne of Ladyton, for his response and for generally welcoming the principle that underlies the order. As he indicated, it has three functions. One is to ensure that the Scottish Housing Regulator becomes part of the Scottish Administration. That is something that the Scottish Parliament does not have the legislative competence to do—hence the need for this order. Again, the Scottish Parliament does not have the competence to change UK legislation beyond the devolved competence, and an order such as this allows that to happen. We will come back to the point about the disapplication of the Crown Suits (Scotland) Act 1857.

The noble Lord said that he thought it was somewhat unusual for us to be here discussing secondary legislation that is essentially an Act of the Scottish Parliament. I understand that since 2000 there have been 51 orders under Section 104 of the Scotland Act. Indeed, I think that since I took office I have brought to a Committee orders under Section 104 on at least three or four occasions. In spite of some of the furore and some of the headlines that one sees about relationships between the Westminster and Holyrood Governments, there is in fact considerable co-operation between the two Governments over a large area of work. There is certainly also a willingness to give the legislation of the Scottish Parliament full effect in areas which it has not been able to tackle as they have been beyond its legislative competence. In such cases, through co-operation and negotiation it is possible to bring forward orders such as this to give effect to the intention of the Scottish Parliament.

The noble Lord clearly raised matters of policy. Tempted though one may be to follow him down that path, although I have many responsibilities, one is not to answer on behalf of the Scottish Government, for which mercy I should probably be very grateful. However, he has taken the opportunity to highlight important housing policy issues relating to building to meet housing need and the importance of ensuring that the private rented sector is well regulated. From his former experience as a constituency Member, he has obviously identified many cases where proper regulation is needed.

It is also fair to point out that when the consultation took place on the Firm Foundations document there was overwhelming support from the stakeholders who responded that there should be a high degree of support for the principle of independent regulation, which of course is what is sought to be done by the establishment of the Scottish Housing Regulator.

The noble Lord, Lord Browne, also asked a specific question about the Crown Suits (Scotland) Act 1857. As he indicated, as a result of the body becoming a body corporate, it was deemed more appropriate that legal action should be taken against the body itself and not against the Lord Advocate. He asked what would happen. I am more than willing to write to the noble Lord with a fuller answer but the short answer is that the public purse would pick up the costs if, for example, there was a judicial review. Clearly, that would be a matter for budget negotiations. It would be a question of whether the Scottish Housing Regulator had the resources for that and whether the budget would have to be adapted in other ways. However, I shall certainly give greater clarification to the noble Lord on that point. I think that only if the board acted well beyond its competence or unreasonably would the costs would fall upon it, but I shall seek to clarify that point.

I hope that I have responded to the noble Lord’s points and I therefore ask the Committee to agree that it has considered this order.

Motion agreed.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Thursday 2nd February 2012 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Browne, and my noble friend Lord Shrewsbury for giving us an opportunity to look at this part of the Bill that specifically relates to devolution in respect of air weapons.

The amendment of the noble Lord, Lord Browne, seeks to remove the exception the Government have made in the Scotland Bill to the devolution of powers to license air weapons. Clause 11 provides that the Secretary of State retains the powers to make rules under Section 53 of the Firearms Act 1968 to specify weapons as “specially dangerous” and so require a firearms certificate, and also to make orders under Section 1(4) of the Firearms (Amendment) Act 1988 to prohibit specially dangerous weapons.

The contributions of the noble Lord and my noble friend indicated that this is a complex issue and I take the general point about the legislation being in different Acts. I therefore fully recognise why the noble Lord wishes to explore fully why the Government are not devolving the powers that are part of the exception in Clause 11. This was discussed in another place. In many respects, the issue turns on the way in which the Firearms Acts are drafted and the need to ensure that all specially dangerous weapons are dealt with on a consistent basis across the United Kingdom. Like the noble Lord, we should perhaps go back to the report of the Calman commission, which recommended that only air weapons should be devolved—although we know that there are those who would wish devolution to be extended to all firearms. I know that other members of the Calman commission are present. I do not remember us having any particular discussion of subcategories of air weapons that might be described as specially dangerous.

The Government believe that it would be confusing and potentially damaging to create a situation in which much of the body of firearms legislation in Scotland could differ substantially from that in England and Wales. Calman, too, said that there could be,

“serious disadvantages in having different, uncoordinated policies”,

and therefore does not recommend devolving generally the subject of the Firearms Acts. That being so, we need to ensure that there is a common framework for the most lethal weapons across Great Britain, and this will include what are known as Section 1 firearms, such as hunting rifles, which require a firearms certificate issued by the local police.

In accepting the Calman recommendation that air weapons should be devolved, we looked to do that by adding an exception to Section B4 in Schedule 5 to the Scotland Act 1998, which currently reserves firearms by reference to the subject matter of the Firearms Acts 1968 to 1997. Those Acts cover regulation of the manufacture, possession, handling, purchase or acquisition, sale, distribution and transfer of firearms. They distinguish between different types of firearms in certain respects and make different provision for different types, including air weapons. Air weapons are defined in the current legislation in accordance with Section 1(3)(b) of the Firearms Act 1968. This refers to an air rifle, air gun or air pistol which has not been declared to be specially dangerous by rules made by the Secretary of State under Section 53 of the Act, and is not a prohibited weapon.

I claim no expertise or experience whatever in firearms, but I understand that currently, air pistols generating a muzzle energy in excess of six foot pounds and other air weapons generating a muzzle energy in excess of 12 foot pounds have been declared to be specially dangerous for these purposes. This means in practice that an air weapon which has been declared as specially dangerous becomes subject to the requirement to hold and abide by a firearms certificate. It therefore ceases in practical terms to be treated as an air weapon under Section 1(3)(b) of the Firearms Act 1968. Control of these types of weapon need to remain reserved, which is why the power to make rules under Section 53 of the 1968 Act will remain those of the Secretary of State.

I reassure noble Lords that we are not looking to restrict the way in which the Scottish Parliament exercises its legislative competence in respect of air weapons. I acknowledge that there is a drafting complexity in Clause 11, but in practice the Scottish Parliament will be able to regulate air weapons in the way in which it chooses.

[Lord Forsyth of Drumlean]

My noble and learned friend simply stated that the regulation of those more powerful weapons needed to be reserved. Can he explain why?

[Lord Wallace of Tankerness]

Because that takes them into a category for which licensing is required. We took the view, as did Calman, that there are categories of firearms which should not be devolved, those which might be described as more powerful, more dangerous, and that the particular air weapons which are the subject of our debate fall into that category and have more in common with firearms covered by other parts of the Firearms Acts than they do with other air weapons. It is because of their potential lethality. That is why there seemed to be a distinction between them and air weapons which are the subject of devolution.

[Lord Forsyth of Drumlean]

I am genuinely trying to understand this. If the Scottish Parliament was to have power to regulate those “less dangerous” air weapons, how would it do that without having a licensing scheme? If my noble and learned friend’s argument is that they are required to be part of a licensing scheme, I do not understand the logic of it. If the Government’s view is that the Scottish Parliament ought to have this responsibility, is the Minister saying that it can only have responsibility for weapons if they are not very dangerous? It seems to be a little illogical to me.

[Lord Wallace of Tankerness]

With respect, it is not illogical at all. A point I will raise when I respond to my noble friend Lord Shrewsbury is that this is devolution of a power. How the Scottish Parliament chooses to exercise that power, if at all, is a matter for the Scottish Parliament. I am trying to find the relevant part of the Calman commission report, which dealt not with the point about especially dangerous air weapons but with the more general point about firearms.

The commission indicated that the UK Government of the day had,

“argued that any ban on a firearm which it is currently legal to possess would need to be underpinned by a compensation scheme. It argues that where such firearms are currently unregulated”—

which is the specific case for air guns—

“it would be difficult to prevent them being legally and cheaply acquired in one jurisdiction and passed off for compensation in another which had introduced a ban. This is not an argument against devolution itself as much as it is a caution to a devolved administration making difficult policy decisions it believes to be in the best interests of its citizens. Whilst there would undoubtedly be practical considerations and potential difficulties in any divergence of approach to firearms control they do not preclude the development of robust mechanisms for managing cross-border problems, information sharing and good communications”.

The Calman commission did not think that the case had been made for the devolution of firearms generally. The point is that especially dangerous air weapons are, in effect, firearms, licensed across Britain on the basis of what I think is widely recognised as a strict, world-leading regime. The Government do not wish to undermine that strict framework for the most dangerous weapons. Air guns that are the subject of devolution in this clause are not subject, at the moment, to what might be described as that strict licensing regime. That distinction is made, which is why the exception to the devolution of air weapons is being made in this clause.

[Lord Forsyth of Drumlean]

I am grateful to my noble friend. Perhaps it might be better if I made a speech rather than asked questions, but I am struggling to understand the logic here. The Minister has read from the report by the Calman commission, which was chaired by Ken Calman, for whom I have considerable respect; he was my Chief Medical Officer for Scotland. I am not sure that he is actually an expert on firearms regulation. The Minister’s quotation from the report seems to be saying that this would be very difficult to administer and very expensive. That is not an argument against giving Scotland the power, because it might not use it. However, not giving it the power creates the kind of uncertainty that my noble friend Lord Shrewsbury talked about.

[Lord Wallace of Tankerness]

The noble Lord, Lord Browne, quoted other parts of the report, which said that, notwithstanding that, there would be cases where devolution would be appropriate. Indeed, the commission identified particularly Scottish circumstances as to why air weapons should be devolved. That was the commission’s recommendation, which not only the present Government accept and are trying to implement through the Bill; the previous Government also agreed to the principle of devolving the power to regulate air weapons to the Scottish Parliament in the White Paper that they published in response to the Calman commission.

I am trying to make the point that some categories of air weapons are currently subject to a licensing regime because of their power. We still seek to maintain that reservation for that category, subject to the Secretary of State’s powers under Section 53 of the Firearms Act.

[Lord Browne of Ladyton]

I thank the noble and learned Lord for giving way. Indeed, I am grateful to the noble Lord, Lord Forsyth, who, in one simple question, encapsulated what it probably took me seven minutes to say. The purpose of this devolution is to respond to an obvious desire in Scotland for the greater regulation of air weapons generally. Regulating them more means licensing, at the very minimum. It is inconceivable that if the Scottish Parliament is given this power, it will not make all air weapons subject to a licensing regime. The distinction, therefore, between an air weapon of lesser capacity, force or power not being regulated and one of more power being regulated disappears. There will be two licensing regimes for air weapons when, in my submission, there should be one. If there is to be a distinction between, or a subdivision in, the licensing regimes for air weapons—one at the UK level and one at the Scottish level—will that not just add to the confusion rather than making matters simpler?

[Lord Wallace of Tankerness]

I see the point that the noble Lord is making but I do not necessarily follow him down that route. For a start, this is the devolution of a power. It is a prescription as to how that power might or should be used and, even if it is a licensing scheme, it may well be very different. We seem to be getting weapons that are not subject to the kind of strict licensing regime that we have at the moment. Therefore, I think that a distinction can be made, which we wish to keep, for weapons of greater power so that we can maintain consistency across the United Kingdom. As I have already quoted from Calman—it might even be the passage that the noble Lord read out—there seem to be advantages in maintaining that consistency.

[The Earl of Shrewsbury]

Although my noble friend says that this is enabling legislation which the Scottish Parliament may or may not put in place, does he not agree that the Scottish Parliament is already doing it when the Act has not yet been passed? It is already investigating my people from the Gun Trade Association who have been up there to give evidence to it.

[Lord Wallace of Tankerness]

My noble friend made a very powerful speech. However, we cannot make presumptions in that regard; nor can we presume what the shape of any licensing regime would be. The points that his colleagues in the gun trade are making may well help to determine the shape of that legislation.

Perhaps I may turn to my noble friend’s amendment. He has set out very clearly what he sees as the consequences of imposing restrictions on air guns in Scotland, if indeed the Scottish Parliament chooses to go down that route. He has highlighted how any changes will have implications for the trade and for the police not just with regard to licences but with regard to the financial burden that he has outlined, and he has suggested that they are consulted by the Scottish Government before any new legislation is introduced.

[The Duke of Montrose]

Perhaps my noble and learned friend could clarify one of the points introduced by the noble Lord, Lord Browne of Ladyton. The power in the Bill would presumably prevent the Scottish Parliament making any legislation on powerful weapons—it would be able to bring in regulation only on the non-powerful weapons—whereas what the noble Lord, Lord Browne, said might have been interpreted as meaning that it would try to regulate both.

[Lord Wallace of Tankerness]

I am not sure that that is the case. However, I think my noble friend is right that the power in the Bill does not relate to more powerful weapons. Especially dangerous air weapons are already licensed. We are providing Scottish Ministers with a power to put in place a licensing regime, as the noble Lord suggested, for air weapons, which are not regulated under the current GB framework. A very simple distinction has been made between weapons that are currently regulated and those that are not, and the devolution of power relates to those that are currently regulated.

[Lord Forsyth of Drumlean]

I am sorry; it is very bad to interrupt my noble and learned friend so often but I just do not understand this. I can understand the concept—the wish—to devolve to the Scottish Parliament the power to regulate firearms, and the wish to give to the Scottish Parliament the power to regulate air weapons. However, I do not understand the concept that the Scottish Parliament should be able to deal with only some air weapons and not others. That will create monumental confusion and we could end up with a system where the less dangerous weapons are subject to more control than the most dangerous weapons, which would be absolutely absurd. How would we avoid that?

[Lord Wallace of Tankerness]

I think that my noble friend is seeing difficulties where they do not really exist. The clear view was taken by the Calman commission, by the previous Labour Administration and by the present Government that firearms as a whole should not be devolved. We are trying to explain—and I apologise to your Lordships if I am not doing so sufficiently well—that the weapons that under Clause 11 are not being devolved fall more closely into the category of firearms than unregulated air weapons, which are being devolved. Therefore, we are maintaining a consistency with regard to weapons that are currently the subject of a licensing regime vis-à-vis weapons that are not currently the subject of a strict licensing regime.

My noble friend says that that could lead to a stricter licensing regime. I have to concede that that is technically possible if the Scottish Parliament sees fit to do that, although I would have thought that some of the compelling arguments made by my noble friend Lord Shrewsbury may well mean that a bit of common sense will prevail when it shapes these powers. That is the essence of devolution. If a power relating to air weapons is devolved, as long as it is consistent within the confines of the Scotland Act it is a question of how that power is exercised.

[Viscount Slim]

My Lords, in a past life, I, with others, was able to experiment at some length with the possible advantage of an air gun for military use. On the market at the moment there are air guns that are lethal and really dangerous. There are air guns that some people say are less dangerous but, in the wrong hands, all air guns kill or maim to such an extent that you might perhaps wish you were dead. Has not the noble Earl, Lord Shrewsbury, put his finger on it? There seems to be a muddle. If you let the civil servants of both nations loose, you will have a much bigger muddle; you will have a catastrophe. Surely the noble Earl is right that before ruling on this, the proper government officials of both nations—I say nations now because everyone wants to be different and separate—should work out what is a dangerous weapon. The noble Earl is quite right that senior police officers from both countries and government officials should get together and then perhaps we shall make a sensible Bill.

[Lord Wallace of Tankerness]

My Lords, the noble Viscount makes a wider case about a general review of firearms at the UK level. The question of air weapons goes considerably further than the scope of this Bill, although I am sure the important points that he makes will be noted. This also covers the point made by the noble Lord. My noble friend pointed out that a licensing scheme would impose significant and costly burdens on firearms licensing departments and he expressed concern that shooters might be deterred from visiting Scotland by what might become overly bureaucratic controls. Taking these factors together, he proposes a statutory right for those affected by any changes to have their views heard.

As I have said in the context of the debate of what is and is not devolved, it is not for this Government to gainsay any of the reasons he has adduced in relation to the licensing of air weapons. Indeed, I recognise that sports shooting is a valuable contributor to the Scottish economy and that any change to firearms legislation is rarely straightforward.

That said, 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, as always, within the constraints of the law. This amendment, moved by my noble friend, would fetter the Scottish Government’s and Scottish Parliament’s discretion as to how they might go about the task of regulating air weapons. That was not the recommendation from the Calman commission.

However, while this is not a matter for the statute, I would say to my noble friend and to the Committee that one should fully expect the Scottish Government to consult appropriately before it proposes any new legislation on this matter in the same way that it would normally do with other Bills submitted to the Scottish Parliament. Indeed, it is worth reminding the Committee that the standing orders of the Scottish Parliament, at rule 9.3.3, require a policy memorandum to accompany any executive Bill setting out,

“the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation”.

Certainly the categories of consultation that have been suggested by my noble friend would appear to be eminently sensible. It is also important to point out that over a range of issues there is regular contact between the Scottish Government and the UK Government with regard to proposals that are coming forward for legislation in the Scottish Parliament. The UK Government will, of course, continue to work with the Scottish Government once the power is devolved to ensure that all who own air weapons and use them legitimately are clear on what the legal requirements would be north and south of the border and will indeed flag up to interested bodies that are not in Scotland that there may be some relevance here, not least ACPO, which may wish to make representations.

In addition, each Bill introduced into the Scottish Parliament must, in line with rule 9.3.2 of the standing orders, be accompanied by a financial memorandum which,

“shall set out the best estimates of the administrative, compliance and other costs to which the provisions of the Bill would give rise, best estimates of the timescales over which such costs would be expected to arise, and an indication of the margins of uncertainty in such estimates. The Financial Memorandum must distinguish separately such costs as would fall upon … (a) the Scottish Administration; (b) local authorities; and (c) other bodies, individuals and businesses”.

It certainly seems to me, from what my noble friend said, that, in terms of the financial costs, we can anticipate some quite comprehensive evidence being presented under these headings.

Ultimately, the Scottish Parliament will be the final arbiter but where there are issues to be resolved it would be hoped that the Scottish Government will wish to listen to the arguments. It would appear that already there is engagement with some of the interest groups and stakeholders in this area. My understanding is that they have already set up a consultative group to advise on proposals to introduce a system to license air weapons in Scotland and I assume it will continue to meet if Parliament agrees that this clause should be enacted.

I hope I have indicated that there is a distinction between what is being devolved and the categories of air guns which are not being devolved and that in fact there are adequate procedures in the standing orders of the Scottish Parliament, both for extensive consultation and for the financial burdens to be properly aired and presented to the Parliament. On that basis, I invite the noble Lord to withdraw the amendment.

[The Earl of Caithness]

My Lords, perhaps my noble and learned friend can help me on the use of air weapons. Would it be possible for there to be two sets of regulations north and south of the border? In those regulations, would it be possible to prohibit the use of a weapon from England, say, in Scotland where it does not have to be licensed, whereas in England it has to be licensed? Would it be possible for the Scottish Government, within regulations, to make an order that that weapon could not be brought into Scotland and used?

[Lord Wallace of Tankerness]

My Lords, I seem to recall going over some details during the Calman commission. It must happen already when shooting parties come from other parts of the European Union. The trouble is that I cannot remember what answer the Calman commission got. I had better not mislead my noble friend and I shall write to him giving him chapter and verse.

