Scotland Bill

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Tuesday 24th November 2015 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, we on these Benches very much welcome the fact that we now have this Bill before us and congratulate the Minister on introducing it.

Many times before today, and already in this debate, the history of the Bill has been well rehearsed. Reference has been made to the agreement among the three party leaders and the fact that on the morning after the very successful outcome of the referendum—which showed that the people of Scotland did, by a significant margin, wish to remain part of the United Kingdom—the Prime Minister announced the establishment of the commission under the chairmanship of the noble Lord, Lord Smith of Kelvin. I am delighted to see the noble Lord with us today. As has been said, there was a very exacting timetable for the publication of the commission’s proposals, which were due before St Andrew’s Day last year, with the draft clauses due before Burns Night. I had some engagement in those days with the Scotland Office, the Cabinet Office and the Treasury, and the work that was put into meeting that particular deadline is a great tribute to the staff. Since then, in the light of further discussions, there has been some refinement of the clauses, but we on these Benches believe that the commission’s recommendations and proposals—taking forward, as they did, the agreement among the three party leaders—are delivered in full in this Bill we have before us. The noble Lord, Lord Smith of Kelvin, has also indicated that, and we look forward to hearing more precisely what he thinks about the detailed provisions of the Bill.

We also support the Bill because it is a further step along the road to federalism, which for my own party has been the ultimate destination for many years. Indeed, the Scottish Liberal Democrats’ contribution to the Smith commission was based on Federalism: The Best Future for Scotland, the report produced by a commission chaired by my noble friend Lord Campbell of Pittenweem. We very much look forward to hearing his maiden speech today. He brings to this House great expertise and experience, not just in politics but also outside politics, in particular on this subject. We also look forward to the maiden speech of our fellow member of the Faculty of Advocates the noble Baroness, Lady McIntosh of Pickering.

While it is important that we support this Bill, as the noble Lord, Lord McAvoy, echoed, the House must do its job properly—a job of proper scrutiny. I think that is more incumbent on us, given that the three principal parties actually agree on the Bill. As I said at our briefing last week, I think we should be haunted by the Child Support Agency which went through Parliament with the support of all parties. Those of us who were Members of Parliament at the time know how much our constituency mailbags and surgeries expanded because, I think, something that was agreed by all parties did not perhaps get the scrutiny that it should have had. If we seek to improve on the Smith commission proposals and do so in the spirit of the commission, then we should feel that we can certainly do so.

[Lord Reid of Cardowan]

In fairness, since the noble and learned Lord said that we have to give this scrutiny, I should ask him the same question that I asked my noble colleague here. How can we give it scrutiny if an essential, central, crucial part of it—the fiscal framework —is not available for us to scrutinise? Does he have a view on how it might proceed? My noble friend gave us his view that we should have a degree of trust and wait to see how things develop. Does the noble and learned Lord have a view?

[Lord Wallace of Tankerness]

My Lords, I do. If I start answering that partly now, I will probably end up repeating myself. I certainly will address the point that the noble Lord, Lord Reid of Cardowan, asks.

I see the Bill as having a number of different parts, dealing with constitutional issues, fiscal issues, welfare issues and what might be described as miscellaneous provisions issues. On the constitutional issues, the commission recommended that,

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”,

and that,

“The Sewel Convention will be put on a statutory footing”.

Clause 1 of the Bill does indeed state that the Scottish Parliament and the Scottish Government are permanent institutions, and it is claimed, as the Minister said, that it should not encroach on the sovereignty of Parliament. I certainly believe that federalism would be a better guarantee of the long-term establishment and entrenchment of the Scottish Parliament, but that is not on offer—it was not before the Smith commission.

During the Scottish Constitutional Convention—there are a number of noble Lords present who were party to that convention—we had many agonising debates as to how we might best entrench the Scottish Parliament that we were intent on establishing. We came to no really good conclusion. When the Labour Party, in Opposition in 1996, recommended and proposed a referendum, my party colleagues and I were opposed to that. In retrospect, I think we were wrong. The fact that we had a referendum in 1997 with such an overwhelming result—both on the Parliament itself and on its tax powers—means that there was a political entrenchment that no amount of legal debate, legal argument or legal wording was ever going to establish. While it is undoubtedly the case that, technically and legally and in constitutional theory, Parliament can repeal what has been said here, nevertheless the fact that it is suggested that there should be a referendum before there is any abolition of the Scottish Parliament lends a political entrenchment which is very welcome indeed.

