Scotland: Constitutional Settlement

Lord Wigley Excerpts

Tuesday 10th March 2015 Lords Chamber

[Lord Wallace of Tankerness]

My noble friend is right to remind us of what we might have been facing if Scotland had voted yes and of the black hole which would have emerged. It is also important that we continue that engagement; certainly, at the stakeholder event which I attended in Aberdeen there was considerable enthusiasm for the proposals that have been put forward. People very much welcomed the fact that the United Kingdom Government were engaging but it is important that the Scottish Government engage as well.

[Lord Wigley (PC)]

My Lords, to what extent does the noble and learned Lord accept that opinion polls in Scotland are a reflection on the reaction to this document? Have the Government ruled out any form of federal solution that brings stability with it and if there is to be a convention, can he give some assurance that it will not take as long as the investigation by the Kilbrandon commission, which took more than five and a half years and just kicked the problem into the long grass?

[Lord Wallace of Tankerness]

My Lords, the noble Lord knows the position of my own party with regard to federalism but we are not there yet. However, I believe that by implementing the recommendations of the Smith commission in these proposals, we will ensure that we are honouring our commitment. I take his view that a constitutional convention should not be an excuse for kicking this issue into the long grass. I was a member of the Scottish Constitutional Convention, which produced the blueprint for the Scottish Parliament that was legislated for by the Labour Government in 1997.

Scotland: Devolution Commission

Lord Wigley Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, on my noble friend’s latter point, the Government have indicated that they will bring forward draft clauses and, indeed, will do so by Burns Night, 25 January 2015. My noble friend makes an important point about the importance of ensuring that people in Scotland know what these proposals will be. We have sometimes undersold the very significant additional powers that have been made available to the Scottish Parliament under the Scotland Act 2012.

[Lord Wigley (PC)]

My Lords, does the noble and learned Lord accept the words of the Prime Minister at Question Time today when he confirmed that full fiscal autonomy and full control of Scottish taxes were within the options of the Smith commission? If that is so, how can it be achieved within a unitary state, and does it not beg the question that, inevitably, we must move towards a federal or quasi-federal structure?

[Lord Wallace of Tankerness]

The noble Lord knows what my party’s position on federalism has been for the last 100 years-plus. However, the important thing is that the noble Lord, Lord Smith of Kelvin, and his commission are allowed to get on with their work on the basis of the submissions made to them and do not feel in any way that they are being hidebound by the views of either the Scottish Government or the United Kingdom Government.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Wigley Excerpts

Tuesday 21st January 2014 Lords Chamber

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

My Lords, the Government signalled during Report that they would bring forward a number of technical, clarificatory amendments for Third Reading. Amendments 1 and 17 are such technical drafting points. These amendments relate to Amendment 38 debated on Report, which adjusts the code of practice defence for third parties. As I indicated on Report, there were two points of detail we wished to put right. The defence should also apply to a situation where expenditure may have been incurred on behalf of the third party. It should also apply for a charge in relation to a targeted expenditure offence. These amendments do just that.

This group of amendments also includes amendments relating to the use of Welsh translation and the Welsh language. I am not sure whether the noble and learned Lord, Lord Morris of Aberavon, is present, but I will leave it to him and the noble Lord, Lord Wigley, to speak to those amendments. I should just put on record that we are very grateful to the noble and learned Lord and to the noble Lords, Lord Wigley and Lord Elystan-Morgan, for their constructive engagement on this. I think that we have arrived at a satisfactory outcome. I beg to move.