[Lord Forsyth of Drumlean]

My Lords, I am still not persuaded by my noble and learned friend. Perhaps I am getting old and cynical. He served on the Calman commission and it is interesting that none of the other members of the Calman commission has felt able to contribute to this interesting debate and explain how they came to this conclusion.

One remembers the genesis of the Calman commission. It was an initiative led by the Labour Party, which the other unionist parties joined in with in order to prevent the case for independence and the nationalists being able to gain control of the Scottish Parliament. In that sense, it fell at the first fence. The idea was to look at what further powers beyond this Scotland Act could be devolved to Scotland. If I may address my noble and learned friend as a member of the Calman commission, one has the sense that he was scrambling around trying to think of things which could be devolved to the Scottish Parliament.

Something that worried me about my noble and learned friend's response to my noble friend Lord Shrewsbury was that he kept relying on what the Calman commission recommended. The commission made recommendations to the Government. It was the responsibility of the Government to consider them, decide what made sense and put forward their proposals. We are not talking here about the Calman commission's proposals; this is a government proposal. I respectfully suggest to my noble and learned friend that as a Minister in the Government he should be able to defend it.

I cannot for the life of me understand why it would be desirable to have another licensing system for air guns in parallel with the one that exists south of the border. I can see the argument. The noble Lord, Lord Browne, rightly pointed to some horrible and tragic cases that occurred in Scotland. However, there is nothing unique about Scotland that means that these cases could not also happen in England. The corollary is that the Government should look at the licensing of air weapons throughout the United Kingdom. If one is going to pass laws—as my noble friend Lord Shrewsbury pointed out—one ought to be conscious of how one is going to enforce them. If we get to a position where air weapons are either illegal in Scotland or are subject to a different regulatory regime from that which exists in England, how will that be enforced at the border? Will we have guys on the A74 checking whether the precise nature of a weapon meets the regulations that have been passed by the Scottish Parliament?

Faced with these challenges, my noble and learned friend resorted to the argument that, “We are only devolving the power. The noble Lord, Lord Forsyth, is putting forward arguments about what might occur if the Parliament chose to exercise that power”. However, this Parliament should not create the legislative possibility of creating great confusion and difficulty in the administration of firearms legislation. The clause would be better if it gave the Scottish Parliament the power to deal with all weapons. If my noble and learned friend's argument is that some of these weapons are firearms, it becomes very difficult to see as one goes down this road how one would defend not giving the Scottish Parliament complete authority over all firearms, in which case we would have different regimes on different sides of the border—and that would make controlling firearms almost impossible. We seem to be creating a difficulty.

My noble and learned friend accused me of seeing problems where they did not exist. I do not see why the current regime would not be capable of dealing with the concern about air weapons, and I can see how this clause will create great confusion and difficulty. As my noble friend Lord Shrewsbury pointed out, air weapons do not have serial numbers. It is asking a lot of a policeman to look at an air weapon and decide which category it is in. This looks like the product of a political fix. There was great public concern about air weapons; it was a big issue. The Calman commission said, “We must do something about air weapons”. It looked at the practicalities and found that they were very difficult, so we ended up with a camel designed by a committee.

I urge my noble and learned friend to look at this again. It is a very serious matter and I do not believe that the Bill addresses the practicalities involved. I support the noble Earl’s very modest amendment, which does not seek to attack—as I have just done—the basis of the legislation in the clause.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I approach the Dispatch Box to probe again the distinctions between what Calman recommended and what the Government have chosen to do. On this occasion, the Government have gone beyond the Calman recommendations.

Clause 12 has the backing of respected bodies, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland. During the many evidence sessions throughout the Calman process, it became clear that the insolvency profession in Scotland sought the harmonisation of insolvency law on both sides of the border. However, Clause 12 goes beyond the original Calman recommendations. Your Lordships will recall that Calman recommended that the UK Insolvency Service be responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border.

Calman went on to recommend that this could be achieved by UK legislation to which the Scottish Parliament would consent by a legislative consent Motion under the Sewel convention—I think those are the exact words of the recommendation. I understand that technically—a word I do not like to use—this is exactly what the Government have done in the sense that this Bill is UK legislation that has to be consented to by a legislative consent Motion by the Scottish Parliament. However, that appears to be a pedantic argument, and I do not expect that the noble and learned Lord will resort to it.

The clause does not appear to be in keeping with the spirit of the original Calman recommendations. Does the Minister believe that this is the correct implementation of Calman, or does he agree that it goes beyond Calman? It goes beyond the reservation of the power for the Insolvency Service to lay down the rules to be applied by insolvency practitioners on both sides of the border and reserves the whole body of law on corporate insolvency. If the Minister agrees that this goes beyond the Calman recommendation, will he outline the reasons for so doing?

The report of the Scotland Bill Committee of the Scottish Parliament, which was overwhelmingly approved by the earlier legislative consent Motion of the Scottish Parliament—as I have said before, it was supported by Alex Salmond—approved Clause 12, subject to provisions being drafted that will secure capacity for devolved legislation to effect the winding-up of registered social landlords. Does the Minister believe that this condition has been satisfactorily met? If so, can he explain why that is the case; and, if not, can he justify to this House why he has decided to pursue an alternative path to that sought by the Scotland Bill Committee?

During the debate on this clause in the other place, the Scottish nationalists asserted that there were concerns about the process of amending existing provisions on winding up registered social landlords. One concern is that future amendments, they say, would be easier to come by if this policy area were devolved rather than reserved. As is often the case with Scottish nationalists, this was asserted as though it were fact, and, as is also often the case with them, the assertion was not backed up by any evidence to suggest that that would be the case. No examples were given to support this theory, for that is all it is. It appears simply to be a continuation of their argument that everything would be better if it were devolved to the Scottish Parliament. The Minister in the other place, the Parliamentary Under-Secretary of State for Scotland, argued that this is not a cause for real concern, and I support that position.

However, the Minister went on to say that there was a problem and that there were ongoing discussions between the Insolvency Service and the Scottish Federation of Housing Associations to discuss the latter’s specific concerns about this clause. Perhaps the Minister will update the House on the progress, or better still the outcome, of those discussions to satisfy us that the issue has been resolved. I am certainly not the only Member of this House to have received a briefing note from the Scottish Federation of Housing Associations that articulated continuing concern about the impact of this clause. I would not like to think that this is a sign that discussions were not successful, but if they were not successful, the Minister should explain to the Committee what is going on.

There is an identified issue here about circumstances that may arise in the winding-up or potential insolvency of a particular vehicle for delivering important housing in Scotland or a housing association. It is recognised that this needs to be resolved by discussion or perhaps by a change in regulation. Before we agree to this clause standing part of the Bill as drafted, your Lordships' House is entitled to know whether that issue has been addressed and satisfactorily resolved, or at least to have the confidence that a resolution is on its way.

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Browne, for giving us an opportunity to look at this clause. Schedule 2 is also relevant to insolvency. As he indicated, there was a recommendation from the Calman commission that the UK Insolvency Service should be made responsible for laying down rules to be applied by insolvency practitioners on both sides of the border. The noble Lord asked a very pertinent question about why the Bill goes beyond the specific terms of the Calman commission’s recommendation.

The commission was persuaded by evidence from stakeholders, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland, that a consistent approach to winding up would bring significant benefits to creditors, companies, insolvency practitioners and others dealing with insolvent companies in both England and Wales and Scotland. The Institute of Chartered Accountants of Scotland said:

“We do not see any advantage in encouraging divergence of practice when businesses across the UK operate in a similar environment”,

and,

“This will promote a more stable environment for corporate recovery and turnaround and be more comprehensible for creditors and potential investors”

Certainly in the present environment, that is an important consideration. Many winding-ups involve groups of companies that operate on both sides of the border. We believe that it will be more efficient in time and money if the same winding-up rules, other than where Scottish common law requires something else, are applied to each insolvent company in the group.

These amendments will make reorganisations more efficient and increase returns to creditors and shareholders. Group reorganisations may involve subsidiaries being wound up, and a common approach to winding-up rules should help to reduce the cost and complexity of group restructurings whose constituent companies operate both in Scotland and in England and Wales.

Indeed, in its evidence to the Calman commission, the Institute of Chartered Accountants of Scotland, which regulates most of the insolvency office-holders working in Scotland, highlighted the benefit of consistent rules in promoting a more stable environment for corporate recovery and turnaround. Further, the Law Society of Scotland reported in its evidence to the commission that, because of the increased number of insolvencies of groups of companies, practitioners have for a number of years been having difficulties where parts of the group are subject to the rules for England and Wales and parts to the Scottish rules. The Calman commission was persuaded that there should be a consistent approach to winding-up rules, and the UK Government agree with that position.

The commission recognised that its first option for implementing its recommendation that the UK Insolvency Service, with appropriate input from the relevant departments of the Scottish Government, should be made responsible for laying down insolvency rules for England and Wales and Scotland might not be achievable for technical reasons. It therefore acknowledged that the devolution settlement might need to be amended to secure the desired effect.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

21: Clause 13, page 9, line 7, at end insert—
“The reference to any profession regulated by the Regulation of Care (Scotland) Act 2001 includes—
(a) any profession regulated by that Act by virtue of any subordinate legislation (whenever made) which is or could be made under the Act, and(b) any profession regulated by any Act of the Scottish Parliament so far as it re-enacts that Act (including any profession regulated by virtue of subordinate legislation under any such Act);and the references to that Act are to that Act as it has effect on the date on which this paragraph comes into force.””

[Lord Wallace of Tankerness]

My Lords, this amendment is minor and technical in nature and has been laid following work undertaken with the Scottish Government to clarify the scope of Clause 13. The United Kingdom’s intended policy remains unchanged; we have always said that while we intend to re-reserve the regulation of health professions to Westminster, the regulation of social care professions should remain a devolved matter within the legislative competence of the Scottish Parliament. Likewise, the Scottish Government’s position on Clause 13 remains unchanged. They remain opposed in principle to the re-reservation of the regulation of health professions.

To give some background, health profession regulation is currently reserved by reference to specific Acts of Parliament, all of which were obviously in place when the 1998 legislation went through. Other health professions have been subject to regulation under subsequent statutes. Under the architecture of the 1998 Act they would not have been caught up in this. A considerable number of bodies made representations to the Calman commission that this was an unsatisfactory position, which is what we sought to address.

Despite the differing policy positions of the United Kingdom and Scottish Governments on the clause generally, this amendment clarifies the intent behind the clause and is an example of where we have listened to the technical concerns, which the Scottish Government have raised, and have sought to act on them. The Scottish Government’s concern was that, as originally drafted, Clause 13 might have an unintended consequence for the social care professions that might in the future become regulated by the Scottish Parliament under the Regulation of Care (Scotland) Act 2001 or a successor Act. The concern was that the regulation of these new social care professions would fall within the scope of the new re-reservation, which is not the United Kingdom Government’s intention.

This minor and technical amendment makes it explicit that regulation of the social care professions is, and will remain, a matter that is devolved to Scotland. I hope that that clarifies this amendment. I beg to move.

[Lord Boyd of Duncansby]

My Lords, we welcome the clarification that this amendment gives to this clause. It was never the Calman commission’s intention that the regulation of residential care workers should be reserved as opposed to health professionals. Perhaps I may add to the background. The Calman commission received evidence from the royal colleges, which are concerned at the possible fragmentation of standards as a result of the Scottish Parliament on the one hand and the UK Parliament on the other having responsibility for the regulation of health professionals. Common standards for health professionals are of evident benefit to the UK as a whole, and the Government’s implementation of this recommendation is to be welcomed.

On a final point, the re-reservation of powers to the UK Parliament in this case is a signal that devolution is about finding the right balance between the powers that sit with the UK Parliament and those that sit properly with the Scottish Parliament. It is important that we get a system that works well not only for the people of Scotland but for the people of the UK as a whole.

--- Later in debate ---

[Lord Boyd of Duncansby]

The question that I was going to pose was why we did not extend the ban on smoking in public places to Antarctica. Clearly, that was an oversight on our part. We could also have extended the scheme for insulation of older persons’ homes, which was one of the then Scottish Executive’s schemes. Of course, we are now spared the question as to whether the referendum on independence should also extend to Antarctica. The noble Duke, the Duke of Montrose, has pointed out that if independence was ever to come, the First Minister would not have to consider whether to expand his navy by adding an ice-breaker to it. We fully support the clause.

[Lord Wallace of Tankerness]

My Lords, I am grateful to my noble friend the Duke of Montrose for giving us the opportunity to discuss this matter and to all those who have welcomed this clause. I join my noble friends the Duke of Montrose and Lord Forsyth in saluting Captain Scott and his four fellow adventurers who on 17 January 1912 reached the South Pole. We are all conscious that theirs was a long struggle that ended very sadly, but, nevertheless, 100 years on, we remember the extraordinary feat of those explorers. I also join those who have paid tribute to and saluted my noble friend Lord Forsyth for climbing Mount Vinson last year. We all remember getting the reports and his managing to raise substantial funds both for Marie Curie Cancer Care and Children in Need India.

If the former First Minister knew that he had responsibilities for Antarctica, it is clear that he was not advised on it by his senior law officer, and he certainly did not share the fact with his Deputy First Minister.

My noble friend the Duke of Montrose asked about the draft Antarctic Bill. It was in the context of preparing for that draft Bill that it became apparent that, while outer space had been reserved, Antarctica had not. No doubt the noble Lord, Lord Sewel, will tell us why that was the case.

[Lord Sewel]

Does the Minister agree that it is a disgrace that, because of the incompetence of Ministers in 1998, we have had to re-reserve Antarctica, which is now finishing up where it belongs?

--- Later in debate ---

[Lord Wallace of Tankerness]

It was oversight, I suspect, but it is important that we now address it. Following completion of the consultation, the Antarctic Bill is drafted subject to minor amendments and is awaiting parliamentary time. There would have been a clause in that Bill seeking to resolve the devolution issues, but, as this Bill is now before Parliament, we thought that it was more appropriate to deal with it here.

[Lord Foulkes of Cumnock]

Will the Minister confirm that South Georgia and the South Sandwich Islands are not included in the definition of Antarctica?

[Lord Wallace of Tankerness]

I hesitate, because I recall seeing a definition of Antarctica as being all seas and islands below 60 degrees south. I was assigned to an Antarctic Bill in the House of Commons because I represented islands north of 60 degrees north, which seemed to be interesting logic. I think that, because South Georgia and the South Sandwich Islands are British Overseas Territories, they are not included in the definition—perhaps I will receive some clarification on that.

[Lord Foulkes of Cumnock]

As I understand it, the Falklands are a dependent territory of the United Kingdom and the South Sandwich Islands and South Georgia are dependencies of the Falklands. I presume that they are not included because of that. That is important given recent statements in Argentina and the importance of those two island groups as well as the Falklands.

[Lord Lyell]

Perhaps I may make my first intervention—I am sure that the Minister will be delighted. I have an interest very similar to that of my noble friend the Duke of Montrose in that in the first week, even before events gravitated to the Falkland Islands, great events took place on the island of South Georgia. In the communications with the Royal Marines and the forces there, there was considerable discussion about the Lyell Glacier, named, definitely, after my great-great-great uncle, one of the fathers of modern geology. As far as I am aware, there is no mineral wealth under the Lyell Glacier or anything that I or anybody in Scotland would be able to claim, but the charts and accounts will give us some assistance. It would be very helpful if my noble friend Minister could give us clarification as to what is classified as “Antarctica” for the purposes of the Bill.

[Lord Wallace of Tankerness]

My Lords, for the purposes of the Antarctic Act 1994, which was to implement our international obligations, “Antarctica” means,

“the continent of Antarctica (including all its ice-shelves) … all islands south of 60° South latitude (including all their ice-shelves)”—

so I do remember something from 18 years ago—

“all areas of continental shelf which are adjacent to that continent or those islands and which are south of 60° South latitude, and … all sea and airspace south of 60° South latitude”.

The important point is that these are the areas to which the international obligations, many of which are of an environmental nature, apply. As I have indicated, that became apparent in considering the draft Antarctic Bill.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord Browne of Ladyton]

I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.

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

My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.

As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.

I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.

My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.

Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.

Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.

[Lord Forsyth of Drumlean]

No.

[Lord Wallace of Tankerness]

European Union law could not be changed unilaterally. I know that my noble friend proposes in his amendment how we might address it, but that is not the same as changing European Union law, which I am sure he would be the first to accept.

When the package of free tuition for Scottish domiciled students was introduced in January 2000, my noble friend Lord Stephen—or Mr Nicol Stephen MSP as he then was—as the deputy Minister for Enterprise and Lifelong Learning, indicated that the proposals were produced based on the best advice available given the risk of challenge by other EU nationals. He went on to say that he was disappointed with the legal advice and would like it to be different, but that was the position in terms of having to operate within the confines of European Union law. I would not wish to suggest who gave that advice because I am sure it was sound, but given that we had to operate within the confines of European Union law, that was how we got into that position. Let us not be under any illusion that it was something that the then Scottish Executive did because they wanted to do it. It was because they were obliged to do it.

--- Later in debate ---

[Lord Sutherland of Houndwood]

There is, however, one significant difference. Many of us come from a generation where we had to live at home when we went to university, which I did intermittently for a few hours each night. But that is not a choice available to students going from England to Scotland, so they cannot economise on the cost of university education by making a choice that others can, for example, who live in London.

[Lord Wallace of Tankerness]

They can actually make the choice to go to London and possibly not pay any more or any less.

[Lord Sutherland of Houndwood]

Clearly the choice is driven then purely by financial constraints rather than by educational aspirations.

[Lord Wallace of Tankerness]

I agree and accept that, but we are perhaps kidding ourselves to think that those students in Scotland who chose to go to a university very close to home were not also taking into account financial considerations; albeit that they were fortunate to have so many universities of considerable quality on their doorsteps. If you came from the part of Scotland that I came from, nowhere was on the doorstep. I pay particular tribute to my noble friend Lord Forsyth for what he did when he was Secretary of State for Scotland in giving an impetus to the idea of the University of the Highlands and Islands, which, as my noble friend Lord Maclennan has indicated, has now come to fruition. It has taken a somewhat long time but it was worth it. I know how keen he was on it. It has made higher education available on the doorsteps of many people who otherwise would not have had that opportunity.

I never particularly like, and do not think this debate lends itself to, technical issues, but the amendment from the noble Lord, Lord Foulkes, is deficient in a number of ways. It reserves to the UK Parliament the power to make variations in fee levels between different parts of the United Kingdom. I am sure that it is not really quite what he was intending. I acknowledge and appreciate that my noble friend Lord Forsyth has sought to couch this in a way that is more related to an issue of principle rather than focusing on tuition fees. However, as the noble Lord, Lord Browne, pointed out, with the possible exception of rights of audience, you would be hard pushed to actually think of any other circumstance where this principle might arise. I will clarify the position on rights of audience. I clearly recall that it certainly was the case. I know of many practising advocates now at the Scottish Bar who are also at the English Bar—and some, indeed, at the Northern Ireland Bar—as well as some solicitors trained in Scotland who now work in firms in England. It does seem easier at a practical level to go between jurisdictions than it was hitherto. The point of my noble friend’s amendment is very much focused on tuition fees, which he did not attempt to disguise in speaking to his amendment.