With regard to Clause 2, I note that what is in the Bill is almost literally what the commission proposed—that it should put on a statutory footing the Sewel convention—because it states:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

Those are the words that Lord Sewel used on 21 July 1998. Of course, in practice, legislative consent Motions have been extended by Devolution Guidance Note 10 to include Bills in the United Kingdom Parliament which confer new powers or responsibilities on Scottish Ministers and the Scottish Parliament. By definition, if we are conferring new powers, the powers cannot already be devolved. My question for the Minister is: why is the clause limited to the very narrow, literal expression used by Lord Sewel in July 1998? In practice, that wording plus Devolution Guidance Note 10 has worked. Strictly speaking, this Bill does not require a legislative consent Motion because it is conferring new powers on the Scottish Parliament. Are two categories of legislative consent Motions envisaged and, if not, why not just put the whole practice of legislative consent Motions on to the statute, rather than limit it to the words of Lord Sewel during the passage of the Scotland Act 1998?

With regard to welfare powers, we believe—and it was reflected in the outcome of the Smith commission report—that it is consistent with the principle of securing a social union that many welfare benefits are rightly reserved to the Westminster Parliament, but we support the proposals for the Scottish Parliament to have power to create benefits in the areas of its devolved responsibility: housing, carers, disabilities and discretionary payments in areas of welfare. As the noble Lord, Lord McAvoy, said, no doubt they need to be looked at in more detail so that they deliver what was said on the packet, and we will certainly do so.

It is also important to remember that with that power goes responsibility. There is not much point if people go around promising more in terms of top-up benefits unless they are prepared to say where the money will come from to pay for them. It is an inevitable consequence of having a mixed welfare system—partly devolved, partly reserved—that the Scottish Government and the United Kingdom Government will have to work more closely together. That in itself cannot be a bad thing; we hope that it will generate more collaborative working than we have sometimes seen in the past.

The amendments made in the other place have to some extent taken away the concern that there was a veto, which is welcome. I always thought that the veto case was totally overstated. I think it is a question of practicality. I remember that when I was in the Minister’s position of having to answer to your Lordships’ House, I asked: “What is actually meant by this?”, when we were dealing with the draft clauses. The example given to me was: “If the Scottish Parliament decides that it wants to have a top-up benefit for left-handed redheads, frankly, the social security system does not have a database for that, so we could not agree to it until such time as we had one”. It was therefore not unreasonable that such a mechanism was included to allow the practicalities to be resolved.

There are one two other specific provisions. The commission recommended that there should be,

“a formal consultative role for the Scottish Government and the Scottish Parliament in designing renewables incentives and the strategic priorities set out in the Energy Strategy and Policy Statement”.

Clause 58 refers to “Renewable electricity incentive schemes”, but it does not refer to heating schemes. I am not sure that any explanation has been given as to why heating schemes should not be included, given the wider remit of the Smith commission proposals.

I echo some of the comments made by the noble Lord, Lord McAvoy, on equality. However, I think it is important that we ensure that the basis of equalities legislation in the United Kingdom is in no way diluted through devolution.

With regard to the Crown Estate, the commission recommended that there should be devolution of management to the Scottish Parliament—or, more practically, to Scottish Ministers—and onward devolution to the communities of Orkney, Shetland and the Western Isles, and indeed, other local authorities. Many of us here are hugely suspicious about whether a Government in Edinburgh who seem to spend all their time centralising, as the noble Lord, Lord Maxton, said during Questions today, will actually adopt the spirit of decentralising power further. The noble Lord, Lord Smith of Kelvin, in his personal comments on the commission, stressed the importance of devolution going beyond Edinburgh. We may wish to examine amendments along the lines of those moved by my right honourable friend Alistair Carmichael in the other place to leapfrog, as it were, and genuinely ensure the empowerment of local communities.

Turning to the fiscal powers, we now have full income tax, aggregates tax, air passenger duty—the latter, too, having been recommended by the Calman commission on which I served. Can the Minister indicate why aggregates tax is included now? We did not include it before because we were awaiting judgments from the European Court of Justice. An update on where we are on that, and why the Minister thinks it is possible now when it was not in previous legislation, would be welcome.