[Lord Wigley (PC)]

My Lords, I apologise that I arrived in the Chamber slightly late due to the crush of noble Lords seeking to leave it. I thank the Minister for the movement that he has made on the interpretation of the amendment that was put down by the noble and learned Lord, Lord Morris of Aberavon. Clearly, the Minister’s intention—and our intention with our amendments put forward earlier—was to ensure that not only the literal translation costs but also the costs of implementing that translation were allowable; otherwise, it would not be meaningful. The Minister has now accepted that principle, for which we are very grateful. It will be welcome in Wales.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Wigley Excerpts

Wednesday 15th January 2014 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I am grateful to the noble Lord, Lord Gardiner of Kimble, for the unfailing courtesy in the discussion that we had on my amendment. When I moved a similar amendment in Committee, with the support of a number of my noble friends and no one dissenting, I said that I hoped that I and all of us concerned with the status of the use of the Welsh language had nothing to worry about. Now the Government have tabled Amendment 44, which includes such provision in new paragraph 1A(1)(b), and I welcome that as a very important step indeed.

Given the history of the success in ensuring equal validity for the language over the years, I presume the failure to include in the Bill a declaratory statement of the kind now in the Government’s amendment was an unintended omission. I was particularly encouraged by the considered statement of the noble Lord, Lord Gardiner, in his reply to the previous debate, where he stated that,

“the Government believe that the Welsh Language Act 1993 includes an obligation to treat Welsh and English on an equal basis and that there is a strong and compelling case for translation costs to be excluded”—

that is, excluded from the ceiling. He added, with regard to the references that had been made to the history of the language, that,

“the Government will consider how this exclusion would operate and will want to return to this important issue on Report”. —[Official Report, 16/12/13; col. 1093.]

That is what they have done, and I welcome that. Hence my noble friend and I tabled the original amendment, and I am grateful for the support of all who spoke in Committee.

The Minister said that there is “no legal obligation” to translate election material from English to Welsh and vice versa, and that is absolutely right. In reality, however, given the sea change in the use of the Welsh language in Wales, in some parts in practice it would not be possible to make any electoral headway without the use of both languages. All parties in Wales recognise this and implement the public expectation of the use of both languages. Indeed, in my time as a constituency Member of Parliament, this is what happened and many people made representations to me in both languages.

The Welsh Language Commissioner, Meri Huws, was concerned about this lacuna in the Bill and sought my support. The Bill defines “controlled expenditure” to include,

“the production … of material which is made available to the public at large”.

Since the cost of translation of electoral material falls within that definition, the commissioner was concerned that the reduced expenditure would adversely affect the provision of bilingual election material in Wales. Non-political organisations might well choose not to use bilingual election material. That was the issue. The mischief which concerned the Welsh Language Commissioner was the possible inhibition of third parties from issuing bilingual material.

I would argue that the Government have sought to meet our need. You cannot translate anything unless you have an original document. Material produced for the public at large by definition includes the production cost. The bilingual production of the document for translation is a preliminary step towards its publication, so it is totally unreasonable to limit the exception to, for example, the actual payment to the translator, which could be quite small. Following my conversation with the noble Lord, Lord Gardiner, this morning, I hope that the noble and learned Lord, Lord Wallace, who I understand will reply, will give me the assurance I seek that “production” is basically a part of the process leading to the translation. Any other interpretation would put my noble friends, and indeed the Government, in an impossible situation.

Let me describe the situation where I was wrong and the expenditure was confined strictly to the actual costs of, for example, paying the translator. Whereas in England the NSPCC may issue material only in one language, the NSPCC in Wales would be obliged to prepare and translate a similar document in both languages. If the whole costs could not be excluded from the expenditure ceiling, that would certainly inhibit it from doing what it would like to do. If I am wrong—perhaps those advising the Minister will want to consider the reply, which I am sure will be helpful—the mischief of discouraging people from producing bilingual pamphlets and material would still be there.

I hope very much that I can have the assurance that I want. I refer again to what the noble Lord, Lord Gardiner, said in Committee, that the Government want to fulfil their obligations,

“to treat Welsh and English on an equal basis”.—[Official Report, 16/12/13; col. 1093.]

I hope and believe that the legislation should leave this House on as perfect a basis as possible.