However, one should always be aware of the law of unintended consequences. One possible consequence of his amendment is that the Scottish Government could address this by paying the tuition fees of every student from England, Wales and Northern Ireland. My noble friend says that would be fine. Obviously it could be budgeted and other things would have to give way to fund that. However, it would suddenly mean that it would be hugely cheaper for students from England, Wales and Northern Ireland to attend universities in Scotland. My noble friend says that is ridiculous, but of course that would be the consequence.

[Lord Forsyth of Drumlean]

That is the position for Greeks, German, French, Italians and everybody else in Europe—that it is considerably cheaper for them to come to Scotland, where they get a free education relative to England. It is a ridiculous argument.

[Lord Wallace of Tankerness]

It is not a ridiculous argument at all, because it is very difficult if you are a student coming from Greece, where English might not necessarily be the language in which you would more readily study. It is far simpler if you are coming from Carlisle to go to Edinburgh than it would be to go to Birmingham. I can assure my noble friend that when tuition fees were increased in England and variable fees were brought in, in around 2004, there was clear evidence—which I was presented with as the then Minister with responsibility for higher and further education—that that would have a considerable impact on cross-border flow, and that was something that we had to address. Indeed, we did address it.

[Lord Flight]

I point out to the Minister that Ireland charges extremely low tuition fees at universities. This has not led to a huge increase in the number of British students going to Irish universities.

[Lord Wallace of Tankerness]

The point I was making was that there was clear evidence, which we were looking at in about 2003 or 2004, in an overall review we did of higher education at that time in Scotland, that a differential where Scotland was much cheaper than England, Wales or Northern Ireland would have a considerable impact. I totally subscribe to what noble Lords have said in this debate—that the essence of many of our universities, the advantage of them and the thing that gives richness to student life, is the fact that you are shoulder to shoulder with people from many different backgrounds, nationalities and cultures. I subscribe to that overwhelmingly. But it is naive in the extreme to think that, if university tuition in Scotland was free for students from England, it would not have some quite material effect on the numbers applying.

[Lord Sutherland of Houndwood]

I thank the noble and learned Lord for giving way and I promise not to intervene again, but there is a further argument in this area that is relevant. If Scotland is not charging fees for students who come from the continent but England is, there will be a displacement of students from continental bases to Scotland. Last time I did a back-of-the-envelope calculation, European Union students were costing Scotland between £80 million and £90 million a year. That could grow as an unintended consequence of the policies. I am not questioning good faith or decisions taken constitutionally in the right way; I am just saying that we really are creating consequences, and that is another one that we ought to look at very carefully.

[Lord Wallace of Tankerness]

I think that actually supports the argument that I was just making—that if the numbers are going up from European Union countries, a fortiori the numbers would increase from other parts of the United Kingdom. That is something that would have to be addressed. I do not think that my noble friend has actually thought that through.

Just as the noble Lord, Lord O’Neill, said to the noble Lord, Lord Browne, that he might have to talk to the leadership of his party before the matter comes back at the next stage, so my noble friend Lord Forsyth said that I should draw this matter to the attention of the Prime Minister and my noble friend Lord Maclennan asked that we think about this before Report stage. I do not think that it would be a service to the House if I did any other than say that obviously we have to reflect on the very strong views that have been expressed in this debate.

[Lord Maclennan of Rogart]

I am grateful to my noble and learned friend for what he has just said, but the principle that my noble friend Lord Forsyth has advocated is one that could conceivably be important—not in the light of our previous experience, because that kind of discrimination has been anathema in the United Kingdom, but in establishing this precedent, which one can see being extended to other spheres. That might include the domicile of people taken into care because of illness in Scotland. If they happened to be domiciled in England, they might be subject to much higher charges, and that by law. There is a very important principle here, which I hope will not be confined just to education, although education is the immediate reason why we need to discuss these things.

[Lord Wallace of Tankerness]

I recognise the principle that my noble friend is enunciating. That is why I said that we do not know what the consequences would be of the amendment proposed by my noble friend Lord Forsyth. It goes right to the heart of the architecture of the Scotland Act—to Section 29, which makes certain legislation not law, as I am sure the noble Lord, Lord Sewel, remembers well from the days of the passage of the Bill in 1998. To add this as a principle of devolution when its possible consequences have not been thought through is something that I would not wish to accede to without much greater thought as to what its implications might be.

I conclude by making that commitment but I also have to conclude with the other principle—the principle of devolution. Inevitably, if you devolve matters, Governments may not choose the course that you would wish to see. It is probably not unfair to say that Mr Tony Blair was not entirely happy when he learnt what the Scottish Government were proposing in 1999 about abolishing tuition fees and bringing back more generous student grants, but he accepted that that was one consequence of devolution. If we pursue a line that has been sometimes advocated today, we run the risk of undermining the purpose of devolution. Differences in policies can develop, and we will not always agree with those differences. But if we constantly fight against the differences and produce ad hoc legislation if something comes up that we do not like—even if we do not like it with a considerable passion—we must do so with great care, because there is a principle of devolution that could be well undermined if we do that.

--- Later in debate ---

[Lord Boyd of Duncansby]

My Lords, I am grateful to my noble friend for tabling the amendment, which was debated in the other place. It seeks to rectify what appears to be an omission from the Scotland Act 1998 and subsequently the Railways Act 2005, which devolved significant powers over the ScotRail franchise, including its funding and licensing as well as responsibility for new rail lines for the network, yet neglected to devolve the power to determine the model of that franchise. Of course, it would not be appropriate to devolve responsibility for cross-border services, but that is not what the amendment seeks to address. It is clear that the amendment relates to services that begin and end in Scotland.

When this matter was debated in another place, as my noble friend indicated, we seemed to get side-tracked—if that is not an inappropriate way of putting it—down a spectre of renationalisation, which was not the purpose of the amendment. The Parliamentary Under-Secretary failed to address the central issue that the amendment poses regarding whether it is consistent with the spirit of the devolution settlement that the power to determine the nature of a discrete Scottish franchise, in relation to which the Scottish Government already have considerable responsibility, should be reserved.

I ask the noble and learned Lord the Minister to say what the position is in Wales and, more fundamentally, why the Government believe it is necessary and proper to retain powers to determine the franchise model of a self-contained Scottish rail service where the franchise is granted by the Scottish Government.

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, gave a fair analysis or description of what his amendment is intended to do. The noble and learned Lord, Lord Boyd, said that this might just be an oversight in the original arrangements. The noble Lord, Lord Foulkes, said that it was too small a matter for the Calman commission. I think that quite a significant change is proposed; it is not a small matter at all. The fact that I do not recall any representation on or consideration of it as part of the Calman commission may say something about whether there is widespread support for it.

The noble and learned Lord, Lord Boyd, asked why legislative competence has not gone hand-in-hand with executive competence. I think I am right to say that executive devolution was not present in the 1998 Act, but was subsequently negotiated between the then Scottish Executive—I think that Mr Henry McLeish took a role in that—and the Labour Government. The agreement reached was one of executive devolution. The Labour Government did not think it right at that stage to extend legislative devolution, and that continues to be the position of this Government. The Government are committed to maintaining a GB-wide national rail network which is publicly specified and funded in the public interest but which is provided by the private sector.

It is important to recognise the substantial executive devolved powers which Scottish Ministers have in relation to railways. They include giving general guidance to the Office of Rail Regulation, giving notice of their requirements for the outputs of the rail network in Scotland and the level of public funding available to the Office of Rail Regulation and publishing a Scottish railway strategy. They also have power to designate, let, fund, manage and enforce Scottish franchises and publish a statement of policy on franchising; to set fares; to publish a code of practice protecting the interests of disabled passengers; to appoint a member of the Passengers’ Council; to give financial assistance to any person for the purpose of developing Scottish railways; and to publish freight grants schemes for Scotland. Indeed, they have considerably more powers than that. Of course, the Scottish Executive have also taken considerable initiatives in building and constructing new railways—my noble friend Lord Mar and Kellie is probably a personal beneficiary of the railway from Stirling to Alloa—so substantial powers are already available.

However, as I said, we believe that devolved powers are best exercised within a coherent GB structure, as provided for under the Railways Acts 1993 and 2005. It is essential that the overall regime for the provision of rail passenger services and their regulation remains a reserved matter. It would not be sensible to run the railway in such a way that the Scottish Parliament through legislative devolution could overturn the framework that governs the operation of passenger services in Great Britain as a whole.

The noble and learned Lord raised the question of Wales. I will certainly confirm the position, but the fact that we wish to keep a GB structure means that there is no legislative devolution to the Welsh Assembly.

[Lord Foulkes of Cumnock]

What I am proposing would not overturn the structure of the railways in Great Britain as a whole, as the Minister just said, but is merely filling a little gap in the model, the kind of franchise that can be agreed by the Scottish Executive and the Scottish Parliament. It is a small but important addition and it would not disturb the rest of the railways in the United Kingdom. I hope that he will give it some serious consideration.

[Lord Wallace of Tankerness]

I think it would, if we take it that GB includes Scotland. If Scotland could have a different model from that operating in the rest of Great Britain, that would amount to a material change. We believe that the right balance is in place. It was a balance struck not by this Administration but by the previous one, and not just as part of the original legislation but as one for which specific consideration was given for a Section 30 order. The arrangement struck the right balance and I urge the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

On every previous occasion, I have said that I am really grateful to the Minister for listening carefully to the arguments and being sympathetic, accepting some of the arguments and going away and looking at the amendment. In this case, I am disappointed. I could have gone on at much greater length arguing the case, but I have some concern for my noble friends the eminent lawyers from Scotland and we need to get on to the issue of the Supreme Court. However, this is an important issue. The trade unions feel strongly about it. I know that the Scottish Government would welcome this change. It seemed to have some support in the House of Commons, and would be a coherent arrangement.

The noble Earl, Lord Mar and Kellie, is a very quietly spoken Member of this House and always speaks exceptionally briefly, but in this case his point was really quite a remarkable Exocet. In his brilliant intervention, he said that whereas there could be no public ownership so far as Britain was concerned, in relation to United Kingdom interests, French, German or Dutch railways—all three are publicly owned—would have no problem at all in buying into and taking over this franchise. That is a serious anomaly. It might be best to have some kind of United Kingdom or Scottish structure different from the current ScotRail structure to deal with it. I hope that the Minister will give further consideration to this between now and Report so that we can avoid a rather longer debate then. Nevertheless, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Sewel, for introducing this issue. I take the point he made that the pegs on which he hangs it are perhaps not details that he wishes to address. Rather he wishes to open up the wider issue of energy policy and, more specifically, nuclear energy policy with regard to the devolution settlement.

That said, it is important to note that decommissioning gives rise to important issues regarding substantial amounts of nuclear waste. We do well to remember that decommissioning the civil nuclear legacy and managing the radioactive waste produced as a result is a joint project across the UK, and the Nuclear Decommissioning Authority reports to both Scottish and UK Ministers, although it is funded centrally by the UK Government through DECC. There have been good working relationships on that point.

The noble Lord, Lord Sewel, raised the more general question about energy policy. The balance that has been struck, with the United Kingdom in the driving seat with regard to UK energy policy, is one that we endorse. The Calman commission received a number of representations on these issues and indicated that it believed that a UK-wide approach is essential to ensure a continuing national supply, that international targets and obligations are met and that consumers have access to a competitive and modern energy market. It concluded that the current arrangements remain appropriate and provide a balance between powers appropriately exercised at devolved and reserved levels, although it encouraged proper engagement between the two Governments.

The UK nuclear energy policy has been set out in the national policy statement EN6, which was ratified in 2011. I am grateful that my noble friend the Minister at DECC is in his place. He will, no doubt, correct me if I get any of this wrong. This national policy statement provides for enough sites across the United Kingdom for a significant build programme going forward for new nuclear sites. I do not know the detail of the extension times for currently operational nuclear power stations. Scotland currently has five nuclear power stations, three of which are in the process of being decommissioned—Hunterston A, Dounreay and Chapelcross—and two are still operational—Hunterston B and Torness. There is also an MoD site, as my noble friend Lord Maclennan will know, the Vulcan Naval Reactor Test Establishment adjacent to Dounreay, which ran a test reactor for the nuclear submarine programme. I will get confirmation to the noble Lord, Lord Browne, about the remaining lifetime of those plants.

I think it is fair to say that the noble Lord perceives that there may be some inconsistency in the view taken by the Scottish Government with regard to extension as opposed to their stated view with regard to new build.

[Lord O'Neill of Clackmannan]

I may be of some small assistance here. It is my understanding that life extension would be the responsibility of the Nuclear Installations Inspectorate. A safety case has to be advanced. Were that to have construction implications that required planning, that might cause a wee bit of a problem, but the basic case has to be satisfactory in the eyes of the Nuclear Installations Inspectorate.

[Lord Wallace of Tankerness]

I am sure the noble Lord is absolutely right. At the core of this—maybe not the right word—at the heart of it is the safety case, which would be determined by the independent Nuclear Installations Inspectorate. The noble Lord raised the point, which we will come on to, about other issues leading to issues about planning. It is not only planning because in 1999 there was executive devolution that transferred to Scottish Ministers powers under Section 36 of the Electricity Act with regard to giving permission for power stations in excess of 50 megawatts, and that would include any future nuclear power stations.

I perhaps interpret the concerns to include how that would operate. To be fair, more generally in planning it probably makes sense to have planning powers. In the debate on the then Scotland Bill, the noble Lord, Lord Sewel, said that,

“an Act of the Scottish parliament containing provisions about water pollution from coal-mines or dust from open-cast coal-mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish parliament. This would make a nonsense of the devolution of pollution control”.—[Official Report, 21/7/98; col. 819.]

There is some good sense that there should be planning considerations.

I should also perhaps draw to the attention of the Committee a decision in the Outer House, Court of Session, last year by Lord McEwan in a petition of Dulce Packard and others for judicial review. He said:

“The best guidance is the Lewis case (the mixed redevelopment at Redcar on Teesside). It is quite clear from the case that the Minister’s position is quite different from someone holding a judicial or quasi judicial office. All the Minister has to do is to consider genuinely the inquiry report and the objections”.

Clearly, we have not yet had any application. But he went on to quote from the Lewis case and the judgment of Lord Justice Rix.

“So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question”.

It would be wrong to speculate what would happen if any company applied for planning permission and was turned down. It is a high test, which I think Lord McEwan made clear. Nevertheless, he went on to say that the,

“test is applicable, the fair minded and informed observer must be taken to appreciate that predisposition is not predetermination”.

But evidence of predetermination might be relevant.

I had better stop there because one never knows when one might find oneself having to go down that path. In saying this, I hope I can give some assurance that the Government believe that the balance in the Scotland Act is right. As I have indicated, the national policy statement, which was ratified last year, provides for enough sites across the United Kingdom for a sufficient build programme going forward for nuclear sites. With these remarks, I hope the noble Lord feels that he has probed successfully. I am afraid that we have taken twice 12 minutes, but it has been a useful debate and I hope that he will withdraw his amendment.

[Lord Sewel]

I thank all noble Lords who have contributed. In reply to a point made earlier, I am not advocating a nuclear power policy for Scotland. I am advocating a British energy policy to deal with the issue of energy security. It cannot be done at the level of the individual component parts of Great Britain. We need to work together to have a policy covering the whole country.

I think that we are very reluctant to go too far on the planning point. But the noble and learned Lord will remember that the vires test in the 1998 Bill that left the House of Commons was not the same as the vires test that became the Act. Let me put it this way: that change was in part as a result of discussions that were very close to the type of discussion that we have had today. I beg leave to withdraw the amendment.

--- Later in debate ---

Unfortunately, we have a grouping with a vast number of amendments, including the particular matters I have dealt with. In the mean time, in order to get Clause 17 out of the way and be sure that we are going ahead with Amendments 71 to 72K, I should sit down for the moment but come back to deal in detail with the particular matters that arise separately. I ask that this clause should not stand part.

[Lord Wallace of Tankerness]

For the convenience of the Committee, I will just explain why we are supporting the proposal that the clause should not stand part and speak to the amendments that are in my name, to which the noble and learned Lord, Lord McCluskey, has proposed his own amendments. That might help some of the structure of the debate.

I start by thanking the noble and learned Lord for the way he introduced this issue and gave a very fair explanation as to how we got here via the judicial representations to the Calman commission, the expert group that I set up under the chairmanship of Sir David Edward, and the subsequent group, to which the First Minister appointed the noble and learned Lord to look at this issue. It is perhaps rare that legal issues get quite as much public prominence as these have had, but there are important issues here. The purpose of Clause 17 was to provide that questions as to whether acts of the Lord Advocate, acting as the head of the criminal prosecution service, were compatible with ECHR or EU law should not be devolution issues under the 1998 Act. Clause 17 provided a separate statutory right of appeal to the Supreme Court for these issues. Under the current Scotland Act, acts of the Lord Advocate acting as the head of the criminal prosecution system in Scotland that are not compatible with ECHR or EU law would be ultra vires by virtue of Section 57(2) of the Scotland Act 1998.

In order to take account of some of the recommendations from the committee chaired by the noble and learned Lord, we thought it better to seek to delete Clause 17 and bring forward new clauses, otherwise it was going to get very difficult and convoluted indeed. In doing so, as the noble and learned Lord pointed out, we have in fact taken on board the point about the Criminal Procedure (Scotland) Act 1995. Many of the things we are doing seek to amend that.

The debate on Clause 17 and the issues that it raises has come a long way. Certainly during the summer there was a lot of heat, if not necessarily light, about the role of the Supreme Court in these matters. The finding in one of the main recommendations of the group under the noble and learned Lord, Lord McCluskey, that it was right and proper to retain appeal to the Supreme Court, allowed us to try to find a way forward that could command as much consensus as possible. There has been progress, and that progress and the fact that we have reached so many areas of agreement has been achieved by open dialogue, proper consultation and mature consideration on all sides. It is certainly in that spirit that I will consider the arguments that are made by noble Lords contributing to the debate this afternoon.

--- Later in debate ---

[Lord McCluskey]

On a point of order, I understood from our grouping notice this morning that we were going to discuss not just clause 17 stand part but Amendments 71 and 72 by the Advocate-General and the amendments to those amendments standing in my name.

[Lord Wallace of Tankerness]

My Lords, if I can assist here, my understanding is the same as that of the noble and learned Lord, Lord McCluskey. I think that I said when I opened my remarks setting out my amendments that I was seeking not to wind up the debate but, if anything, to open it. There are important issues to be discussed, if it is possible to rewind so that we can have a debate on the amendments. There is an agreement that clause stand part should not take place.

--- Later in debate ---

[Lord McCluskey]

My Lords, I am very grateful to the authorities and the noble Lord in the Chair in connection with this matter. I think we should deal with the amendments but I wonder whether the noble and learned Lord the Advocate-General would like to deal with Amendment 71 before I deal with the amendments to that amendment. Would that not be the proper way to proceed?