We owe it to your Lordships’ Select Committee on Economic Affairs to respond to the report that it has given us, which undoubtedly has aroused some controversy. I certainly understand and recognise the frustration that we do not yet have the fiscal framework. In response to the noble Lord, Lord Reid of Cardowan, I believe that it is important that we should have sight of that at some stage in our proceedings, but I just utter this word of caution. We cannot do this in a political vacuum. Delaying the Bill at this stage would effectively give the SNP Government a veto on the progress made, and that would not be particularly desirable either. The Minister said that John Swinney was on record saying that he wanted this agreement. We must take that at face value, but, equally, those of us who are immersed in Scottish politics well know that, if something went wrong and we did not manage to reach agreement, they are the masters and mistresses of turning that to their account, and the finger of blame would point unequivocally at your Lordships’ House. Those who have made milking grievances a master art would be only too pleased to have a narrative of betrayal.

[Lord Reid of Cardowan]

I have a great deal of sympathy with what the noble and learned Lord says, because, on the one hand, we have the cause of rational scrutiny, and on the other the imperative of politics—of keeping a vow. My worry is actually politics: I worry that, in capturing the minutes, we will lose the hours. In other words, if the criticisms being made are correct, then we might have a political storm at present if we were to do as was suggested and in any way delay the Bill, but if the criticisms are correct, we will have decades of such grievances and political problems in future. I probably come down on the same side as the noble and learned Lord on this: the imperatives of the politics are necessary today, but it is essential that the Government recognise that this fiscal framework has to come back at some stage before we get to the end of this process. Otherwise, we are having to make the devil’s alternative choice.

[Lord Wallace of Tankerness]

My Lords, nothing I said takes away from what I said at the outset: that it is very desirable that we see the fiscal framework. The Government should take from all sides of the House that there has been a view to that effect. While I think it is nonsense to expect the Government to reveal their negotiating hand in this debate, it is not unreasonable to ask, perhaps, for more transparency to show that progress is being made, and for the Government to enunciate some principles as to what they wish to see in the fiscal framework.

For example, one hopes that the Government’s negotiating stance is to seek fairness on all sides—for Scotland and the rest of the United Kingdom. Their role is to take in the whole of the United Kingdom, not just the rest of the United Kingdom. The no-detriment principle should be at the point of devolution: that there is no detriment one way or the other when a particular tax is devolved. There should be a form of indexation—I do not underestimate the difficulties, but it should be one which in itself is neutral, with an automatic mechanism to avoid an annual row.

Scotland within the United Kingdom

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Monday 13th October 2014 Lords Chamber

[Lord Wallace of Tankerness]

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

[Lord Reid of Cardowan (Lab)]

My Lords, without extending the—

Glasgow Helicopter Crash

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Monday 2nd December 2013 Lords Chamber

[Lord Wallace of Tankerness]

I acknowledge the experience of my noble friend and share his view that it is important. I believe it is the case that the Air Accident Investigation Branch conducts these inquiries and investigations thoroughly and to the highest standards. Once the AAIB has the details on the cause of this tragic accident, it will be a matter for the Civil Aviation Authority to consider what action may be necessary, and to ensure that these matters are proceeded with, regarding the overwhelming requirement for safety in these operations.

[Lord Reid of Cardowan (Lab)]

I thank the Minister for his Statement, and particularly for his generous tribute to our parliamentary colleague, Jim Murphy. Although he is a self-effacing character, in a sense I think he recognised that what he did was pretty ordinary for Glasgow where, perhaps because of the industrial culture and legacy, there is a tendency to run towards the danger when others are in danger. In any case, however it may surprise others, it remains inspiring. I obviously associate myself with the condolences for those who have lost loved ones or family, and those who are injured. I will ask the Minister one question. I understand he said that the search continues inside the Clutha Bar for others who may be there. Does he have any information as to whether there are known and identified persons, without any names, who are still unaccounted for—or is it simply a matter of searching the bar itself?

[Lord Wallace of Tankerness]

My Lords, I note again the point made by the noble Lord with regard to Jim Murphy. I rather suspect that the self-effacing way in which Jim handled the interviews was because he recognised that he was not alone among those who responded to that situation. I cannot, because I do not have the information, go beyond what I said—and what the Secretary of State said when he stood up and made his Statement in the other place—which is that the search of the building continues. I am not aware of the position regarding people who may have been missing and identified. I know some concerns have been expressed by victims, and some frustration. That is totally understandable in the circumstances. Equally, Deputy Chief Constable Fitzpatrick, who has already been referred to, said:

“The uncertainty for the families of those who have died is at the front of our minds … It remains our absolute priority to give clarity to those affected as soon as we are able”.