[Lord Wigley (PC)]

Before the noble and learned Lord sits down, can he emphasise that the cost of production includes additional paper and printing as well as the cost of translation? That is the point where his amendment, to which my name is attached, has merit over and above the Government’s amendment. There needs to be clarification that the cost of production includes the extra costs related to having the production in two languages.

[Lord Morris of Aberavon]

Given that the definition I have quoted refers to “production of material”, I assume that that material is included in the definition. You cannot usually translate anything unless you have something on paper to look at, which enables you to translate it. Therefore, this is an initial step in production. I emphasise, for the third time, that the definition refers to,

“the production … of material which is made available to the public”.

--- Later in debate ---

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

My Lords, first, I thank those who have contributed to this debate, in particular those who have welcomed the government amendments. We certainly sought to listen and take on board comments from a wide range of those engaged in campaigning. I pay tribute to my noble friend Lord Wallace of Saltaire, who met far more groups than I did. These meetings and deliberations, and indeed the contributions made in Committee in your Lordships’ House, have very much informed the proposals that we have come forward with today. Again, I thank the noble and right reverend Lord, Lord Harries of Pentregarth, and the other members of the Commission on Civil Society and Democratic Engagement for their contribution to this debate.

The purpose of Schedule 3 is to extend the range of activities for which a third party incurs controlled expenditure. It takes forward a recommendation from the independent Electoral Commission to align the range of activities for which third parties incur controlled expenditure with that for political parties. The Electoral Commission has highlighted that there is no clear reason why controlled expenditure for third parties applies only to election material. This difference means that a potential gap arises in the rules governing elections in our country.

The Government and the Electoral Commission believe it is important that this potential gap in the regulatory regime is addressed. However, the Government also acknowledge some important issues that have been raised, not only by noble Lords but a number of campaigning groups. As such, we have tabled a number of amendments to Clause 26 and Schedule 3. I will take the opportunity to explain what they do.

Currently, the regime under the Political Parties, Elections and Referendums Act 2000 outlines specific activities that do not incur controlled expenditure. These include volunteers, publications which are not advertisements in newspapers, broadcasts on certain channels such as the BBC or S4C, and certain reasonable personal expenses. Government Amendment 37 removes these exclusions from Section 87 of PPERA and Amendment 44 inserts them into new Schedule 8A and expands the types of expenses that are excluded from incurring controlled expenditure.

The full range of exclusions that the Government have brought forward includes amendments to expenses in respect of the translation of materials from English to Welsh or Welsh to English. I shall say something about the important points made by the noble and learned Lord, Lord Morris, and the noble Lords, Lord Wigley and Lord Elystan-Morgan. At present, controlled expenditure is incurred on the production and publication of election materials, such as leaflets. The Bill retains this, but costs associated with translating these materials from English to Welsh or vice versa will be excluded. The noble and learned Lord, Lord Morris, said he hoped that this was an oversight and that it was not there in the first place. If there was an oversight, and I think there probably was, it was probably also an oversight in the 2000 Act, because election materials are covered by the provisions in that Act. I hope, albeit belatedly, that there is considerable cross-party and non-party consensus that it is something we should be doing.

The Government believe that this highlights the importance of the Welsh Language Act 1993, which treats the Welsh and English languages as equal. It follows the practice of producing election material and ballot papers in Welsh. We are grateful to the noble and learned Lord for raising this issue in Committee. He asked about production costs. When we are giving something it is easy to say that it is not as much as you thought we were giving, but we believe that extending the exemption further than the cost of translation would go too far. It would allow campaigns to print different material for different addresses without being regulated. For example, if a campaigner prints 100 leaflets in English, he can then print 100 leaflets in Welsh for an entirely different purpose. Therefore, we thought it important that this amendment should relate to the cost of translation, rather than the production of material.

Indeed, that is what we thought was intended by the noble and learned Lord’s amendment, when it says that production,

“shall not include costs incurred by the translation of those materials from English into Welsh or from Welsh into English”.