[Lord Wallace of Tankerness]

My Lords, obviously, I am not formally moving the relevant amendments because we have not yet come to them but I think that I tried to deal with the content and the structure which we wished to achieve through the amendments. Although I cannot formally move them yet, I think that I have spoken to the substance of them and it might take the debate forward if the noble and learned Lord now makes his response.

[Lord McCluskey]

My Lords, I am perfectly happy to do that. Amendment 71A, which stands in my name, refers to line 11 of government Amendment 71 and proposes to insert the words,

“in the course of criminal proceedings”.

I want to emphasise that we are generally happy with the approach of Amendment 71: at least I am because I am happy that it deals with the Criminal Procedure (Scotland) Act 1995 rather than the 1998 Act—a point which I made earlier. However, the heading of the new clause, which is in bold on the Marshalled List, states:

“Convention rights and EU law: role of Advocate General in relation to criminal proceedings”.

First, I accept that we should deal with EU law as well as ECHR law, although our report did not find it necessary to go into that matter at all. This relates to criminal proceedings. The whole point is that Amendment 71 relates to the Criminal Procedure (Scotland) Act 1995, and we are making provisions in subsection (3) on:

“Right of Advocate General to take part in proceedings”.

I believe that that should read, “take part in criminal proceedings”, for a reason that I shall come to shortly. The provision states, in terms, that:

“The Advocate General … may take part as a party in criminal proceedings so far as they relate to a compatibility issue”.

The compatibility issue is defined here for the purposes of all the proposed new sections, including those that I am proposing.

Subsection (2) of proposed new Section 288ZA states:

“In this section ‘compatibility issue’ means a question whether a public authority has acted (or proposes to act)”

in the way specified in proposed new paragraphs (a) and (b). Again, we ought, for clarity to insert the words, “in the course of criminal proceedings”. They merely add something that is perfectly obvious, but they have a bearing on the important issue as to whether or not questions arising in criminal proceedings might be treated as vires issues in the way mentioned by the noble and learned Lord when he was speaking a moment ago.

Therefore, my next amendment proposes to insert after “whether”:

“an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is outside the legislative competence of the Parliament as being incompatible”.

This is an important issue because the Advocate-General has very properly decided that there should be an amendment to paragraph 1 of Schedule 6 to the 1998 Act. That change appears in the new clause proposed in Amendment 72. Subsection (3) states:

“In paragraph 1 of Schedule 6 …after sub-paragraph (f) insert—‘But a question arising in criminal proceedings in Scotland is not a devolution issue if it is a compatibility issue within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act”.

When one looks at that provision in subsection (2) of the new section proposed in Amendment 71, we find that a compatibility issue includes,

“whether a public authority has acted (or proposes to act) … in a way which is made unlawful by section 6(1)”.

I may be wrong about this, and I hope to hear the noble and learned Lord’s reply, but if a Member of the Scottish Parliament—particularly a Member of the Government—proposes a Bill in the Scottish Parliament that will breach a convention right, as specified in Section 6(1) of the Human Rights Act 1998, that is unlawful. Therefore, under the proposed new clause in Amendment 72, from which I quoted a moment ago, a question arising in criminal proceedings is not a devolution issue, if it is a compatibility issue within that meaning. The result is, I think—although I may be wrong, because this is difficult to follow—that if, in the course of a criminal trial, assuming that the noble and learned Lord’s amendments on these matters are accepted, a person states, “The Act under which I have prosecuted or which has a bearing upon the prosecution is beyond the competence of the Parliament”, it will instantly become a compatibility issue that is not a devolution issue. Therefore, the alternative route of using the vires provisions under Schedule 6, to which the Advocate-General refers, will not be available to anyone. In other words, there is only one route to take, which is what I want to happen.

On 17 January, the Advocate-General said to me in a letter, and repeated today:

“I am not minded to accept the Lord Advocate’s suggestion”—

a suggestion made by the Lord Advocate before the committee at which I spoke—

“that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with ECHR or EU law. The suggestion would mean that if someone wishes to argue that an ASP is incompatible with the ECHR and that it also relates to reserved matters they would need to use the new appeal route in relation to the ECHR issue as well as the existing devolution issues appeal route”.

I think that his amendments knocked out the devolution issue and have given us what we want, but I would be interested to hear his view on that and whether there has been some confusion on the matter.

The other amendment which I should mention in this context bears on proposed new Section 288ZA in Amendment 71, where I propose to add in subsection (2),

“references to the course of criminal proceedings are to the period beginning with the detention or arrest of a person for an offence and ending with the pronouncing of the final interlocutor”.

The reason for that highly technical amendment is that it is possible that, before a person is detained or arrested, there might be by a public authority—whether the police or the BBC, for example—an invasion of his human right to a fair trial by saying things about the accused even before he is detained. We may need to look at that separately, but the amendment draws attention to the fact that there ought to be a definition as to when criminal proceedings begin in the Act, so as to leave it in no doubt. There have been difficult questions in past cases about when a person is charged, when he is detained, et cetera. Those words themselves are not crystal clear, but I want to make it crystal clear when criminal proceedings begin and when, for the purposes of compatibility issues, they end. That matter is covered by my Amendments 71A to 71C, which draw attention to what I think are problems arising from the framing of Amendment 71, which proposes the new clause.

--- Later in debate ---

[Lord Maclennan of Rogart]

It may be regarded as something of an impertinence for one who is not a Scots lawyer to intervene in such a debate and I therefore propose to confine my remarks. I hope that when we do come back to this, there will be a jury as well as judges sitting, and that we may hear the voice of the man in the street on this matter. Speaking with the view of the man in the street, I am bound to say that I find the Government’s position on this, and the views expressed by the noble and learned Lords, Lord Cullen and Lord Cameron, persuasive. It seems to me that the prime consideration is not whether or not the trial can be completed quickly, but whether or not justice is done. Those who are charged with an offence should have the right of appeal considered, unrelated to whether or not the issue is of public importance. It is of direct importance to the individuals involved in the trial. I may be completely off beam, and I recognise the risk of intervening in such a debate, but having listened to most of the arguments, I found them compelling, particularly on the side of the noble and learned Lord, Lord Cullen.

[Lord Wallace of Tankerness]

My Lords, first of all I thank all the noble Lords—noble and learned Lords—who have taken part. We may be small in number, but we have two former Lord Advocates, a former Solicitor-General and Senator of the College of Justice, and a former Lord Justice General. The experience that has been brought to bear on the issues has been quite considerable. We even have a member of the jury in my noble friend Lord Maclennan.

In retrospect it would have been easier if we could have had a more focused debate, but it is quite clear that we are going to return to this matter on Report and I certainly take on board the points that have been made. The grouping was intended to allow for a full discussion on this issue and all the different points in relation to it. I will certainly give consideration, through the usual channels, as to how we might group the amendments on Report so that we have some quite focused debate, particularly on the point of certification, which is possibly the most important point at issue.

I will come on to certification in a moment, but will briefly respond to some of the other points raised, particularly by the noble and learned Lord, Lord McCluskey. He indicated that he had tabled Amendment 71A to insert the words,

“in the course of criminal proceedings”.

The amendment amends the proposed new Section 288ZA(2) to do this. We believe that our amendment inserting Section 288ZA(1) makes clear that the new appeal route only arises in the context of criminal proceedings, but I did listen to what the noble and learned Lord said. There may be some ambiguity or lack of sufficient clarity, and I will certainly want to look at this. I have looked at drafts at various times and I do accept that it is sometimes difficult when you are trying to import things into a different Act to make sure that it is right. I will look at the particular point that he raised there.

With regard to the noble and learned Lord’s point about defining “criminal proceedings”, the term “criminal proceedings” is already used in the Criminal Procedure (Scotland) Act 1995, and we are therefore content that no definition is required. Indeed, inserting a definition just in relation to these particular provisions may inadvertently cast doubt on the meaning of the term when it is applied to other provisions of the 1995 Act. Therefore, to ensure consistency throughout the Act, we felt that particular amendment would not be necessary.

The noble and learned Lord, Lord McCluskey, asked whether there would be a compatibility issue if an Act of the Scottish Parliament was introduced by an MSP in breach of Article 6. It is important to point out that introducing legislation in itself does not change the law and would not be incompatible with the convention. It is only when the Bill is passed that the issue of a possible breach of Section 29 of the Scotland Act would arise. At that point, a challenge to an Act of the Scottish Parliament would be a devolution issue. However, I think that the noble and learned Lord, Lord Boyd, indicated that we had made it clear—and the noble and learned Lord, Lord McCluskey, read out from the letter that I sent to him last month—and it is certainly clear that it is the Government’s intention that issues that arise in respect of Acts of the Scottish Parliament over whether they are compatible or within competence, under Section 29 of the Scotland Act, should be treated as devolution issues. They should use the procedures that currently exist for devolution issues and should not go down a route for compatibility issues. Indeed, my concern was that you could have some parts going down a devolution issue and some going down a compatibility issue. That is certainly our intention; I will look carefully at these amendments as drafted to make sure that proper effect is given to that intention and that an unintended ambiguity has not arisen.

The noble and learned Lord, Lord McCluskey, also raised the question of time limits. The reason for the exception here was not without precedent—and I think that there was agreement generally that the time limits should be there. Section 7(5) of the Human Rights Act 1998 provides that proceedings alleging that a public authority has acted unlawfully by virtue of Section 6(1) of the Human Rights Act must be brought within a year of the alleged unlawful act. However, this time limit can be extended if the court or tribunal considers it equitable having regard to all the circumstances.

In a case reported last year, R (Cockburn) v the Secretary of State for Health, the court considered it equitable to extend the time limit under Section 7(5) because the claim raised a matter of public importance, and it was not suggested that the delay had not caused hardship to the defendant or to third parties or was detrimental to good administration. This is to give discretion to the courts when it may be that this is how justice can be done in circumstances where no one is necessarily at fault and permission was not sought in the time limit specified in the amendment.

The other point related to the point raised by the noble and learned Lord, Lord McCluskey, about the Lord Advocate or Advocate-General being able to refer a matter to the Supreme Court. This is an issue which I have certainly given careful consideration to, and I readily accept that there are good arguments on both sides. There is the argument, as the noble and learned Lord indicated, that a lot of cases might be backing up when one decision is needed to resolve a whole host of cases. On the other hand, as I indicated when I spoke earlier, the advantage of the trial having been completed, and the Supreme Court having the advantage of the case having been given consideration by the High Court of Justiciary, is something that is of importance. However, I will reflect again on that. I have done so many times, and there are important issues here.

[Lord McCluskey]

I have not had a chance to check, but I have a recollection that the Attorney-General in England intervened to have a case taken to the Supreme Court earlier, but I am not sure about that. Perhaps the noble and learned Lord could deal with that on another occasion, if he is not able to do so today.

[Lord Wallace of Tankerness]

Indeed, I can confirm that the Lord Advocate has referred cases directly to the Supreme Court; the so-called “sons of Cadder” cases were on references by the Lord Advocate to the Supreme Court within the last 12 months. So it clearly has been done. Those were cases clearly where there was a wish to get clarity in some of the implications of the original Cadder judgment. So there are certainly good arguments as to why that should be there, and ones that I am certainly prepared to listen to further.

[Lord Boyd of Duncansby]

I referred a case about the independence of justices of the peace, for the very reason to which the noble and learned Lord, Lord McCluskey, referred—because of the importance in getting clarity at an early stage so that the system as a whole did not seize up.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord, Lord Boyd, for that because there are arguments there and I will give further reflection to them.

A good number of issues have been aired on certification. I am grateful to the noble and learned Lords, Lord Cullen, Lord Cameron of Lochbroom and Lord Boyd of Duncansby, who indicated on certification that although there have been issues against it, in fact the case that the Government have sought to make against certification can be justified on a number of grounds. It is right, as a number of your Lordships have indicated, that we are not comparing like with like. As I indicated in my opening remarks, in England and Wales the whole criminal justice system of substantive criminal law and criminal procedure is the potential subject matter of appeals to the Supreme Court, whereas here we are dealing with what are essentially constitutional issues that arise in the context of a criminal case—namely, convention compliance or European Union laws.

Also, as I indicated before, the original justification for certification was very much administrative. It was an Administration of Justice Act in which it was introduced, to ensure that there was not a great flood of cases. I believe that it was brought in not for any reason of jurisprudence—as the quotes from the then Lord Chancellor, Viscount Kilmuir, suggest—but as an administrative break. Again, not least because of the representations which we have received from the Lord Justice General, we will treat these matters very sensitively and seriously, giving proper weight to the arguments that have been advanced again. It would be fair to say that the arguments advanced in the course of your Lordships’ debate this evening have not really prompted me to change my mind on this, but no doubt these matters will be returned to.

I am grateful to the noble and learned Lord, Lord McCluskey, for giving us a focus for some of the debates which we have had, and I very much hope that on Report—

[Lord McCluskey]

I want to reiterate that I regret that because of the way the amendments were grouped, the debate was not able to take the coherent form which all of us wanted. Certainly, I am not satisfied with the manner in which I was able to present the individual arguments on the separable points. However, I am very grateful to the noble and learned Lord for indicating that one way or another we will be able, when we return to this matter more maturely on Report, to look at the remaining issues that will be outstanding—because they are not all going to be raised again—and deal with them coherently and finally at that stage.

[Lord Wallace of Tankerness]

I concur with the noble and learned Lord and perhaps we will have a bigger attendance, although that should not in any way diminish the quality of the contributions we have had this evening, because these are important issues. With these words, perhaps we can confirm that Clause 17 will not stand part of the Bill.

[The Lord Speaker (Baroness D'Souza)]

My Lords, for the avoidance of doubt the Question is that Clause 17 stand part of the Bill. As many as are of that opinion will say Content; the contrary Not-Content.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Thursday 26th January 2012 Lords Chamber

Considering the way in which the Scottish National Party and Administration seem to dress up their intentions in bland language, finessing the difficult areas, should put us on our guard. That is why, when we see that the very first clause of the Bill proposes to hand more controls over parliamentary elections to the Scottish Administration, I ask my noble friend to reassure me on all that and to bear in mind that it is through the prism of the nationalist approach in the Scottish Parliament that this clause, and indeed the whole Bill, should be considered.

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

My Lords, I thank the noble Lord, Lord Browne, for using the clause stand part debate to allow us to explore and examine what is intended by this clause and, indeed, what is not intended. I also thank my noble friend Lord Lang. I assure him that it was not my intent to try to stop him speaking. I think he knows full well that we genuinely expected the previous debate to be somewhat shorter than was the case. He is absolutely right to say that it was good that we started with a lengthy but very good debate which allowed numerous views to be expressed. It may well facilitate our consideration of these clauses.

This clause transfers to Scottish Ministers certain of the executive functions that are currently the responsibility of the Secretary of State relating to the administration of Scottish Parliament elections. It will enable Scottish Ministers to make general provision by order for the conduct and administration of elections to the Scottish Parliament, the questioning of such an election and the consequences of irregularities. The noble Lord, Lord Browne, asked me to be more specific about what the powers confer and what continues to be reserved. In the same spirit, my noble friend Lord Lang asked for some reassurances. As I have indicated, the Bill will transfer to Scottish Ministers some of the executive functions that are currently the responsibility of the Secretary of State. There is no corresponding widening of the legislative competence of the Scottish Parliament although, obviously, it will have a role in approving the subordinate legislation made by Scottish Ministers. So it is executive devolution rather than legislative devolution.

Specifically, Scottish Ministers will be able to make provision by order as to the conduct of Scottish Parliament elections, the questioning of such an election and the consequences of irregularities. This power includes making provision about the supply or otherwise dealing with the electoral register, the combination of Scottish Parliament elections with other elections falling within the legislative competence of the Scottish Parliament—the most obvious one being local authority elections—as well as the limitation of candidates’ election expenses. However, elements of the powers will remain the function of the Secretary of State: the franchise and the combining of Scottish Parliament polls with polls at other reserved elections. This will ensure that issues of constitutional importance continue to be dealt with by the UK Parliament.

I hope that reassures my noble friend that, because of its constitutional importance, the franchise will be reserved to the United Kingdom Parliament. He referred to 16 and 17 year-olds being able to vote. Such a situation is purely hypothetical. However, having different franchises for different elections held in a combined poll may not be as anomalous as my noble friend thinks. If a local election were held in a combined poll with a Westminster election, while he and I would have the ability to vote in local elections we would not be allowed to vote in a Westminster election, so you can already have elections which could be combined on the same day with a different franchise applying in each.

As regards the referendum, I remind my noble friend and, indeed, the Committee that the preference expressed by the United Kingdom Government in our consultation paper was that the franchise of the electorate for any referendum on Scottish independence should be that which applies at the Scottish Parliament elections. That same franchise applied at the 1997 referendum. We take the view that, if it was good enough to elect a Scottish Parliament in May last year, it is appropriate for a referendum.

In addition, the Secretary of State will retain the powers to modify the application of Section 7(1) of the Scotland Act, which sets out the modifications to the calculation of the regional figures which are made when a constituency poll is countermanded or abandoned, and to modify Section 8(7), which sets out what happens when the highest regional figure is the regional figure of two or more parties or individual candidates. This is about the election to the Scottish Parliament rather than an administrative part of it. It is about the election itself. That is why we have considered it appropriate to continue the reservation. The Secretary of State will also retain the power to make provision for the return of members of the Parliament otherwise than at an election.

The B3 reservation—that is, elections to the United Kingdom, European and Scottish Parliaments and the franchise at local government elections in Schedule 5 of the Scotland Act—will remain unchanged. The noble Lord, Lord Browne, asked whether that would lead to the fragmentation which the Gould report raised concerns about with regard to the operation of the 2007 Scottish and local government elections. All responsibilities for the effective conduct of a Scottish Parliament election are being handed over to the Scottish Government. I have indicated the nature of the functions being retained, which relate to the framework under which those elections are run—for example, the franchise and the electoral registration system—or to the reserved elections such as the parliamentary elections. We believe that the difficulties encountered in 2007 were the result of a unique combination of factors that is not expected to arise again.

It is fair to put on record that the 2011 elections were well administered, notwithstanding the fact that it was a combined poll with the AV referendum. That is to the credit of electoral administrators, who are now better co-ordinated through the electoral management board that both the UK and the Scottish Governments support. If one were to change the rules with regard to electoral registration and devolve that, you could then get fragmentation because you could possibly find yourself with different rules for electoral registration for Scottish parliamentary elections and for Westminster elections. I think we are agreed that, although the franchise may be different for each of these elections, it makes sense to have the one canvass subject to the one set of rules for electoral registration.

The noble Lord, Lord Browne, in referring to the previous report of the Scottish Parliament, asked about disqualification from membership of the Scottish Parliament. Section 15 of the Scotland Act allows Her Majesty to specify, by Order in Council, various office-holders who are disqualified from membership of the Scottish Parliament. At present, Scotland Office Ministers are responsible for preparing the draft legislation and presenting it to Her Majesty in Council, but it must first be approved by the Scottish Parliament. Clause 16 has been added in response to the legislative consent Motion in March last year, and will pass responsibility from Scotland Office to the Scottish Government, although the requirement for approval by the Scottish Parliament will remain.