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Wednesday 16th January 2013 Lords Chamber

[Lord Wallace of Tankerness]

That is an important point, and I take it on board. It is also important to make clear that service declaration, to which I referred, is now valid for five years, following legislation that took effect in March 2010. Those who have already made a service declaration which gets them on to the Scottish register will have that for the five years after March 2010, so they will certainly have it for the time of the referendum.

[Lord Reid of Cardowan]

I am grateful to the Minister for that. Knowing how bureaucracy can ensure that the best laid plans gang aft agley, can he ensure that there is a distinct recognition in the Ministry of Defence that this is different from the normal, annual registration, for this reason: you have go to every serviceman and woman? From what he said, there may well have to be a process to identify those who have the qualifying criteria of having had a residence in Scotland, and so forth. If that process is not started early, we will find, as we did many years ago, before we brought in the new regulations, that for purely bureaucratic reasons, servicemen and women and their families are not adequately informed—especially, as my noble friend Lord McConnell said, in time. That process has to start now. It is quite a big job weeding out, if you like, or identifying people, rather than applying a carte blanche regulation for everyone.

[Lord Wallace of Tankerness]

My Lords, the noble Lord makes an important point. I will certainly ensure that his comments and the general sense of the House is drawn to the attention to the Ministry of Defence. No doubt Questions can be asked to ensure that we live up to that.

Finally, my noble friend Lord Forsyth quite properly said that there should be no room for complacency. That was echoed by other noble Lords, including the noble Baroness, Lady Liddell, and the noble Lord, Lord Empey. I could not agree with them more. I have said—although I do not think it was from the Dispatch Box—that the biggest enemy that those of us who wish to remain part of the United Kingdom have is complacency. We must guard against it, not simply because I want to win—I want to win very convincingly indeed. I certainly take the point about differential turnout made by the noble Lord, Lord Empey, and very much believe that we should guard against complacency.

My noble friend Lord Forsyth and the noble Baroness, Lady Liddell, asked about information. I suspect that we will not get a completely neutral arbiter, although some bodies are producing evidence from a more neutral point of view. The noble Lord, Lord Nickson, who I think is a former chair of CBI Scotland, appropriately raised the pertinent questions that CBI Scotland is addressing to the Scottish Government.

The Government have made it clear that we will be publishing material to provide information, not least about the number of jobs provided by the defence industry and what benefits being part of the United Kingdom bring to Scottish security. It will also set out facts, which are perhaps currently unknown or often just taken for granted. In that regard, it will include the importance of our position in the world. Scotland is part of the United Kingdom which punches much above its weight in terms of our population and because of our history, to which Scotland has contributed. It will talk about the protection of our citizens. It will talk about the many economic benefits to the United Kingdom.

The first of those papers will be published in the next few weeks, and we will publish further papers throughout 2013. I hope that that brings important information, which we will all be able to use in our arguments for the furtherance of the United Kingdom.

My noble friend Lord Forsyth and I were both elected to the other place 30 years ago this year, and I have known him all that time. We have disagreed about a number of issues, not least Scotland’s constitutional future, but I have always respected where he comes from on that and the important issues that he has raised this afternoon. One issue on which we can join together is that it is very important that we join together people right across this Chamber who believe that Scotland is better as part of the United Kingdom and the United Kingdom is better with Scotland in it; that we share a common heritage; that we share common social bonds; that we have a shared cultural heritage with, fundamentally, shared political values; and that we can defend them much more effectively in an uncertain and challenging world when we are working together. It is in that spirit that I want to argue that case, and I urge your Lordships to approve the order.

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Monday 23rd July 2012 Lords Chamber

[Lord Reid of Cardowan]

I thank the noble Lord for that remark. Again, I am not on the Front Bench so I am not making their arguments for them. I am making my argument. As far as the security situation is concerned, whatever is said by the Front Bench, for more than half of the past 10 years we have been either at “severe”—the second highest level—or “critical”, which is not only a likely but an imminent threat of terrorist attack. This demonstrates the fact that we are discussing not a normal security situation but a very difficult one—not least as we approach the Olympics.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have tabled these amendments and who have taken part in this debate. The noble Lord, Lord Reid of Cardowan, has given a context to these deliberations. I think that he would agree with us—and I mention here the intervention of my noble friend Lord Lester—that justice or security is not a binary choice. This is a justice and security Bill, not a justice or security Bill. As we deliberate and go through these provisions, it is important that we seek to uphold the national security, which is a responsibility above all on the Executive, and also ensure that the values of justice—which is a cornerstone of what we believe in and what makes us as a nation—are upheld.