Indeed, the Government’s amendment refers to,

“expenses incurred in respect of the translation of anything from English into Welsh or from Welsh into English”,

which may even go further—there may be expenses other than translation expenses. I want to make it clear that we think, having considered this, that to relate it to the publication costs—to the printing of the leaflets—goes further than is needed to address the important point about Welsh translation.

[Lord Wigley]

Surely the Minister accepts that if an organisation—say, the NSPCC—requires a leaflet to be put out in England and in Wales, in England it might be in other languages but it need be only in English to meet the law. In Wales, it would be in Welsh bilingually with English. Sometimes that can mean double the size of the leaflet. Sometimes it might be constrained to six instead of eight pages in the way that bilingualism can be laid out, but the cost of producing something in a bilingual format for the customers is significant because of the print and the paper, not just the time taken to translate a leaflet. That is relative peanuts in the operation. If the Minister is excluding the other parts, there is a very serious implication.

[Lord Wallace of Tankerness]

My Lords, as I have indicated, we thought that the amendment that the noble Lord, Lord Wigley, has signed did not actually go further than we were going. I think there has been a proper debate on this. I do not want to mislead the House into thinking that we are willing to countenance in the Bill an opportunity to exploit it and to double up on the number of leaflets. I hear what the noble Lord says and, subject to what I have already said about not wanting to incur a loophole, I am prepared to consider whether the wording reflects what might be called a marginal cost of translation but not costs that might allow more leaflets to be published. The noble Lord is nodding his head; perhaps he agrees that that is not an unreasonable position.

I hope that the noble and learned Lord, Lord Morris, will agree that it is not entirely clear that these additional production costs were covered by his amendment either. Certainly, we did not think they were.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Wigley Excerpts

Monday 16th December 2013 Lords Chamber

[Lord Wigley (PC)]

My Lords, I am grateful to pursue the theme that has been running for the past few minutes, and to give support to the amendment in the name of the noble and right reverend Lord, Lord Harries. As the noble Lord, Lord Elystan-Morgan, said, it is a poignant moment for the Welsh language, in that the late Lord Roberts of Conwy is no longer with us. He played a major part in the 1993 Act and many other aspects of the Welsh language gaining status. Of course, the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Elystan-Morgan, played roles as government Ministers when the 1967 Act was passed. That Act changed the status of the Welsh language fundamentally, bringing in the concept of equal validity. However, for equal validity to work, it presumed that the individual could have access to both languages. The corollary to this was the development of the availability of forms and information in Wales through the medium of Welsh as well as English in order to respond to that principle and put flesh around it.

Over the past 40 or 50 years, there has been tremendous acceptance of Wales as a bilingual community. Campaigning organisations in the voluntary as well as the governmental sector have come to recognise the need, in order to allow citizens to have their full rights with regard to the language, to pursue, as far as is practical, a bilingual policy. Official bilingualism is what makes personal and private equal validity a meaningful concept. Some organisations may feel the additional costs that inevitably go along with publishing things in two languages to be a burden. Some organisations may, frankly, be glad of an excuse not to do it. If that were the case, it would be a step backwards—a step that might start unwinding the consensus that has been achieved with considerable difficulty and after a lot of campaigning across the political sectors. I therefore urge the Minister to give serious consideration to the principles behind this amendment and to agree, if assurances regarding the fears that have been expressed cannot be given now, that at least some thought will be given between now and Report to how these can be accommodated.

The principle of access to information is equally valid for disabled people. I have campaigned very long and hard for many years to make sure that disabled people get the information that they need. Very often, that means providing an approach in individual circumstances, sometimes in group circumstances, as opposed to providing generality. One does not generally see Braille going to every household in case an individual might need it. One might argue that it should, but it is not generally the case. However, with the Welsh language, there is a general approach; both arguments are valid, but valid in slightly different ways and in slightly different circumstances. I hope that the Government will find a way to respond to these different circumstances as they consider these amendments.