We believe that devolving the elements of responsibility for the administration of elections as I have outlined is consistent with the Calman commission’s principle that these matters should be decided at a level closest to those affected, unless there are good reasons for determining them at a UK level. I have sought to try and make the distinction in respect of constitutional matters and where, in terms of electoral registration, it makes sense to get consistency across the United Kingdom.

[Lord Sewel]

Perhaps I may make one point. I do not want to keep on bringing the debate back to the present First Minister, but he has made clear over the years his animosity and antipathy towards this House. Would it therefore be possible under the arrangements that have been outlined for the Scottish Parliament to disqualify Peers from being Members of the Scottish Parliament? That would be a great shame because a number of Peers have distinguished themselves as MSPs.

[Lord Wallace of Tankerness]

No, my Lords, that would not be possible, as eligibility matters will remain reserved. I hope that on the basis of what I have indicated—

[Lord Browne of Ladyton]

I am grateful to the noble and learned Lord for giving way. From the way in which his voice changed, I had the sense that he was moving towards a peroration.

I am beginning more clearly to understand this division. I understand the difference between the framework within which the elections are conducted, as opposed to the administration; and I understand the difference that I imposed on this debate between the electoral system and conduct. I should be grateful if the Minister would go through the list that I gave—at some stage, if not now. Perhaps he may write to tell me where at least two of those matters lie. One of them may be straightforward and we will come to an amendment on it shortly, one hopes—the procedure and framework for filling regional MSP vacancies—but where does the abandonment of a constituency poll or notice of it to be countermanded lie? Those two matters concern me and I will ignore the other two. I should just like a reassurance that beyond the list that I gave there are no matters other than those the noble and learned Lord has identified.

[Lord Wallace of Tankerness]

My Lords, I will certainly write to confirm, but I can seek to indicate that the rules regarding the regional list will remain reserved to the Secretary of State. On the abandonment of a poll, my understanding is that the issue in question is not so much with the abandonment of the poll itself but where that leads to a difference in the calculation of the regional vote. It is that calculation that would be affected if there was an abandonment of a poll in a particular constituency. I am seeing nods that I have actually got it right. That is the substance of this reservation. I will confirm that, but I hope that that has been a sufficient explanation to the noble Lord.

Clause 1 agreed.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, in introducing his amendment, the noble Lord, Lord Foulkes, has given us an opportunity to look at a number of the issues that have arisen with regard to the operation of the electoral system. As my noble friend Lord Steel said, when we were legislating in 1998 it was not really possible to foresee all the implications and consequences of it. Therefore, we have had a useful opportunity to highlight a number of the issues and concerns that have arisen.

As the noble Lord, Lord Foulkes, says, Amendment 1 identifies a lacuna, which, to be fair, I am not sure has been highlighted very much in the past. My noble friend Lord Steel pointed out a variation on that with regard to the role of the Presiding Officer, who gets elected on a list basis as opposed to a constituency basis. Perhaps I may add that Mr George Reid did not stand again so the issue did not arise, whereas Mr Alex Fergusson always indicated that he would seek to stand again as a Conservative. No doubt he would have had to win the nomination of the Galloway Conservatives. It may also be said that it would have been open to my noble friend Lord Steel to have sought again to put his name forward in the Liberal Democrat list for Lothian. Although I did not live in Lothian, had I done so I certainly would have voted for him.

The noble Lord, Lord Foulkes, has raised an important point. No doubt with some work he has found an interesting way to address it. As he properly says, currently a seat vacated by an individual candidate who was returned as a regional Member remains vacant until the next general election. The noble Lord proposes that a poll is held across the whole region to select a new Member. Calculations would ensue upon that—he set that out very clearly and I do not propose to repeat it—to identify who would succeed.

The noble Lord is right to point out that a regional seat vacancy has not yet been caused by an independent Member vacating one. I share his view. I bear no ill will towards Mrs Margo MacDonald for being the only independent Member. Not only do I bear her no ill will but I think that everyone who knows her would take the opportunity to wish her well. My experience is that she has always made a very robust and independent contribution to the deliberations of the Scottish Parliament, and long may that continue, although we do not always agree with her.

We should remember that voters continue to be represented by their constituency MSP and several regional MSPs. It is an important issue, which, given that it is novel, I would wish to look at. If we did anything, it would be important that it commanded consensus among all the parties because it is an important part of our electoral system. To commit from the Dispatch Box without having taken proper soundings among all the parties would be inappropriate, but I hope that we can get an opportunity to take soundings to see whether this gap can be plugged, and plugged suitably to take account of the position of a Presiding Officer as well.

The other amendment moved by the noble Lord, Lord Foulkes, would allow candidates to stand for both constituency and regional polls, and both he and my noble friend Lord Steel indicated some discontent from their own experiences with the current system. The noble Lords, Lord Foulkes and Lord Browne, quoted from the Arbuthnott commission, which stated that it was,

“not convinced that there is any evidence to support the claims made regarding these perceived problems. There is no survey evidence to suggest that dual candidacy is an issue for voters, or a disincentive to their participation in the political process. Few of our consultation responses raised dual candidacy as an issue, nor was it raised spontaneously in our focus groups”.

I am certainly aware from my time in the Scottish Parliament that colleagues representing Orkney would find that not many regional list candidates would bother to get that far, although occasionally it was quite useful to have regional-list MSPs in order to pass on some of the more difficult cases. If a constituent was clearly not satisfied with what you had done on their behalf, and you would be surprised if anyone would be able to satisfy them, it was always useful to have another seven MSPs with whom you could share the burden.

That said, this would be a significant change to the system for electing Members of the Scottish Parliament. The question was raised with regard to Wales—my noble friend Lady Randerson and the noble Lord, Lord Wigley, are in their places. My understanding is that objections were raised by three of the four main political parties in Wales when this was brought forward. The noble Lord, Lord Foulkes, asked me to explain why this position arises. In our debate before we went into Committee I was asked at one stage to explain the policy of the Scottish National Party, and now I am being asked to defend the position that was brought about by the previous Labour Administration, of which the noble Lord, Lord Browne, was a most distinguished member. It actually arose from a proposal in the White Paper, Better Governance for Wales, published in June 2005. It is fair to say that there is no reason why the position in Scotland should be the same as that in Wales. There is an automatic assumption that the systems are always going to be the same, but I think it is reasonable to say that there can be variations tailored to suit particular requirements in different parts of the United Kingdom. I do not think it follows that because Wales has not gone down the route, Scotland should not do so either.

The noble Lord, Lord Foulkes, indicated that a later amendment of his would propose a general review of the electoral system. He will be aware that the Government have stated their intention to consider what has been said about a review of the electoral system in the reports of both the Calman commission and the Arbuthnott commission. There is obviously some support for this in some quarters, but it would be possible to take forward such a review only with the full support of the Scottish Parliament as well. The Committee will be aware that quite a number of consultations are under way. The most crucial one at the moment is on the referendum, and in a moment I will deal with the amendment spoken to by the noble Lord, Lord Browne, on the coincidence of election dates. The Government are committed to looking at the issue of fixed-term Parliaments and whether the Scottish Parliament should move to fixed terms. That will generate another consultation. Perhaps this is not the most appropriate and propitious time to start a review of the electoral system, although I repeat that the Government have indicated their intention to consider a response to both Calman and Arbuthnott on that point.

The amendment moved by the noble Lord, Lord Browne, seeks to allow the Scottish Parliament to move the date for parliamentary elections by up to 12 months either way when it falls in the same year as either an early UK general election or a European Parliament general election, so long as the new date is not within six months of either of those elections. He mentioned that when this was debated in the House of Commons, there was more of a focus on the then quite likely coincidence of a Scottish and a Westminster election in 2015. I moved an amendment during the passage of the Fixed-term Parliaments Bill through your Lordships’ House that changed the date of the next Scottish election so that such a clash would not occur. The Government are already committed to carrying out a detailed assessment of the implications of the two elections coinciding on the same day and to consult on the possibility of moving permanently to five-year terms for the Scottish Parliament. We will make a more detailed announcement of our plans in due course.

If any future consultation is in favour of moving the Scottish Parliament to five-year terms, that would solve the problem of a clash with both scheduled UK elections and European parliamentary elections, as all three will then be on five-year cycles scheduled for different years. That said, there will always be a risk that an early UK general election could reintroduce a clash of dates due to the resetting of the parliamentary timetable. However, if there are concerns about that happening, I hope the noble Lord will agree that that would be an important issue to raise in the context of a consultation on moving to a five-year fixed term for the Scottish Parliament, as we intend to do.

We are committed to considering a change to the length of the term of the Scottish Parliament. It is an appropriate concern for the noble Lord to have raised, but I hope he would agree that this Bill is perhaps not the place to deal with it. However, it is germane to the consultation that is about to take place. That would be the appropriate place in which to consider it. In these circumstances, I hope that noble Lords will not press their amendments.

[Lord Foulkes of Cumnock]

My Lords, as always, that was a really helpful reply from the Minister. We are now getting used to helpful replies from the noble and learned Lord, Lord Wallace, for which I am grateful.

I was hoping that he would answer the question which the noble Lord, Lord Evans of Temple Guiting, did not. I was sure that he would have had exactly the same brief from the excellent civil servants the noble Lord, Lord Evans, had, and that it would not be too difficult for him. As it turned out, it was not, so I am grateful to him for explaining it.

As I said in my introduction to the amendment, I am a little equivocal about it anyway. Perhaps I may return the flattery that I received from my noble friend Lord Browne of Ladyton, whom I thank for his kindness. Now one or two people will ask me why they were not invited to the party, by the way; that is the only problem that I have. My noble friend explained extremely well why we should leave it to the political parties and wait for the promised wider review of the electoral system. I understand also that my right honourable friend Mr Peter Hain is suggesting that Wales should move back to first past the post elections for the Welsh Assembly, which seems like a wonderful idea for those of us who are Neanderthal first past the post supporters—so there is even discussion there. Therefore, I shall not press Amendment 16.

I do feel strongly about Amendment 1, because this matter should be sorted out. I am grateful to the Minister for his reply. As I understood it, he said that he would take the matter away and consult other parties, and that if there was some consensus he would come forward with an amendment on Report. He is nodding, so I am not jumping to conclusions. On that basis, I am quite happy to withdraw my amendment.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

3: Clause 3, page 3, line 25, leave out from “powers)” to end of line 34 and insert “after subsection (1) insert—
“(1A) Subsections (2) to (11), except subsection (9), apply also to the power of the Scottish Ministers to make an order under section 12.””

[Lord Wallace of Tankerness]

My Lords, Section 113 of the Scotland Act 1998 makes provision about the scope of subordinate legislation powers in that Act. Clause 3(1) of this Bill amends Section 113 of the 1998 Act so that it also applies to Scottish Ministers’ new powers to make subordinate legislation about the administration of Scottish Parliament elections under Section 12 of the 1998 Act.

The amendment replaces Clause 3(1) with a provision that has the same effect and restructures Section 113. This is intended to make it easier for provisions in this Bill or in future legislation to provide that Section 113 applies in relation to other powers that may subsequently be conferred on Scottish Ministers. I beg to move.

Amendment 3 agreed.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am grateful to my noble friend Lord Steel. I can indeed confirm that he made representations to the Calman commission on this point, not least in the light of his own experience. His proposal was supported by the then Presiding Officer of the Scottish Parliament, Alex Fergusson, and therefore the Government were happy to agree with the Calman commission’s recommendation that there should be greater flexibility in the running of the Scottish Parliament.

My noble friend is also right to point to the other parts of the clause, which gets rid of the restriction that the Presiding Officers and their deputies have to be appointed at the Parliament’s first meeting. This inflexibility caused problems during the last Session, given the very close electoral result. This meant that parties had difficulty in deciding quickly to release one of their members to be Presiding Officer.

My noble friend made comments about the time taken to form coalitions. In 2003, we did so in a more measured way than perhaps in 1999, when we were under greater pressure. However, we did not have the markets waiting on every twist and turn of the coalition negotiations. There are important differences between Westminster and Scotland, although no doubt we all learn lessons from experience. I hope that what we are putting in here will provide additional flexibility in the election of the Presiding Officer. It has been supported by the previous Scotland Bill Committee in the Scottish Parliament, and the current Scotland Bill Committee has also indicated that it is content with this clause.

Clause 4 agreed.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the amendment, which was tabled by the noble Lord, Lord Foulkes, would enable the Scottish Parliament’s standing orders to make provision to ensure that the Parliament would have to sit on at least 30 weeks in each calendar year; that it met on at least three days in each week that it sits; and that it does not adjourn for a period of more than 60 consecutive days. In moving the amendment the noble Lord certainly described some frustrations which I can readily identify with, although we never actually served at the same time in the Scottish Parliament. Although it does not relate to a restriction on back-bench time, I remember one Conservative opposition day when Mr Murdo Fraser was the Conservative spokesman on the economy and enterprise and I was the Enterprise Minister, and the Deputy Presiding Officer announced: “A Conservative debate on the future of Scotland's economy. Mr Murdo Fraser, you have seven minutes”. That did not really seem to give justice to the issue in hand.

That said, when dealing with the internal arrangements of the Scottish Parliament, it is important that we remember the words in the White Paper which the previous Government published when Mr Donald Dewar was Secretary of State for Scotland, in 1997. The White Paper said:

“The Government intend the minimum of legislation to establish the Scottish Parliament; and wherever possible to leave the Scottish Parliament to decide for itself what its procedures should be”.

This Government believe that that statement holds as true today as it did in 1997. The Government do not believe that it is appropriate for the United Kingdom Parliament to place restrictions on the freedom of the Scottish Parliament to administer its own affairs. It is now embedded within our UK constitutional arrangements, and our view is that the Scottish Parliament is capable of making its own changes to procedures as it sees fit.

As the noble Lord, Lord Foulkes, mentioned, on 21 December the Standards, Procedures and Public Appointments Committee of the Scottish Parliament published the phase 1 report of its inquiry into the reform of parliamentary business, which is appropriately entitled Remodelling the Parliamentary Week. I do not know whether that happened as a result of or in spite of this amendment, but as the noble Lord indicated when moving the amendment, it certainly was timely. The committee undertook its inquiry into parliamentary business last September in order to review the Parliament’s procedures and recommend areas for improvement and change. As I indicated, it is a phase 1 report. The aim of the inquiry is to give the Scottish Parliament greater scrutiny and responsiveness to emerging issues of importance to the people of Scotland.

The report makes a number of recommendations. My understanding is that they will soon be debated in the Scottish Parliament and, if agreed, implemented after the Easter Recess. Recommendation 1 states,

“that the sitting patterns of the Parliament should be changed to allow committee meetings to take place on Tuesday, Wednesday and Thursday mornings with Chamber business on those afternoons”.

This would mean that the Parliament will sit for three days a week when it is sitting, which would meet part of what the noble Lord’s amendment aims to do. The report does not make any recommendations on the other two parts of the noble Lord’s amendment—to ensure that the Parliament sits on at least 30 weeks of the calendar year, and not to adjourn for a period of more than 60 consecutive days. However, the report concluded that,

“given the need to protect the”—

respect—

“between the Chamber and committee business, and to protect time for engagement with civic Scotland, the amount of time allocated to each of these priorities at present is broadly correct”.

I have however noted that as the inquiry evolved, it also looked at how the likely addition of new powers and responsibilities proposed in this Bill would need to be taken into account, as further timetabling commitments will need to be made to scrutinise the use of these new powers for the Scottish Government and Parliament. As my noble friend Lord Forsyth indicated in a question, where does the responsibility lie? It is for the standing orders of the Scottish Parliament.

My recollection, though, is that there is also a considerable amount of flexibility. When I was a Member of the Scottish Parliament—more recent Members can correct me—although the normal starting time on a Wednesday, with time for reflection, was 2.30 pm, noble Lords will have realised that yesterday the Parliament managed to sit at 1.35 pm in order for the First Minister to make his statement launching his consultation document, no doubt so that he could then hot-foot it to his appointment with the world’s press at 3 pm in the Great Hall at Edinburgh Castle. I recall other occasions—for example, when it was clear that stage three of the Bill was going to take much longer—when there was flexibility to sit earlier or later.

My noble friend Lord Selkirk asked about the recommendation from the Calman commission regarding the separation of time to allow more time at stage three if new amendments come up, which would engage more stakeholders. I indicate to him that that is obviously a matter for the Scottish Parliament, but I will write to him and other Members of the Committee who are participating in our deliberations to give our understanding of the up-to-date position with regard to the Scottish Parliament’s response to that recommendation.

The Scottish Parliament, now 12 or almost 13 years old, is capable of reviewing its own processes, but we are showing our willingness to look at this issue too. I hope that in those circumstances the noble Lord will feel that the amendment is unnecessary and withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, what surprises me is how the Scottish Parliament in its procedures seems more rigid and in its lack of flexibility seems more sclerotic than even this Chamber, let alone the House of Commons. We have already heard examples from the noble Lord, Lord Stephen, about having less than four minutes to contribute to a debate, which are true. We have heard from the noble Lord, Lord Selkirk, about the recommendations regarding later stages being rushed and civic society not having an opportunity to participate fully, and I have appreciated that as well. The Minister himself said that getting everything in when you are given only seven minutes to talk about the economy is a formidable task.

Under the proposals, all that will happen is that they will meet for three days but only for half a day each, so it is still really effectively only a day and a half. That is not a huge amount extra. Of course it is up to the Scottish Parliament, and I am going to withdraw the amendment on that basis, but, speaking as a member of the public in Scotland rather than a nominated Member here, I would expect that the Scottish Parliament might sit rather more than that and spend rather more time discussing some of the major issues that it has to deal with.

Perhaps we should not be saying this because we are non-elected and they all think of us as Neanderthals. I have been around for an awfully long time; I have just had a birthday, as someone diplomatically pointed out earlier. Perhaps we should not be lecturing the Scottish Parliament, but it is just a wee bit strange that it is not lengthening the times of its plenary sessions a little. I shall leave it at that and withdraw.

--- Later in debate ---

The third is that, whatever the rights or wrongs of the original position of the Scottish Parliament, I very much agree with the noble Lord, Lord Forsyth, that it would be wrong to try to put the genie back in the bottle by now saying, “You can’t discuss what you have been discussing for the last 10 years or so under successive Administrations”. That would be seen very badly in Scotland, so with regret, I cannot support the amendment.

[Lord Wallace of Tankerness]

My Lords, in responding to the amendment moved by the noble Lord, Lord Foulkes, I am very tempted to adopt the argument of the noble and learned Lord, Lord Boyd of Duncansby, who made the case very cogently. Of course, there is a clear distinction in many cases with regard to reserved matters. I am coming to the point raised by my noble friend Lord Sanderson which was picked up by the noble and learned Lord, Lord Boyd, as to what is reserved. It is not just that the genie is out of the bottle but paragraph 2.5 of the White Paper, published in 1997 as a prelude to the referendum and the Scotland Bill and Act states:

“The Scottish Parliament will also be able to examine devolved matters and debate a wide range of issues of interest and concern in Scotland, whether devolved or reserved”.