The comments of the noble Lord, Lord Reid, may also have some pertinence as we move to the next stage of the Bill, which deals with the Norwich Pharmacal jurisdiction. He pointed to the importance of trust and the consequences of breach of trust.

As an introductory comment, perhaps I may say to the noble Lord, Lord Pannick, that my noble friend and I will write to him about the point he raised about the last set of amendments. I do not think it would be appropriate, when dealing with these amendments, to rerun the arguments put forward for the previous group. However, before Report stage, we will write to noble Lords who took part in that debate.

Understandable concerns have been raised. In many Bills I have taken part in, quite proper discussion takes place about the use of secondary legislation, its appropriateness, the circumstances under which it should be used, and its actual nature. If Amendments 69A or 70 were to be accepted, as my noble friend Lord Hodgson has said, it would remove the order-making power entirely. The question posed by the amendments is this: why do we need the order-making power at all?

Perhaps I may set out why the Government arrived at the approach we have taken in the Bill with regard to the definition of “relevant civil proceedings”. In the Green Paper, the Government consulted on making closed material proceedings an option for any civil proceedings in which sensitive material was relevant. However, the firm steer from the consultation exercise was that the scope of the Bill should be narrowly focused. That was a point made by my noble friend Lord Marks and in the comments of my right honourable friend the Lord Chancellor. After careful consideration of the consultation responses, the Bill provides that closed material proceedings can be used only for hearings in the High Court, the Court of Appeal and the Court of Session. It is in these courts that the difficult cases have arisen, so the Government have defined relevant civil proceedings narrowly in the Bill.

If that is the case, why do we need an order-making power to extend the definition? As was indicated by the noble Lord, Lord Soley, when he quoted from the memorandum that was submitted to the Delegated Powers and Regulatory Reform Committee, the point is that the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings. Naturally, we may be asked if we have any particular case in mind. I reassure your Lordships that if there was an obvious example of a difficult area, we would be making the case for its inclusion in the definition of relevant civil proceedings today. But it is possible that difficulties may arise in areas wholly unexpected or unanticipated, and it would then be important that CMPs were available as a matter of some urgency. Noble Lords may be aware that Parliament has already legislated 14 times to provide CMPs in different contexts, and therefore it is not inconceivable that some new context that we cannot foresee today will arise in the future in which they will be necessary.

Perhaps I may say in response to the noble Baroness, Lady Turner of Camden, who asked about employment tribunals, that legislation is already in place with regard to closed material proceedings in such tribunals. Indeed, it was the subject matter of the deliberations of the Supreme Court in the case of Tariq, the judgment of which was reported either last year or earlier this year. The current review of employment tribunals by the Department for Business, Innovation and Skills does not have anything to do with closed material proceedings.

The crucial thing about the power is that it is subject to the affirmative procedure, which means that the exercise of the power would have to be debated and approved in both Houses before being made. Before gaining that approval, the case for change would have to be made to each House on the basis of evidence that is sufficient to convince both Houses. I cannot for a moment imagine that it would be given a clear ride. That is a safeguard and it means that rather than standing here and trying to persuade your Lordships that a broader definition of relevant civil proceedings is needed for the sake of flexibility, the Government will have to put their case at the time of seeking approval of an order.

As has been said, the order-making power has been the subject of scrutiny by both the Delegated Powers and Regulatory Reform Committee, of which the noble Lord, Lord Soley, and my noble friend Lord Marks are members, and the Constitution Committee. The Government appreciate the careful consideration that both committees have given the power. I note that neither committee recommended the removal of the power, but it is fair to note, and as was pointed out by the noble Lord, Lord Soley, and quoted by the noble Lord, Lord Butler, that the Delegated Powers and Regulatory Reform Committee had reservations about the scope of the power. However, it concluded tentatively but nevertheless clearly that it would not recommend that the delegation of powers is inappropriate.

No doubt members of the committee will know better, and I will come on to address the issue of coroners’ courts shortly, but paragraph 6 of its report indicated that one of the concerns was extending the use of this power to those courts.

Scotland: Constitutional Future

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Monday 26th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

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

[Lord Reid of Cardowan]

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

[Lord Wallace of Tankerness]

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

Scotland Bill

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Wednesday 21st March 2012 Lords Chamber

[Lord Wallace of Tankerness]

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

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

[Lord Reid of Cardowan]

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

[Lord Wallace of Tankerness]

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

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

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

[Lord Reid of Cardowan]

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

[Lord Wallace of Tankerness]

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

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

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Thursday 20th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

I have no reason to doubt that. These are examples of island communities which are linked to and can readily be combined with the mainland.