[Baroness Mallalieu (Lab)]

My Lords, I support the amendments in my name and that of the noble and right reverend Lord, Lord Harries, to which he has spoken so fully. I have one or two points to add. First, on staff costs, I respectfully suggest that one has to remember that as the regulated activities are going to be expanded, it is inevitable that the staff costs associated with them will grow. How those activities are to be expanded is another matter, but we all agree that there are matters that should now be included that have not been up to now. The growth in staff costs is a further reason for increasing the threshold of spending, not just from the level in the Bill, but from the existing PPERA level, in order to give a fair approach.

Secondly, on translation, I slightly hesitate to raise this matter, but it is sometimes necessary to communicate with communities that do not have English as their first language. Although there has been special pleading on behalf of Wales, which I totally accept and endorse, there may well be other communities for which that may be a legitimate expense in certain circumstances. It may be necessary to communicate, perhaps in Urdu, in relation to a particular campaign. I submit that, in order to enable a campaign to communicate, translation is something that the Minister ought to have uppermost in his mind. It is also right to say that safety and security, which the commission looked at, relates not just to Northern Ireland—although particularly so there—but also to those who steward meetings and so on. That is an expense that is very often essential and ought not to be included in regulated expenditure.

It also seems wrong to proceed with part of the recommendation of the Electoral Commission about staff costs and leave the other part behind. I have in mind the review of the Electoral Commission back in June, which suggested that rules should be widened to include staff costs for political parties. The Bill, of course, does not deal with the political parties, but it seems wrong to advance one and not the other. There should be parity between non-government organisations and political parties in respect of declared expenditure. The Electoral Commission accepted that, so far as political parties were concerned, the matter would be difficult, not straightforward, and would require more consideration because it was so complex. In making the same recommendation for non-party campaigning, it again said that it was complex, potentially controversial, which it certainly is, and needed further consideration.

It seems that there is no real urgency about the question of staff costs being included for the 2015 election. I may be wrong. A spectre was raised by the noble Lord, Lord Greaves, and I have also heard it from Ministers: what about the as yet unidentified ogre who comes out of the woodwork carrying bags of money to throw into an election campaign, perhaps in a particular area, and to distort the democratic process? What about the US-style zillionaires, of which, I have to say, there is no sign in this country? This scenario seems unlikely because we have rather different rules for television advertising and so on. However, if such people really are lurking, ready to come in and try to buy the electoral process here, surely it is for the Government to produce an amendment to the Bill that deals with that situation, rather than simply taking a big stick and thrashing all around, hitting smaller charities and organisations as well. I ask the Minister to agree that, at this stage, it is not really important to include staff costs for the 2015 election, given that we are going to have a review which should take in political parties as well.

Scotland: Independence

Lord Wigley Excerpts

Thursday 28th November 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, clearly, membership of the European Union, in the event of independence, is a very important issue. The novel proposal made by the Scottish Government is one which we will look at but we do not think that it accords with how any other member state has interpreted Article 48 of the TFEU. In any event, even under the Scottish Government’s analysis, it would require other member states to sign up. We certainly note the comments of the Spanish Prime Minister with considerable interest.

[Lord Wigley (PC)]

My Lords, in accepting that this is a substantial document, as indeed has been recognised by the editorial of the Times, will the Minister assure the House that the Government will bring forward an equally substantial document indicating the prospects for Scotland if there is a no answer in the referendum? In particular, will he spell out the Government’s intentions for the future of the Barnett formula in those circumstances?

[Lord Wallace of Tankerness]

My Lords, I think each of the United Kingdom parties has its own arrangements for looking forward to what would happen in the event of a no vote, but first we have to campaign and win a no vote. The United Kingdom Government have already published, and will continue to publish, some substantial documents analysing Scotland’s place in the United Kingdom, the benefits we derive from being in the United Kingdom and the problems and difficulties that would arise if we became independent.