My recollection of the debates all those years ago was that it was understood that there would be such debates.

I also seem to recall in the early days of the Scottish Parliament, with our fledgling coalition between the Labour Party and the Liberal Democrats, that the Scottish National Party Opposition liked nothing better than to identify a reserved matter at Westminster where the Labour Party and the Liberal Democrats were on opposite sides of the argument. The SNP would wish to debate those Motions to try to drive wedges through the coalition and we usually found some way out, either by having no executive line or by tabling an amendment recognising the position of both parties. After a while the SNP gave up because it realised that it was not having the desired effect of driving a wedge between the coalition partners.

On occasions it will be necessary for the Scottish Parliament to discuss reserved matters when changes have been made that have an impact in Scotland. For example, in November last year the Parliament debated maritime safety and coastguards. I certainly share the view of the noble and learned Lord that it would be allowed if it was making representations to the UK Government. One can imagine many Motions starting with the words, “This Parliament calls on the United Kingdom Government to”, for example, “not allow the Bank of England to become the bank of last resort”, or whatever. It would not require too much ingenuity to do that.

The noble Lord, Lord Foulkes, had ministerial responsibility for international development matters in the previous Administration. While that area was a reserved matter, none the less there was a Scottish interest that was considered legitimate. I pay tribute to the work that was done in the then Scottish Parliament and Executive by the noble Lord, Lord McConnell of Glenscorrodale, in taking forward and developing a relationship between Scotland and Malawi. That was thought all round to be positive and helpful.

The noble Baroness, Lady Liddell, rightly highlighted the difficulties that people sometimes have in not knowing what the relationship is between the Scottish and Westminster Parliaments. They might read things into debates on foreign policy. Therefore, it is important that when people engage in matters of such sensitivity in whatever forum, they do so in a measured and constructive way. I remember—and not just because I took part in it myself—that one of the best debates in the Scottish Parliament was in March 2003, on the eve of the military action in Iraq. The view was that everyone else was talking about it so it would look very odd if the Scottish Parliament did not. There was no line from the Executive because the Labour Party and the Liberal Democrats took different views. It is worth recalling that I moved an amendment on behalf of the Liberal Democrats that opposed intervention in Iraq. Because of the myth that has built up, it is worth remembering that the Scottish Parliament approved military intervention in Iraq in its vote in March 2003, ahead of the event happening. However, by all accounts at the time, it was a good debate.

There will be occasions when there is an interweaving of the issues. My noble friend referred at Second Reading to the question of energy, which is a reserved matter. Renewable energy has been devolved. As the noble and learned Lord, Lord Boyd, indicated, powers under Section 36 of the Electricity Act give Scottish Ministers substantial powers with regard to the licensing of power stations. There is a connection here—even an interconnection—which makes it important that both Parliaments and Governments must co-operate in trying to ensure that, where there is shared responsibility, the issues are properly addressed.

[The Duke of Montrose]

My Lords, perhaps my noble and learned friend could help me. As time has passed and habit has developed, we have found that the Scottish Parliament can discuss anything that it wishes, and express opinions. If something like the amendment of the noble Lord, Lord Foulkes, was passed, it would be limited to things that it wished to refer to this Parliament. Of course, discussion on the question of a referendum is probably something that the Scottish Government could say was referable to this Parliament. My noble and learned friend talked about the resolutions that were passed by the noble Lord, Lord McConnell of Glenscorrodale, on helping Malawi. Is there any limit to the amount of money that the Scottish Government can spend on things that are not devolved? It would be interesting in particular to know how much money they would be allowed to spend on a referendum. My noble and learned friend will know that there is an 80-page Bill attached to the consultative paper that was produced by the Scottish Parliament. It did not just drop out of the sky in a pre-formed manner. A great deal of time and expense was put into it.

[Lord Wallace of Tankerness]

The first thing I will say in response to my noble friend is that this is not something that has just grown up over the years. As I indicated, it was anticipated from the outset—in the White Paper in 1997—that there would be this opportunity. On the specific case of Malawi, there is a provision in the Scotland Act that allows Scottish Ministers to give assistance to UK Ministers and the UK Government. The co-operation at the time between the international development department and the Scottish Executive allowed that to proceed.

My noble friend raised an important point about a referendum. The United Kingdom Government made it very clear, in our consultation paper of 10 January, that the Scottish Parliament cannot legislate on reserved matters, including on an independence referendum. We have also indicated a preference for a Section 30 order, as have the Scottish Government. By the very nature of a Section 30 order, it deals with things that are currently reserved. One of the earliest was on railways. Therefore it is inevitable that there will be some expenditure and some legitimate activity by Scottish Ministers, who have to discuss and negotiate the terms of any order—which, by definition, must relate to a reserved matter—but look forward to agreeing between the two Governments to put a Section 30 order to both Parliaments. That is clearly why it is important, not just in the context of a referendum but in the context of other areas where a Section 30 order has been used where there has been a transfer of powers from one Parliament to the other, that there is proper co-ordination and consideration. Indeed, in terms of a number of powers in this Bill, there has clearly been discussion between both Governments.

[Lord Forsyth of Drumlean]

Could my noble and learned friend help with the point that was raised by my noble friend the Duke of Montrose about the position in respect of expenditure incurred on matters that are not within the legal competence of the Parliament? Who is accountable for that? Is it the Permanent Secretary as the accounting officer, the executive members or the Members of the Scottish Parliament? What, if any, sanction is there if there is expenditure that is ultra vires?

[Lord Wallace of Tankerness]

My noble friend has tabled an amendment on this issue that we will come to. I suspect that the accounting officer must have responsibility in these matters. However, as I sought to indicate, it would be very perverse if the United Kingdom Government invited a response and a consultation and then said that it was beyond the Scottish Parliament’s competence to engage in it. My noble friend raises an important point, and we will come to his amendment, which will be a proper opportunity to look at that in more detail.

As I indicated, in the case made by the noble and learned Lord, Lord Boyd, it is very difficult to draw the line. It does not cure the problem, but it is not beyond the wit to come up with the appropriate Motion to put before the Scottish Parliament. My noble friend Lord Forsyth and the noble and learned Lord, Lord Boyd, made the point that the genie is out of the bottle. Indeed, it was intended as long ago as the original White Paper that there should be an opportunity to debate these reserved matters. In these circumstances, I invite the noble Lord, Lord Foulkes, to withdraw his amendment.

[Lord Foulkes of Cumnock]

I have found this debate very helpful, although it pointed out that my amendment is less than perfect. A lot of interesting issues have been raised, not least that raised most recently by the noble Duke, the Duke of Montrose, and picked up by the noble Lord, Lord Forsyth, because according to this consultative document written submissions have to go to the Elections and Constitutional Development Division at Victoria Quay. I remember asking a number of questions and, no doubt, some MSPs are still asking questions about how many civil servants there are in these divisions dealing with breaking up the United Kingdom. They are spending taxpayers’ money to employ officials to move Alex Salmond’s dream a bit closer. The noble Lord, Lord Forsyth, asked a good question, which needs to be pursued, about how much money is being spent on that and whether it is ultra vires. That is, no doubt, something that we will be taking up on another occasion. It is a very serious matter. It is not just a question of printing the document; it is a question of the civil servants who could be better employed dealing with education, which is pretty ropey and not being dealt with in a perfect manner—let us put it that way—in Scotland at the moment, or with the health service, which is under pressure in Scotland. It would be better to use that money to employ nurses, teachers and policemen rather than these civil servants. I hope the noble Duke, the Duke of Montrose, and the noble Lord, Lord Forsyth, will pursue this important matter.

--- Later in debate ---

On the amendments tabled by the noble Lord, Lord Selkirk, clearly it is right that the person who makes the reference should be responsible for the publicity. Whether that is achieved through amendments brought forward by the noble Lord or by the Government at some stage in the future, I would certainly support them if this clause stood part of the Bill.

[Lord Wallace of Tankerness]

My Lords, it has been amply demonstrated by the remarks of the noble and learned Lord, Lord Boyd, that, as things currently stand, whole Bills can be delayed—possibly for months—should only a single provision be referred to the Supreme Court to determine whether it was within legislative competence. Section 33 of the Scotland Act 1998 contains a power to allow the law officers to refer Bills passed by the Scottish Parliament to the Supreme Court to determine whether they are within legislative competence prior to Royal Assent to the legislation.

The Scotland Bill provides the Government with an opportunity to re-examine this power. Indeed, as the noble and learned Lord indicated, the Calman recommendations encouraged a general sweep-up, and so within the Scotland Office and the Office of the Advocate-General we looked at all the different matters that had arisen and at where there were opportunities to amend, and some of these are reflected in other parts of the Bill.

It is very helpful that the Committee has been informed by the noble and learned Lord, from his many distinguished years of experience as Lord Advocate, as to how the process works. I should put on record from the UK Government’s side that officials in my department talk day in and day out to officials in the Scottish Government’s legal department on proposed Bills and orders to ensure that they come within competence. They discuss particular issues, and sometimes, when it is found not possible to get a solution under the legislation to be passed by the Scottish Parliament, orders under Section 104 of the Scotland Act can be brought forward to give effect to certain provisions. One sometimes sees headlines about the more controversial issues. We should not lose sight of the regular and valuable work done by officials in respective Governments to try and resolve many of these issues.

Likewise, officials within my department monitor Bills as they go through the Scottish Parliament. In a similar way to when the noble and learned Lord was Lord Advocate and during the 28-day period, these matters were looked at in my own department and ultimately referred to me to decide whether to refer them to the Supreme Court under Section 33. I share this thought with the noble and learned Lord. I recall from being a Minister when he was Lord Advocate the thoroughness with which that was done. Yet shortly after I took up office as Advocate-General, a case came before the High Court of Justiciary involving the competence of an order of lifelong restriction when someone had been convicted of an offence solely under the Firearms Act. That is of course a reserved matter. The question was whether the order was competent. The general view was that it was not, and ultimately the Crown did not defend the appeal. One of my officials said, “Who was the Minister who signed the original Bill as being competent?”. I had to hold my hand up, but I will not say who the law officer was who gave me that advice. It is fair to say that the other parts of the Bill stand with regard to the order of lifelong restriction and to offences that were either common law or related to devolved matters. That underlines the fact that a considerable amount of effort and work go into this.

With this clause, we sought to prevent unnecessary delays to Bills the majority of provisions of which are considered to be within the competence of the Scottish Parliament. In these circumstances, the affected Bill would be submitted for Royal Assent by the Presiding Officer, while the disputed provisions would not come into force until the Supreme Court had reached a decision and Scottish Ministers had made the appropriate commencement order.

As the noble and learned Lord indicated, this power has not been used to date. As I have indicated, that is testament to the engagement between the UK and Scottish Governments, both under the current Administrations and previous ones. We do not really need to be reminded of how much both Parliaments enjoy, particularly in the field of criminal justice, so-called Christmas tree Bills to which bits are added here, there and everywhere. No doubt there is a need to address some recent development, or some official remembers a particular problem that needs sorting out. It would be regrettable if a Bill whose provisions for the most part were well within competence had one particular clause thought to be outwith competence and that had to be referred to the Supreme Court for a determination that held up the whole Bill. We wish to address that issue.

The limited procedure that we propose seeks to do that. I will deal with some of the amendments before addressing some of the points raised by the noble and learned Lord.

[Lord Stephen]

Before moving on, might the noble and learned Lord at this stage or later in his remarks take the opportunity to refer to an issue relating to the SNP Government’s proposed referendum Bill, on which he will be aware of very clear legal advice to the UK Government? Given the current procedures and how they might be affected by the proposals in this Bill, what is his understanding of the position within the Scottish Parliament on involving the law officers in Scotland if the referendum Bill moved forward?

If law officers were to advise the Presiding Officer that the Bill, or any other piece of legislation—the noble Lord, Lord Steel, will have much experience in this regard—was not legislatively competent, would that advice become apparent at any stage? Need that advice become public in any way? This is a matter of huge interest at the moment in Scotland.

[Lord Wallace of Tankerness]

To take the first part of the question, about the law officers, it is part of the Ministerial Code. We have tried to be very careful with regard to the referendum matter, although we may not have managed it all the time, to say, “This is the view of the United Kingdom Government”, because the Ministerial Code says that it may not be disclosed whether or not law officers have been asked for advice, let alone what the advice may be. The Ministerial Code is written in almost, but not quite, identical terms for the Scottish Government, and I would therefore certainly not ask the Scottish Government to produce their legal advice. If they refused to produce it or even to disclose whether they had sought it, that would be totally consistent with the Ministerial Code. However, it is perfectly legitimate to challenge them, if they assert something, about the basis on which they assert it, without asking them if there has been legal advice.

[Lord Foulkes of Cumnock]

I always wonder what is meant by legal advice—legal opinion from a counsel, or whatever. Let us take an example. Let us say that the Lord Advocate went to Glasgow University and gave a learned lecture about the law on the legality of a referendum. Is that legal advice?

[Lord Wallace of Tankerness]

A public lecture is clearly not the same as advice that counsel would give to his or her client. This is probably not the place to debate the pros and cons of the Ministerial Code on legal advice, but legal advice is an opinion of the law officers given on a particular issue to a client department.

[Lord Foulkes of Cumnock]

Is it not reasonable to assume that if a law officer states a legal opinion in the course of a lecture at Glasgow University, that might just be the same as the legal advice that he gives a Minister in a Government?

[Lord Wallace of Tankerness]

I express the view of the United Kingdom Government; I shall leave it at that. There is good reason why the convention is there, and it has been quite rigidly adhered to by law officers of all Administrations, in Scotland and the United Kingdom generally.

The noble Lord, Lord Stephen, also asked about the legal advice given to a Presiding Officer. The Ministerial Code arrangements for that are clearly not the same. Off the top of my head, I could not say whether that legal advice would be made available or not, or what the response would be if someone wanted to FoI it. It might well be that it is advice given by a lawyer and that there are categories of exemptions for legal advice. It might be a matter that would end up in the courts—I am not going to express a view on it.

[Lord Stephen]

My point is that when my noble and learned friend and I were in government, I recall that we went to quite extreme lengths to make sure that a piece of legislation was within legislative competence. The noble and learned Lord, Lord Boyd, has already referred to those matters. Part of the hard work that was done was to ensure that a piece of legislation would get the approval of the Presiding Officer. My understanding was always that if there was a conflict with the Presiding Officer, we would work on the legislation and make sure that it was within legal competence, as defined by the Presiding Officer. From what has been said this afternoon, a Government can, as I understand it, in effect defy the ruling of the Presiding Officer and push forward with the legislation, and no one in the Scottish Parliament—indeed, no one in Scotland—would be aware that the Presiding Officer had been overridden. That is my understanding of what the noble and learned Lord, Lord Boyd, and my noble and learned friend indicated. I suppose the question is: in what way would it be known that, for example, the referendum Bill had been laid before the Scottish Parliament even though the Presiding Officer had not approved it as being within legislative competence?

[Lord Wallace of Tankerness]

Perhaps I can clarify for my noble friend that Section 31 of the Scotland Act 1998 is relevant in this regard. It states:

“A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament”.

Subsection (2) says:

“The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view”—

or in the case now, in her view—

“the provisions of the Bill would be within the legislative competence of the Parliament and state his decision”,

so the Presiding Officer has to state their decision as to whether it is within competence.

Let us take this away from the question of the referendum Bill, because our ambition here is not to get into that position; it is to reach an agreement, preferably on a Section 30 order. However, in general, the Presiding Officer has to decide whether the provisions of the Bill would, in their view, be within the legislative competence of the Parliament, and has to make that decision public. It is still the case that the Parliament could proceed to debate and process the Bill notwithstanding that, but there are obviously political ramifications. I could imagine some pretty lively debates if that was to be the case.

[Lord Boyd of Duncansby]

Could I clarify something which I think I asked? I am not entirely sure that I have got it over. On the provisions on the statement in Section 31, I said that in my time as Lord Advocate the law officer had to give their approval to that. That is a matter of public record and has been said many times before. I do not know whether that has changed in any way and I cannot recall whether it was part of the Ministerial Code that the Minister could not make that statement without the law officer's approval. If it was part of the Ministerial Code, I cannot think that it would be departed from. If it was simply an internal arrangement, it could of course have been departed from and one could speculate as to what procedures would now be in place.

[Lord Wallace of Tankerness]

The noble and learned Lord is right. We cannot speculate on what happens in an Administration of whom we are not members, but I can confirm what my noble friend and the noble and learned Lord said about the Administration of whom the three of us were members. The procedures and proceedings in these matters were as they have described.

To return to Clause 7, the limited reference procedure that we are seeking would therefore allow the law officers to refer to the Supreme Court only the provisions with which they have competency concerns, while, as I said, allowing the rest to go forward to Royal Assent. We believe that this is an appropriate and sensible method of helping to ensure that the work of the Scottish Parliament runs as smoothly as possible.

On the amendments tabled by my noble friend Lord Selkirk to Clause 7, through our engagement with the Law Society of Scotland the Government have, as my noble friend indicated, tabled amendments that reflect the intention behind his amendments. I wish to thank my noble friend for looking at this clause closely and for tabling his amendments. The government amendments have the same effect; I am advised that parliamentary counsel think that they have a more appropriate form of wording, but the effect is exactly the same. We therefore very much support the amendments that he has tabled, and I hope he will withdraw his amendment in respect of the other amendments that have been tabled.

[Lord Browne of Ladyton]

I am grateful to the Minister. He will understand why I seek to intervene at this stage. I think it would be appropriate to point out that in the House of Commons Tom Greatrex moved a very similar amendment that was rejected, or at least not supported, by the Government at that time. The gratitude of the House to those who have created this resolution to the problem needs to be shared by him as well.

--- Later in debate ---

[Lord Wallace of Tankerness]

Indeed, what we have here is a better outcome than what was there before. We reflected on what had been said, the representations that we had received and the amendments that had been tabled, and came to the conclusion that this was the best way forward on this point.

[Lord Boyd of Duncansby]

I was not quite sure if the Minister was now coming to an end. I wanted to press him on one point. Whatever view he may take of the utility of the measure that he is putting forward, what weight does he put on the view of the Scottish Parliament—whose legislation this is, after all—that it does not want this? Does he think that it is right to press it in the face of that opposition? Or does he think that, because he as Advocate-General and his successors in that office will have to operate this, this is something that the UK Government want, despite what the devolved Administration think?

[Lord Wallace of Tankerness]

I also need to address some of the points regarding the amendments in my own name. I indicated that this was intended to help give effect to Scottish Parliament measures where perhaps only one small part of a Bill was in contention, rather than hold them up and frustrate them. If that were to happen and a whole Bill was referred because there was one clause in it over which there was some doubt and some cause for a Supreme Court determination, I rather think the Scottish Parliament might have a view to express at the point. The Bill being held up might contain other measures that it was agreed on all sides were very valuable; indeed, the measure under reference might be one where there was agreement about the policy intent but some doubt about whether it was within competency.