We took extreme geographical circumstances into account. If the preserved constituencies were linked and combined with part of the mainland, their surface area would almost inevitably be larger than that of the largest current constituency. In the course of our debates in Committee, concerns have been expressed by many noble Lords about the distances which people have to travel. I recall in one debate—I cannot remember which of the many—someone talking about the possibility of having to drive for two-and-a-half hours to get to a place. In Orkney and Shetland, it can require two-and-a-half hours even to get to one part of Orkney, let alone travel from Orkney to Shetland—you can travel from Orkney to Shetland by plane, but you then have to go very much further again.

[Lord Reid of Cardowan]

The Minister is giving us not a principle but a geographical description, and saying that those places are geographically different. But so is Argyll; so are many of the other examples given. So I have to ask the Minister again: what is the principle by which these places are being distinguished from the other examples being given? The distances are similar to those in Argyll; the size of Argyll is some 2,000 square miles.

[Lord Wallace of Tankerness]

I rather suspect that the noble Lord was not listening as attentively as he would normally do, because I said that those constituencies had been excepted because they were dispersed island groups which could not readily be combined with the mainland. By definition, Argyll and Bute is already a set of islands which has been readily combined with the mainland and which over many decades has been represented by very distinguished, hard working Members of Parliament—I think back to Michael Noble and my late noble friend Lady Michie of Gallanach. It is now represented my colleague and honourable friend Mr Alan Reid. The two preserved constituencies are not readily combined with the mainland. If they were to be so combined, they would be part of constituencies whose surface area would be larger than the largest constituency. Let us remember, when we talk about surface area, we are not talking about areas of sea as well, which would not be counted into surface area. The most recent judgment of the Boundary Commission was that the maximum size of a constituency should be what was manageable for constituents and MPs. That is why we brought forward the other rule, rule 4, which sets a physical, geographical size limit, just by sheer reference to manageability. It perhaps cannot stand as a legal principle, but trying to make sure that you do not go beyond a certain extreme of manageability is surely in the interests both of the Member, of whichever party, and the electors, who have to make contact with their Member of Parliament.

I think that it was being implied by the noble and learned Lord that there is some political motivation behind the proposal. As I have said, it is obvious from the extreme geographical position of the two constituencies why they have been exempted. Although Orkney and Shetland has been represented by a Liberal or a Liberal Democrat for the past 61 years, I am sure that the noble and learned Lord will acknowledge that, until 1997, the Western Isles had a Labour Member of Parliament—indeed, until 1970, when the late Donald Stewart won the Western Isles, it had been represented by the Labour Party from the 1930s. I am sure that his colleagues in the Labour Party in the Western Isles have no intention of giving up their aspirations for that seat. Our approach is in no way partisan; it is a recognition of geography.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Reid of Cardowan

Tuesday 18th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

This point may be what the noble Lord, Lord Reid, wanted to pick up on. I tried to indicate that we believe that 5 per cent, which is 10 per cent because it is 5 per cent each way of the halfway mark, allows the flexibility to take into account quite legitimate concerns. Some noble Lords were present at earlier debates when former Members of the other place were talking about the importance of the bond between a constituency and a Member. We believe they can be taken into account, bearing in mind the factors that the Boundary Commission is entitled to take into account and the extent that it thinks it should take them into account.

[Lord Reid of Cardowan]

Does the Minister recognise that in addressing one problem in a fair system—arithmetical equality, which we accept is a problem—he has created another that tends to undermine the second element of the British system, which is democratic accountability to recognised communities with culture and common links? He has done that by shifting the primacy in that relationship further towards arithmetical equality. In so doing, and by keeping it within a narrow band, he has hugely undermined the other element, which is the point that has been made today in practical terms. Does the solution of strengthening the arithmetical primacy but at the same time allowing a greater flexibility in the arithmetic, the solution put forward by my noble friend and learned friend Lord Falconer of Thoroton, not get him out of this hole?

[Lord Wallace of Tankerness]

The noble Lord, Lord Reid, sets up and explains the competing issues quite succinctly. I am trying to argue that the present arrangements have at their core a rule that states that constituencies should keep as close as possible to the electoral quota, but then import other rules that, as we can see by the outcome, drag them further away from that electoral quota and lead—