Scotland: Referendum

Lord Wigley Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Wallace of Tankerness]

I certainly agree with my noble friend, and I think I made it clear that the Prime Minister believes in the integrity of the United Kingdom. I believe it was others who suggested that he was a London-based politician. I also hear what he says about so-called devo-max, which is a brand without a product at the moment. I also recognise that that has implications for the other parts of the United Kingdom and that, were we to go down such a road, it would be very important to secure buy-in from those other parts of the United Kingdom.

[Lord Wigley]

My Lords, will the Minister please confirm that the conduct of the referendum in Scotland is now entirely a matter for the Scottish Parliament, and one for which this place has no responsibility?

[Lord Wallace of Tankerness]

My Lords, as noble Lords will recall, we agreed to a Section 30 order under the Scotland Act in January of this year, which transferred powers to the Scottish Parliament to determine the nature of the referendum. A Bill has been brought in for a referendum; indeed, another Bill has been brought in to determine the franchise for that referendum.

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Wigley Excerpts

Wednesday 16th January 2013 Lords Chamber

[Lord Steel of Aikwood]

Indeed, I was going on to say that one of the other uncertainties that has been exposed during this prolonged debate is the question of what currency would be used. If the euro is out, and we are not having a separate Scottish pound because we are going to rely on the Bank of England, what sort of independence is that? So the second bit of unravelling has been on the whole issue of the financing of an independent Scotland.

The third—which has also been mentioned by others so I will not go into detail—is on Trident and the defence role of an independent Scotland. My party and I have long been opposed to the replacement of the Trident system—in fact we were opposed to the initial replacement of Polaris by Trident. That is at least a position of principle, even if people disagree with it. What is unacceptable is for the SNP to say, “We want rid of Trident, but we are quite happy if it goes to Devonport or Barrow-in-Furness or somewhere else”. That is not a credible position. Nor is the position, as the noble Lord, Lord Reid, pointed out earlier, of saying, “We would like to join NATO because that makes people feel comfortable, but we will not accept any of the obligations of joining”.

For all these reasons, the longer the debate has gone on—and I have argued before that that was a mistake because people would become bored by it and the uncertainty would not be good for Scotland nor for investment in Scotland—the more the support for independence has declined.

Among those of us who campaigned in the 1980s and 1990s for the restoration of the Scottish Parliament, there was an unspoken assumption that, if we got a Scottish Parliament and a Scottish Government, then the future Scottish Government and the future UK Government would collaborate in the interests of the people of Scotland. Indeed, it is fair to say that, in the first years of devolution, that did happen. Of course there were disagreements occasionally between the two Governments but basically they were both pursuing the best interests of the people of Scotland. I think the biggest single reason why support for independence has declined is that that does not appear to be the position of the SNP Government. Their position is not, “What can we do together with the UK Government to better the life of the people of Scotland?” It is rather, “What can we do to promote the SNP?”. That is a very different position.

During the Olympic Games, the Scottish Government hired the Army and Navy Club in London, at a cost of £400,000 of our taxpayers’ money, to entertain athletes and others visiting the Games: in fact, very few people went. They could have had Dover House for nothing—a substantial building, right in the centre of London, well known—but of course it belonged to the UK Government, so it did not suit the ideal of the SNP. That is a trivial example of what I am saying—that the motivation throughout has been what is in the best interests of the SNP.

I end with the question that everybody else has been raising about the decision on respecting the judgment of the Electoral Commission. Why is the SNP not willing to say now that it will accept that judgment? It is because it wants to promote the interests of the SNP. The more people realise this, the more the support for independence will continue to decline.

I support this order. I am not complacent about the outcome but I am confident that, because of this constant shifting of position by the Scottish Government, in the end people will say that they do not want to make that leap in the dark.