The six amendments that the Government have put forward are intended to achieve a number of important changes as well as technical improvements. As I have set out, and my noble friend has made this point, we think that the law officer who is making the limited reference should be responsible for publishing notice of it, rather than the Presiding Officer.

Amendment 12 implements recommendations made by the Subordinate Legislation Committee of the Scottish Parliament. We are taking on board what it said in its report on the delegated powers in the Bill in its 10th report of 2011, Session 3, where it stated that it,

“could envisage situations where the delay in commencement of the specified provisions would possibly require further provision to be made to enable the Act to function as the Parliament intended”.

The new power in subsection (9) is added in response to those comments to give the Scottish Ministers the power to make appropriate consequential provision in that scenario.

Amendment 12 deals with a point that the noble and learned Lord picked up: it modifies Section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 in its application to commencement orders made by the Scottish Ministers under new Section 33A(6). The effect is that those orders, which are to be subject to negative procedure in the Scottish Parliament, must be laid for a minimum period of 40 days rather than the standard 28-day period before they can come into force.

It may be helpful if I also write to noble Lords about this; I spent many sessions trying to get my head around a lot of its implications. The measure is designed to eliminate the risk that the Scottish Parliament passes a negative resolution after provisions in a commencement order made under Section 33A(6) have come into force. In this scenario the resolution would have no effect, as the provisions commenced would by that time already have the force of law. By increasing the laying period to 40 days, if the Parliament passes a negative resolution within that period then, in terms of Section 28 of the 2010 Act as modified, the instrument is not to come into force after that resolution.

Amendment 12 also allows the Supreme Court to provide that an order under new Section 33A(6) may be laid before the Scottish Parliament less than 40 days before it comes into force, in acknowledgement that there may be circumstances where it is desirable to bring provisions of an ASP that were subject to a limited reference into force more urgently.

Amendment 13 amends Section 113 of the 1998 Act so that the useful supplementary order-making powers contained at subsections (2) to (6) and (11) of that section also apply to the powers of Scottish Ministers to make orders under Section 33A(6), (9) and (10). For example, that would allow a consequential order under new section 33A(10) also to make supplementary or incidental provision under the power at Section 113(4)(a).

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

9: Clause 7, page 6, line 13, leave out “Presiding Officer shall publish notice of the reference” and insert “person who made the reference shall publish notice of it”

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

12: Clause 7, page 6, line 36, at end insert—
“(d) provide that an order under subsection (6) may be laid before the Scottish Parliament less than 40 days before it comes into force, despite anything in section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10), as modified by subsection (11).(9) The Scottish Ministers may by order make such provision as they consider necessary or expedient (including provision amending the Act) in consequence of any delay by virtue of subsection (2) in the coming into force of any provision of the Act.
(10) If the Court decides that any provision of the Act is outside the legislative competence of the Parliament, the Scottish Ministers may by order make such provision as they consider necessary in consequence of that decision in order to give full effect to any provisions of the Act which are within that competence.
(11) In its application to an order under subsection (6), section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (the negative procedure) has effect with the following modifications—
(a) in subsections (2) and (8), for “28 days” substitute “40 days”;(b) in subsection (4), omit “so far as the instrument is not in force on the date of the resolution” and paragraph (b);(c) omit subsection (7)(a).””

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I know my limitations and that I will be unable to match the gratitude of the noble Lord, Lord Steel of Aikwood, to my noble friend Lord Foulkes, but I will do my best. That is all I have to offer him. I thank him for bringing forward this amendment. I believe that he has made the case for a review of the electoral system used for elections to the Scottish Parliament. He made it by reminding us of the promise that the system would be kept under review; of the acceptance of the recommendations made in the Arbuthnott commission report in 2006; and, if I remember correctly, of the acceptance then that it would be appropriate to have a review of the electoral system for the Scottish Parliament following the May 2011 elections—which recommendation I recollect was accepted by Douglas Alexander, the then Secretary of State for Scotland. That acceptance may not have transferred to the new coalition Government and the present Secretary of State, but I suspect that if he reread Arbuthnott, he would come to the same conclusion in relation to that review as did Douglas Alexander.

For that reason, I accept that there is a case for a review. I was interested in the intervention made on my noble friend Lady Liddell by the noble Lord, Lord Stephen, who indicated that he had some reason to believe that the current leadership of the SNP in Scotland had welcomed the review and might be inclining towards the views of my noble friend Lord Foulkes about what system should replace the present one.

My noble friend expressed some surprise at that, but I am not surprised, because the SNP now has the constituencies. There is a tendency for a party’s view of the electoral system to reflect either its wish to hold on to the status quo or its desire to disturb it. That is exactly why my noble friend is right to suggest that the review needs to be carried out independently of politicians, and the noble Lord, Lord Forsyth, is right to support him.

Perhaps part of the problem with the present system was that it was a compromise agreement between political parties which had an objective to disturb the status quo. My own experience is that some of the concerns about the electoral system that is used for the Scottish Parliament are exaggerated, but I do not have comprehensive experience all over Scotland of how the system works. I know that people whose views I respect have concerns about it and they have been articulated here in our debate.

I suspect that the noble Lord, Lord Steel, is partly responsible for forcing upon the Electoral Commission a numerical priority. We have had two experiences of this in Scotland. One was in a review of boundaries for the Scottish Parliament elections, when my recollection was that the instruction that went out to the Scottish Boundary Commission was in its interpretation so restrictive that it took the basic building block and just applied it numerically from one starting point across Scotland. With one or two exceptions, none of its recommendations survived the appeal process or presentation to the sheriff principal because they were ridiculous in relation to communities. I remember the debates about the constituency boundaries and voting systems Bill, when my noble friends were queuing up to say that that is exactly what would happen if we forced that structure, or any part of it, on the Boundary Commission again through that legislation. So, in a sense, this legislative body has exacerbated the problem through that legislation.

I accused the noble Lord—I hope not too seriously—of being part-author of that problem. However, he may not have voted against the attempts that were made to ameliorate the effect or to stop it, but I have a recollection, certainly, of people from his Benches voting against the amendments that were tabled through the best endeavours of people on this side of the House who knew exactly how it would work and tried to prevent it happening. If it does happen, some people will have been the authors of their own misfortune by creating a separation between communities and constituencies.

We have yet to see how the review of constituency boundaries will work out but I predict confidently that when people realise how they will take effect in their communities, Members of Parliament of all parties will be screaming from the rooftops. Not only that, communities from all over the country will come to Members of Parliament and politicians and say, “What are you doing here? What have you done?”—and it will be interesting to see how many people stick by the arguments that they made during the passage of the Bill as a justification for doing this. However, that is perhaps another matter. I did not introduce the issue into the debate but I have taken advantage of the opportunity to make my point.

Having supported the general tenor of the debate—that the time has come for a review—I say to my noble friend that I do not think this is the vehicle for it. Earlier in the debate I understood the Minister to indicate, possibly in anticipation of this amendment, that the Government were minded to explore whether the time had come for a review; that they were going to do so in an appropriate way by consulting across parties; and that the voting system for the Scottish Parliament could be included if there was consensus and agreement for such a review.

That is, of course, the way in which we should proceed with all constitutional change; we should consult and seek consensus so that we can go forward. No political party owns the constitution and we all have a responsibility to preserve certain parts of it to hand on to future generations. It belongs to the people, not to us, and we should ensure that we do not seek party advantage out of a review of the constitution. If there is to be constitutional change in this area, that is the appropriate way to do it—not by, with all due respect to my noble friend, a provision in this Bill.

The structure that my noble friend has suggested has many of the right ingredients for a review. The timing that he proposes, however, would, if we pass the amendment, divert us from what should be the focus of our attention for that period of time and until the referendum in Scotland—that is, making the progressive, proper, forward-looking argument for keeping Scotland in the union; we should not use any of our resources for considering the system for electing Members to the Scottish Parliament. In my view—and I am afraid to say that this is where my gratitude to my noble friend runs out—this is the wrong vehicle. I prefer the Minister’s indication that it will be done in an appropriate way by a review instituted with some degree of consensus. The discussion needs to go beyond political parties into civic Scotland. It is the wrong time, but I am grateful to my noble friend for allowing this debate.

[Lord Wallace of Tankerness]

My Lords, the amendment moved by the noble Lord, Lord Foulkes, has generated a considerable amount of discussion on the merits or demerits, as perceived by noble Lords, of the present electoral system for the Scottish Parliament. I declare a non-interest: I was not at the noble Lord’s party, but I can assure him that that has no bearing whatever on the response I will give to his amendment.

He wishes to set up a committee to review the electoral system used to elect Members of the Scottish Parliament. It is tempting to go through the history of how we arrived at the electoral system we have. I shall resist that temptation, other than to say, as was indicated, that it was a compromise. It was obvious at the time and is the case. My noble friend Lord Steel said that there was a commitment to review the system after two elections. I do not remember such a commitment but, nevertheless, the Arbuthnott commission was established jointly, if my memory serves me correctly, by both the Scottish Government and the United Kingdom Government to look at the electoral system. It reported, recommending some revisions to the electoral system. I try to remind myself what they were. The Arbuthnott commission recommended that the mixed-member proportional system we have for elections to the Scottish Parliament should be revised to give voters more choice. It suggested that the closed list should be replaced by an open one, that the boundaries should be based on local authority areas and that a role should be defined for the regional MSP. Self-evidently, these recommendations were not taken forward or implemented.

The commission went on to say that,

“our revised electoral system, if implemented, should be reviewed following the experience of two elections. If further reform is judged necessary, consideration should be given at that time to introducing the single transferable vote for Scottish Parliament elections”.

As I have indicated, that revised system has not been implemented. The Calman commission perhaps read more into that and interpreted it as saying that in any event there would be a further review after two more elections—ie, after 2011. My colleagues who sat with me on the Calman commission will no doubt recall that we did not make any recommendations on the voting system as such because of the very recent Arbuthnott review, but also because there might have been a future review.

As I indicated in an earlier debate, specifically on another aspect of the electoral system and the regional list Member also standing in the constituency, the Government have stated their intention to consider what has been said by a review of the electoral system by both the Calman and Arbuthnott commissions. Indeed, in the Command Paper published alongside the Scotland Bill on St Andrew’s Day 2010, Ministers said that they recognised that the Calman commission,

“considered whether the electoral system for the Scottish Parliament should be reformed or devolved to the Scottish Parliament. Previously, the Arbuthnott Commission had reported in 2006 stating that there should be a review of the electoral system after the 2011 elections to the Scottish Parliament—the Government will consider this recommendation, taking into account the views of the new Scottish Parliament, following the May 2011 elections”.

Clearly, as indicated by the debate we have had this afternoon, there is support in a number of quarters for some form of review of the electoral system. However, the Government believe that they could take forward that review only with the full support of all parties in the Scottish Parliament, along with the benefit of the detailed consideration that this Government are committed to. I take the point made by the noble Baroness, Lady Liddell, that there is perhaps some nervousness about seeking to change the rules after they delivered a result that many of us did not like. That is a fair point. The noble Lord, Lord Browne, also made the important point that there are perhaps more important constitutional issues that we should focus on at this time, not least the fundamental question of Scotland’s place in our United Kingdom. Perhaps now is not the appropriate time to start a review of the electoral system. I have indicated that if there is that consensus to take it forward at some future time, we would be willing to consider it, but this is not the appropriate time to do so.

I think that we all share two views that were expressed earlier. First, I endorse what my noble friend Lord Forsyth said on the standing and importance of a Member of Parliament in his or her community. He said that those of us who have had the privilege to serve as Members of Parliament take very seriously that we represent the entire community and not just those who voted for us. That sense of representation and the privilege that follows those of us who have done that is important. That links into what the noble Lord, Lord McFall, said on the duty of all us to consider how as politicians—elected or not—and as a political system we can re-engage with the people who our laws affect. That will not be done just through a change to an electoral system. There are a whole host of things but it is something we would do well to remember.

For clarification, on the specific point raised by the noble Lord, Lord Foulkes, on Amendment 1, I repeat that we will see what consensus there is about looking at that. In the spirit of what I have said, I hope the noble Lord will withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, we have had a very lively and well informed debate, considering that we started over seven hours ago with the procedural amendment proposed by the noble Lord, Lord Forsyth. It has been a very useful debate.

My noble friend Lady Liddell—I call her Secretary of State emeritus for good reasons—alerted me to the fact that she was going to disagree with me. I did not realise that it would be such a gentle disagreement, because it was a very sensible contribution. She pointed out the genuine argument against my proposal, and I had taken account of it. It is a very genuine argument about timing that we need to be concerned about. There is never a good time for this, and we wish we had done it. My noble friend said that we had missed the boat. I wish we had had a review when we should have had one, but it is too late now. I am glad that the Minister has said that the Government would look at it at an appropriate time. If the noble Lord, Lord Stephen, is correct in what he said in intervening on my noble friend, there is hope that we might get agreement across parties and between this and the Scottish Parliament. That would certainly signal the way forward.

I thank my noble friend Lord Browne for his very positive response. He was a bit hesitant about it, but it was very positive indeed. Someone said that this was not the vehicle to raise this issue, but it was the only vehicle open to me. I accept that it may not be the best way forward. Therefore, because I accept the point made by the Minister in his very helpful reply, I beg leave to withdraw my amendment.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Thursday 26th January 2012 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the House do now resolve itself into a Committee on the Bill.

Amendment to the Motion

Moved by

--- Later in debate ---

The Prime Minister has announced that he has a respect agenda for Scotland. Would it be respectful to proceed with this Bill if the Scottish Parliament takes the view that we should not proceed with it? I ask this simply as a humble seeker after truth. I should say to my noble and learned friend that I am not going to read out all 45 recommendations, tempted as I am, but I have to say that if the Scottish Parliament is not going to debate them, surely we should not be debating them, or surely we should have answers from the Minister as to the Government’s attitude. Perhaps we could have a debate in the Moses Room, although it would be rather paradoxical if the unelected House of Lords—as the Leader of the Scottish National Party, the First Minister, Alex Salmond, insists on calling us—actually got round to debating a committee report that was dominated by his own party in the Moses Room.

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

Without Moses!

[Lord Forsyth of Drumlean]

I do not think that Alex Salmond would like being compared with Moses. After all, Moses never got to see the Promised Land. However, on reflection, perhaps my noble and learned friend is right.

One other aspect of the consultation paper is that he wants to rig the franchise and give the vote to 16 and 17 year-olds. My researchers tell me that there are only nine countries in the world that give the franchise to 16 and 17 year-olds, two of which are North Korea and Cuba, both of which have leaders with a high opinion of themselves.

I am not noted for carrying a flag for the Scottish Parliament but, to be serious, there are some very important recommendations here, on some of which I have tabled amendments so that they can at least be debated. I do not agree with all of them, but some of them are perfectly sensible. For example, this Bill provides for the control of speed limits in Scotland to be devolved to the Scottish Parliament. I think that that is daft, because you would cross the border and suddenly there would be a different speed limit. But it has been agreed—it is in the Bill and I do not want to question it. However, the committee of the Scottish Parliament says that it should not give legislative consent unless the Government agree to change the Bill, which at the moment allows the Scottish Parliament to set the speed limits for cars but not for HGV vehicles. It seems a little odd that we are prepared to devolve responsibility for motor cars but not for HGVs. I have tabled an amendment to which I hope my noble and learned friend will give fair consideration at a later stage. There are other issues, too, which should be considered.

I know that my noble and learned friend is agog as to whether I am going to press this matter to a vote. In order to avoid having to do so, I have tabled an amendment on the issue of legislative consent which says that if within two months of Royal Assent for this Bill we have not had legislative consent from the Scottish Parliament to those provisions which relate to its responsibilities, then the Bill will fall, and only those provisions which do not require legislative consent will remain. I hope that my noble and learned friend, after the consultation period has been concluded, and given the evidence of a lack of good faith on the part of the First Minister, will consider amending the Bill to provide for a fair and proper referendum to be conducted. In those circumstances—if the Scottish Parliament did not give legislative consent—we would be left with a Bill that simply provided for a referendum. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I start by thanking my noble friend Lord Forsyth for moving this amendment. He questions whether I should—I think it has been very useful. I hope we will move into Committee, but it is helpful that that has been placed in the context of the current political debate. It is a very serious constitutional debate, not just for Scotland but for the wider United Kingdom, as other noble Lords, not least the noble Lord, Lord Empey, have indicated. The comments that have been made have helped to set that context.

I endorse what was said by the noble Lords, Lord Kerr, Lord Singh of Wimbledon and Lord Browne, about the importance of the tone of these debates. It is important that we conduct these debates in a very rational manner, putting and testing argument in a way that I think is typical of this House. The noble Lord, Lord Kerr, indicated that it was perhaps unfortunate that there are no Scottish National Party Peers here. I do not propose to answer for the Scottish National Party but I share his view. That is a decision that the party has taken. Our debates are possibly the poorer for it. Without embarrassing anyone by naming names, many of us can think of one or two Scottish National Party Members who would certainly add to the deliberations in your Lordships’ House. Of course, they might then be able to move some of the amendments on the recommendations of the Scottish Parliament committee. I know that my noble friend Lord Forsyth will move some of them. No doubt the business managers will have noted his comments about the Moses Room.

We certainly took on board the comments that had been made about the fact that it would not necessarily be desirable for Committee stage of this Bill to take place when there would still be live questions on amendments tabled in relation to the referendum on independence while the Government’s consultation was still outstanding. That consultation will close on 9 March. I am grateful to all who contributed through the usual channels that the House was able to agree a Motion on Tuesday, which has been widely welcomed, to enable our debates on Clause 10 to be taken last. At that time, I suggested to the House that any amendments relating to the referendum or independence should be best placed before Clause 10. Perhaps I may express my gratitude to noble Lords who have tabled, and in some cases retabled, referendum-related amendments before Clause 10 rather than to other parts of the Bill in order that we can fulfil the intention of the order of consideration that was put before the House. To repeat what I said on Tuesday, the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March, which will allow us to debate the referendum in the light of the responses received during the consultation period.

That said, we immediately found ourselves debating issues relating to the referendum and the consultation documents. While I am tempted to follow the noble Lord, Lord Browne, down the road of saying, “Well, perhaps it is not appropriate to discuss these”, I think that it would be only courtesy at least to address some of the issues that have been raised. However, quite clearly, when the House resolves itself into Committee and we reach the amendments that have been tabled in relation to a referendum, we will have an opportunity to discuss those issues at greater length and in more detail.

I am very grateful for the comments made by the noble Lord, Lord Browne, about the lecture I delivered at Glasgow University last week. I was able to confirm the very strong view of the United Kingdom Government that under the Scotland Act 1998 the Scottish Parliament does not have the legal competence to pass a referendum Bill. Things obviously flowed from that and we set out in our consultation why we believe that a referendum should be legal, fair and decisive, and the ways in which we might seek to do that.

It is fair to say that we have moved a long way in two weeks. First, I do not think that I had sat down in your Lordships’ House after having repeated the Statement before we had been given a preferred date by the Scottish Government for a referendum, for which many people had been asking for some considerable time. It appears to be the case that we have agreed that the preferred way to deliver the legislation for a referendum is by the two Governments working together. In their consultation paper yesterday, just as the United Kingdom Government expressed their preference for an order under Section 30 of the Scotland Act to take this matter forward, the Scottish Government indicated that their preference was for a Section 30 order.