[Lord Wigley]

My Lords, every voice that we have heard so far has been a unionist voice. I realise that I may be in a small minority—perhaps even a minority of one—in this Chamber in wishing the people of Scotland well in their quest for independence; none the less, I wish to see a new relationship between the nations of these islands: a new partnership of free and equal self-governing nations co-operating with each other and with partners in the European Union and the wider world.

Today’s debate has involved a series of attacks on the SNP in general and on Alex Salmond in particular, as was mentioned by the noble Lord, Lord Steel of Aikwood, a moment ago. It may well cross the minds of noble Lords that it is a little strange that this House—one of the two Houses of the UK Parliament—does not have any voices from Scotland that represent nationalist aspirations, which is, after all, the driving force behind the forthcoming independence referendum.

I fully understand that the SNP has stuck resolutely to a policy of not putting forward nominations officially in the party name—as indeed did my party, Plaid Cymru, until five years ago. The experiences that my party suffered at the hands of a former Prime Minister may well have persuaded the SNP, which might be sympathetic to securing a voice in this Chamber, not to bother pursuing the matter. Noble Lords may well wish to ponder on the acceptability of a system whereby the leader of one party—albeit a Prime Minister—can determine whether another party, with MPs in the House of Commons, can be denied a voice in one of the two Chambers of the British Parliament.

[Lord McConnell of Glenscorrodale]

I hope that the noble Lord, Lord Wigley, will accept that the only responsibility for this situation lies with the Scottish National Party itself. Many of us have argued that there should be representation in this Chamber. In particular, I have argued that Mr George Reid, the Presiding Officer who succeeded the noble Lord, Lord Steel, and who worked with me when I was First Minister, would be an excellent Member of this Chamber. However, because he rightly feels some loyalty to his former party and that party will not put him forward, he is not sitting here. That is wrong, but the responsibility for it lies entirely with the nationalist party, which will not make that decision.

[Lord Wigley]

I hear what the noble Lord says. Indications that I have had from Mr George Reid may be slightly different from the interpretation that the noble Lord has given. However, I have no doubt whatever that there were those within nationalist Scotland—not necessarily even members of the SNP—who would have been willing to serve the interests of their country in this House. Be that as it may, the fact that they are not here and therefore cannot participate in this debate is unfortunate. That is why I am contributing, although I have no authority to speak on behalf of the SNP and I certainly would not presume to do so. It is not for someone from Wales to tell the Scottish people what is best for them; nor indeed is it for those from England or Northern Ireland to do so. The decision on whether Scotland should be an independent country lies with the people of Scotland and Scotland alone. I am glad that the draft order before us today arises from the Edinburgh agreement, whereby it will be the Scottish Parliament and not Westminster that determines the date, franchise, question, referendum rules and campaign spending limits. The proposed arrangements for the referendum will be initiated by the Scottish Parliament. The Electoral Commission will then have an opportunity to give its views, and those views will be duly considered by the Scottish Parliament before a final decision is taken. That is the implication of the Edinburgh agreement.

I noted one important point in today’s debate relating to Scottish servicemen based overseas. I know that there are SNP MPs and MEPs who are also actively aware of this and I very much hope that a resolution of the issue can be found.

As I understand it, the resolution in the Scottish Parliament supporting this order was passed unanimously by that Parliament. I also understand that every one of the Westminster parties supports the order. This shows how Governments can work together to achieve a sensible outcome, and I believe that it is to the credit of both the Government of Scotland and the Government of the UK that this has been achieved. It is an indication that Governments can, indeed, work together harmoniously. I have no doubt that if Scotland becomes an independent country as a result of the referendum, there will be equally harmonious co-operation between the Governments in London and Edinburgh thereafter. There has been talk today of litigation and judicial reviews but that sits a little uneasily with the type of co-operation that I have just described.