Without going into the detail of the Section 30 order, I know that my noble friend Lord Sanderson expressed the importance of the role of the Westminster Parliament in constitutional issues. Of course, a Section 30 order not only has to be approved by the Scottish Parliament but has to be approved by both Houses of this Parliament, which means that, assuming we can make progress, any order which we would wish to bring before the House is one which this House would have an opportunity to consider. Clearly, that will be in mind as these discussions take place.

[Lord Forsyth of Drumlean]

Perhaps my noble and learned friend can help me on one point. He has been very generous in agreeing to reschedule the consideration of the Bill in order to accommodate the timetable of the Government’s consultation paper. Will he say something about how he proposes to deal with the problem created yesterday by the Scottish Executive’s consultation paper, which has a timetable that takes us beyond the period probably of this Session and therefore our ability to consider the Bill? How do we resolve that?

[Lord Wallace of Tankerness]

I was going to deal with that matter later. The noble Baroness, Lady Liddell, also made reference to the possibility of carrying over the Bill. Certainly, it is my understanding that the normal process for carrying over legislation is that it has not passed to the second House for consideration. Page 642 of the 24th edition of Erskine May states that,

“carry-over is restricted to Bills which have not yet left the House in which they originated”.

Therefore, to try to carry over this Bill would mean not so much carrying over but effectively starting the process again, which would significantly delay implementation. That is why I believe it is right to continue with the current timetable and I will come on later to explain why. It is important that we make progress on that.

My noble friend Lord Forsyth mentioned the fact that, as we are well aware, the consultation paper was published yesterday. The point is that the UK Government’s consultation paper indicates that while our preference is for a Section 30 order, there is also the possibility of using this Scotland Bill. Clearly, if we are to get this Bill passed in the current Session, it would not be possible to put it off indefinitely. I note that paragraph 1.7 of the Scottish Government’s consultation paper states:

“The UK paper sets out two possible mechanisms to transfer the power to hold a referendum on independence: an Order in Council under Section 30 of the Scotland Act 1998, or an amendment to the Scotland Bill currently under consideration by the House of Lords”.

It does so without any implied criticism. It just states that as a fact. We would wish therefore to make progress, although it is important for us to indicate that, but for the fact that my right honourable friend the Secretary of State for Scotland has been stricken down with chicken pox, there would have been a meeting tomorrow between him and the First Minister on these matters. Unfortunately, it cannot take place tomorrow but we are very keen that it should take place—I do not think the First Minister is keen that it should take place while the Secretary of State has got chicken pox—as soon as possible. It is a welcome sign that that engagement is happening.

I will reflect on the points made by my noble friend and others about the role of the Electoral Commission. However, the UK Government have made it very clear that we believe that the Electoral Commission is a proper body to have oversight of the referendum, not least given its track record in monitoring referendums since its inception. We are clear that that is our preference.

A number of noble Lords raised whether the question proposed by the Scottish Government is fair. We will certainly wish to consider the consultation document carefully but we believe, as set out in our consultation paper, that the Electoral Commission should have a statutory role to review and to comment on the question. As others have pointed out in the press today, it is not immediately clear from the Scottish Government’s document that they propose that the Electoral Commission will have that role. I understand that the First Minister has indicated that this may have been an oversight of the document but we will obviously pay close attention to that. Clearly, it would be part of the substance of discussions.

[Lord McConnell of Glenscorrodale]

The Minister advised that at some stage, perhaps not today but in the future, that process could involve looking at a variety of ways of posing the choice. Over the past few decades, it has not necessarily been the case in the United Kingdom that all referenda have included questions that had a yes or no answer. There have been referenda which posed a choice. I should like the Electoral Commission to be able to look at a variety of possibilities and not just those that have been chosen in more recent times.

[Lord Wallace of Tankerness]

I recall the kind of situation that the noble Lord, Lord McConnell, suggests. That emphasises that the Electoral Commission does have an important role to play. I cannot answer his specific question today, but it underlines more generally the important role of the commission. Further, as I have indicated, this will be a matter for discussions with the Scottish Government.

I have made the point that these discussions are taking place, but my noble friend also raised the question of what we should do with the Bill pending a legislative consent Motion in the Scottish Parliament. As the noble Lord, Lord Browne of Ladyton, reminded us, the Scottish Parliament expressed its general support for the Bill, subject to some detailed concerns, in a vote in March 2011. Of course, the Scottish political landscape has changed since then, but as he rightly reminded us, those voting for the resolution included many Members of the current majority party in the Scottish Parliament, including the First Minister himself. He also indicated that there has been a response from the UK Government to the points made in the legislative consent Motion, specifically that provision has now been made in the Bill to allow bonds to be introduced in the future without the need for further legislation. There is a provision in the Bill to allow for reciprocal consultation between Governments in relation to electoral matters; provision to provide Scottish Ministers a role in the appointments to MG Alba; and provision to give Scottish Ministers responsibility for the disqualification rules for the Scottish Parliament. Obviously we will come to discuss Clause 17 at the next sitting of the Committee, if we get that far, which in a number of important respects is a response to the review undertaken by the noble and learned Lord, Lord McCluskey, at the request of the Scottish Government. So there have in fact been numerous comprehensive responses to the previous LCM.

I can assure the House that we are considering carefully the latest Scotland Bill Committee report. Its timing is clearly not a matter for the UK Government, but I can confirm that we are in continuing constructive discussions on the Bill with the Scottish Government. It might be premature to table a legislative consent Motion when these discussions are ongoing. I do not particularly want to say anything that might prejudice those discussions, but I can confirm that they have been happening on a constructive basis, and I hope that they will provide us with a way forward.

My noble friend Lord Maclennan asked about our response to Miss Fabiani, who is the convenor of the committee. I can confirm that on 20 January the Secretary of State wrote to her and again made it clear that constructive discussions are under way. He also indicated that in addition to reviewing the report of the Scottish Parliament, the Government would have to have regard to comments and contributions made in your Lordships’ House on the Bill. I think I am right in saying that the letter contained a paragraph which reminded the convenor of the Scotland Bill Committee that the Government do not have a majority in this House, and therefore we could not necessarily guarantee that any particular amendments would be carried. However, I hope that I can reassure noble Lords that there is constructive engagement on this.

It is also fair to say, as the noble Lord, Lord Browne, pointed out, that there is no clear timetable about when in the progress of a Bill a legislative consent Motion is passed. As I indicated, one was passed in the Scottish Parliament last March, which certainly meant that it was done before Report stage in the House of Commons.

[Lord Forsyth of Drumlean]

I have considerable respect for my noble and learned friend, and perhaps I may ask him to answer a straightforward question. In the absence of a legislative consent Motion, will the Government proceed with the Bill to Royal Assent, and implement it; or is it their position that without a legislative consent Motion, the Bill will not go ahead? It is important that Members of the Scottish Parliament know the score. As the noble Lord, Lord Browne, said, if one were a Member of the Scottish Parliament who, like the First Minister, was publicly committed to the Bill, one would not want to do anything that might prevent it getting on to the statute book. The fact that the committee report has not even been scheduled for a debate in the Scottish Parliament, when we want to take account of what it has to say, is an affront to democracy—which might be a strange thing to say in this unelected House.

[Lord Wallace of Tankerness]

My Lords, I sought to indicate that if discussions are going on, it might be premature to go ahead with a legislative consent Motion. That could prejudice the discussions when in fact there is an opportunity for agreement. I do not want to say anything that might be seen as a threat and jeopardise the position, as that would not be helpful to the process. We want to achieve a process in which a further legislative consent Motion can be passed by the Scottish Parliament, and I do not wish to say anything in the debate to prejudice that. I say that particularly as an engagement has taken place. However, as the noble Lord, Lord Browne, made clear, many powers that will be available in this Bill are ones that the Scottish Government have been calling for. The recently published document on infrastructure planning is actually predicated on carrying forward to fruition the borrowing powers which the Bill makes available.

[Lord Forsyth of Drumlean]

I am sorry to press my noble and learned friend. I am asking not about the negotiations but about the constitutional position. So far as the Government are concerned, is the constitutional position such that they will not proceed to put this legislation on to the statute book in the absence of a legislative consent Motion—or might they? I do not wish to prejudice the negotiations but I do want to have clarity on the status of legislative consent Motions. The noble Lord, Lord Sewel, gave us his view. I want to know the Government’s view on the status of legislative consent Motions. The Motions apply not only to the negotiations on this Bill but to Section 30 orders.

[Lord Wallace of Tankerness]

My Lords, the point on Section 30 orders is clear—it is in statute. Statute law requires the consent of the Scottish Parliament and of each House in this Parliament. A convention is just that, a convention; it is not enshrined in statute. However, as the noble Lord, Lord McConnell of Glenscorrodale, said, if a convention has been operating for a period, you have to be careful about how you deal with it. I am not going to say anything today that might prejudice the way in which that convention is dealt with. Equally, although there is a legislative consent Motion outstanding, I very much hope that there will be a further one to which the House can have regard before we reach Report.

I shall come to the question asked by the right reverend Prelate in a moment. However, we may well have completed the Committee stage before we have the report of the Scottish Parliament committee. At one stage it seemed possible that we might receive it but, for reasons of timing, that has not happened. There is certainly nothing sinister about it, and I do not think that the Scottish Parliament necessarily expects that we would hold back our deliberations in Committee until the legislative consent Motion had been tabled and debated. I know that the noble Lord, Lord Sewel, is desperate to intervene.

[Lord Sewel]

I thank the noble and learned Lord for giving way. So far as I can remember, and I may well be wrong, a legislative consent order can be passed at any time up to immediately before the last amendable stage of a Bill in this Parliament.

[Lord Wallace of Tankerness]

That accords with my recollection. Given the limitations on amendments tabled at Third Reading in your Lordships’ House, I am not going to get into a discussion on whether it would be before Third Reading or before Report. However, that—as enunciated by the noble Lord, Lord Sewel—accords with my understanding of the convention.

It is also important to note what has been noted by a number of contributors to this debate—that not only has the Bill been passed by the elected House, its content was included in the 2010 general election manifestos of the Labour Party, the Liberal Democrats and, substantially, the Conservative Party. Each party which had been party to the Calman commission process made a commitment in its respective manifesto to take it forward. It is quite a rare event in politics to be criticised for implementing your manifesto commitments. It rather stands things on their head if for some reason you are criticised for actually doing what you said you would do.

The noble Lord, Lord Browne, asked me as a member of the Calman commission—I suppose that my declaration of interest will apply throughout these proceedings—what response the commission received. I think that it is fair to say—there are other members of the commission present in your Lordships' House today—that we were not inundated with suggestions about where the boundary between devolved and reserved matters should fall. Many of the representations that we did receive—there were not a particularly large number—are reflected in the Bill before us. However, it was strongly represented to the Calman commission that the 1998 Act would have to be revisited because of the lack of financial accountability of the Scottish Parliament. That was understood when the Act was passed. We have had since 1999 a Parliament that has had complete discretion over how it spends the money it receives but precious little responsibility for raising it. I think that my noble friend Lord Steel said in a Donald Dewar lecture that a Parliament that was 100 per cent dependent on its revenue from another Parliament would have to address that issue. That is what we seek to do in the Bill. As the Calman commission proposals have been around since 2009—they elicited a White Paper from both the previous and the present Administrations—I suspect that many of them, to some extent, have already been banked. However, as the noble Lord, Lord Browne, indicated, these are very substantial proposals that should not be minimised. They will give to the Scottish Parliament a degree of financial accountability that does not exist at the moment. That is one of the reasons why we want to make progress.

The right reverend Prelate asked about the overlap of the Scotland Bill and a referendum campaign. I think it is fair to say that it has been known since last year’s election, and before the Commons debated the Bill on Report, that we would have a referendum campaign at some point. That is something that we have to take account of but it has not suddenly come up. It was clear in the Second Reading debate that we would go into a referendum campaign at some stage. However, the Bill’s powers are substantial and we should continue to make progress with it.

The noble Lord, Lord Empey, raised some important issues about the referendum campaign that will have to be debated, as the substance of that independence debate, once the process is resolved. I think that many of us look forward to engaging in that debate and making a positive case for Scotland being part of the United Kingdom. The noble Lord, Lord McConnell of Glenscorrodale, warned that the First Minister was perhaps taking the view that the way to get rid of bad tenants is for them to annoy the neighbours. It is a good analogy up to a point, but the point is that we are not tenants. We helped to build the house and we co-own it. That is why the union is so valuable to us.

My noble friend’s Amendment 85 will allow us to return to these matters later in Committee. As I indicated earlier, although the Scottish Parliament has considered the Bill, your Lordships' House should be able to consider it in detail too. I am conscious that there are a number of your Lordships present who were here during the debates in 1998. I think that those debates well served the Scotland Bill, which became the Scotland Act 1998. The kind of deliberation that your Lordships can bring to a constitutional measure such as this is an important part of the process. I encourage noble Lords to continue deliberations on the Bill, and I hope that we can now proceed to do so in Committee.

[Lord Forsyth of Drumlean]

My Lords, we have had a really good debate. My view that the debate would take half an hour has not worked out entirely right—we have had two hours and 17 minutes of debate. It is fantastic that we have had such a turnout given that the debate was scheduled for the Thursday after Burns Night when many of us would have been in Scotland and perhaps not as bright and breezy as people obviously were this morning.

I do not propose to respond to all the points but I thank everyone who contributed to the debate. I am not sure whether I should thank the noble Lord, Lord Foulkes, for praising me for acting against my party interest in taking the view that I do on the union. Being serious, I think that we all recognise that the future of the United Kingdom is an issue that is above party, as this debate has demonstrated.

My noble friend Lord Sanderson talked about competition between consultation papers. Although I believe in competition, in this case it may have led to a certain disorder in the marketplace. It is really disappointing that the idea of carry-over proposed by the noble Baroness, Lady Liddell, cannot work, because that would have been a solution. I have to say to my noble friend Lord Sanderson that the last thing we want is another Bill to deal with a referendum in the next Session of Parliament, when we will by all accounts have to deal with the future of this House, which I think will take on considerable time and turbulence.

The noble Lord, Lord Wigley, is right to be concerned about language, but I just ask him to spend half an hour on the internet looking at what the cybernats write about many of those who have spoken in this debate. If he could convey those views about language to them, it would be very much appreciated.

The noble Lord, Lord Kerr, argued that it was important that there should be nationalist Members in this Chamber in order to put their point of view, but he seemed to have a bit of a wobble when I suggested that UKIP might be treated in the same manner. The right reverend Prelate the Bishop of Chester made the key point that it is important that this debate is seen to be carried out respectfully. That means that the consent of the Scottish Parliament is fairly important, a point made by the noble Lord, Lord McConnell. He criticised the Prime Minister for intervening perhaps a little late in the debate. That might be a fair criticism, but I do not think that any of us could have expected the First Minister to have made quite so many changes so quickly in response, so perhaps we have caught up with a timetable that would otherwise have applied.

The noble Lord, Lord Hughes, who I believe celebrated a major birthday recently, and who has a long experience in these matters, reminded us of the—I shall be careful with my language—flexible view on devolution which the First Minister has taken. He has been against it; then, in 1998, he campaigned with the Labour Party for it; then he went back to Scotland in 2004 and denounced devolution as a disaster; and now he is the high priest of devo-max, because nobody else seems to be talking about it.

I have great sympathy with the noble Lord, Lord Sewel. He shares with the noble Lord, Lord Barnett, the fate of having something named after him which he is going to spend the rest of his life denying any responsibility for.

It was very important to have the contribution of my noble friend Lord Steel, who was the first Presiding Officer of the Scottish Parliament. Of course, in the original Scotland Act, it was thought that the electoral system had been designed so that no one party would be able to get a majority, and that it was unnecessary to have a House such as your Lordships' House to be a check and balance against the Executive, because the committee system would ensure a balance. Well, it has now turned into almost a one-party Parliament. The nationalists have a majority in the committees and there is no check and balance. Therefore the role of this House is even more important. The fact that the current Presiding Officer was taken from the same party underlines the lack of sensitivity to the point so well made by my noble friend.

In his address, the noble Lord, Lord Empey, reminded us of how important it is to get these matters right, and that the balkanisation of Britain is a matter that concerns every part of the United Kingdom.

My noble friend Lord Maclennan reminded us that absence of consent is not acceptance. I agree. The noble Earl, Lord Mar and Kellie, referred to the absence of the SNP as Banquo’s ghost. I plead with him to find another analogy because, of course, Banquo’s successors inherited the crown.

Finally, in an excellent speech—I hope this is not damaging for him—the noble Lord, Lord Browne, set out the answers. He reminded me of what the noble and learned Lord, Lord Irvine of Lairg, said about the West Lothian question in response to my pressing him on where we were on the legislative consent Motion—a view which was echoed by my noble and learned friend in his excellent reply—which was that, with some questions, the answer to the question is not to ask the question. So on the basis that we do not ask the question now and make progress in the interests of what I accept is the democratically expressed views of the Scottish people, I beg leave to withdraw the amendment.

Scotland Bill

Lord Wallace of Tankerness Excerpts

Tuesday 24th January 2012 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That it be an instruction to the Committee of the Whole House to which the Scotland Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 9, Clauses 11 to 44, Clause 10, Schedules 1 to 5.

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

My Lords, the usual channels have agreed that it would be desirable for the Committee-stage debate on the question of a referendum on independence to take place after the Government’s consultation has closed on 9 March. This Motion enables our debates on Clause 10 of the Bill to be taken last, and I suggest that any amendments relating to a referendum are best placed “before Clause 10”. I respectfully encourage noble Lords to table referendum-related amendments as “before Clause 10” rather than to other parts of the Bill. If the House agrees to this Motion, I understand that the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March.

[Lord Foulkes of Cumnock]

My Lords, the Minister will recall that on 10 January I raised this with him when he made the statement and asked that the whole Committee stage be held over until after the consultation. My intention was to ensure that there should be no discussion on the referendum and all aspects of it while the consultation was under way. I therefore thank the Minister very much indeed for finding a solution that enables that to be put into effect.

[Lord Neill of Bladen]

I refer to the letter from the Scottish judges asking for additional clauses to be put into the Scotland Bill. Where does that fit into the Minister’s programme? How do we handle that?

[Lord Wallace of Tankerness]

My Lords, first, I thank the noble Lord, Lord Foulkes, for welcoming this. We recognised the issue and found a way to resolve it. On the question asked by the noble Lord, Lord Neill, I certainly recognise the importance of the letter sent by the Lord President of the Court of Session. It is likely, although one can never be sure, that the clause to which that relates in Part 2 of the Bill will be debated on Thursday 2 February. I hope that copies of the letter will be available in the Printed Paper Office for our consideration. There are both government amendments and amendments in the name of the noble and learned Lord, Lord McCluskey, which I am sure will allow us to have a very full and informed debate on that issue.

Motion agreed.