It is truly excellent that there should be such co-operation and that the referendum will be seen as “Made in Scotland”. That gives greater confidence that the outcome, whichever way it goes, will be acceptable to all the Scottish people as a democratic decision taken by the Scottish nation. I am sure that no one in this Chamber from outside Scotland would want to gainsay that or dispute the fact that this should be a decision for Scotland. To that extent, the noble Lord, Lord Reid, is quite correct that the referendum in Wales on providing further devolution is different from the question of independence and raises the question of whether referenda are really necessary for every small step of further devolution. That was not the case with the Scotland Act last year. There are, of course, implications for the rest of the United Kingdom, and no doubt these will be debated during the referendum campaign, as is right and proper. However, they are not issues that should delay the progress of the draft order before us today.

--- Later in debate ---

[Lord Martin of Springburn]

I agree with the noble Lord: we should not personalise this debate. The First Minister has a case to put the same as the rest of us, and we should not attack anyone—particularly the First Minister—on a personal basis.

[Lord Wigley]

I am very grateful to the noble Lord for that intervention. Certainly, not all speakers have done that. I noted the contribution of the noble Lord, Lord Browne, which was very constructive. It hit a tone that can help to ensure that there is no dispute on matters that are irrelevant to the central question. That central question is whether people want independence. No doubt there are arguments to be had on that and the other issues should be put to one side.

[Lord Reid of Cardowan]

I do not know whether the noble Lord is about to conclude but he has covered everything except one point. It is the main point here and concerns the nature of the question. Does he accept that under any referendum a leading question is an unfair premise on which to base a democratic decision?

--- Later in debate ---

[Lord Wigley]

Yes, of course, I accept that without reservation. The point is whether the question that has been proposed is a leading question, and there will be differences of opinion on that. I have no doubt that the Electoral Commission will give its opinion on the question and of course the Scottish Parliament will take considerable note of what the Electoral Commission says. It would be strange if it did not. However, to suggest that the Scottish Parliament or any Parliament should automatically accept the ruling of a body such as this takes the issue much further. If we were to argue that Westminster should automatically, under any circumstances, always accept the suggestions put forward by the Electoral Commission, irrespective of whether the Government or indeed the whole Parliament agreed with it, that would be unacceptable here, and I suggest that it would be unacceptable in the context of Scotland as well.

[Lord Reid of Cardowan]

With respect, the noble Lord has set up a straw man. I did not suggest that every recommendation should be accepted. I suggested that if the question is deemed by the arbitration body, which is neutral, to be a leading question, you should make it plain in advance that you will accept that particular piece of advice. The noble Lord says that no one should ever do it, but perhaps I may say that I would do it. If a referendum were being proposed by any Government, including a Labour Government, which the Electoral Commission said was being skewed by a leading question, I would accept the arbitration of the Electoral Commission. The noble Lord implied that he would as well if the question was denoted by a neutral body as a leading question. The question that we have been asking is why that cannot be done by the First Minister and the SNP in Scotland.

[Lord Wigley]

I am very grateful to the noble Lord. If indeed the Electoral Commission were to come out and say in categorical terms that this is a leading question and is totally unacceptable, and that that is clear cut in its opinion, then that opinion must be taken on board by the Scottish Parliament. I have no doubt that it would take good note of any such recommendation. I have faith in the democratic process in Scotland. However, to say that whatever the Electoral Commission says, the Scottish Parliament must accept its ruling as opposed to the decision of elected representatives, is surely one step too far. Be that as it may, I support the draft order that is before us today. I hope that the House will give it a unanimous backing so that we can move forward to the next stage of this process and, ultimately, secure a referendum, whatever the outcome, that is a credit to democracy.

[Lord Cormack]

My Lords, the noble Lord, Lord Wigley, whom I am very pleased to call a friend, said that his would probably be the only voice advocating independence. Mine appears to be the only English voice in this debate today. We have heard two from Wales and the rest from Scotland. I particularly wanted to take part because this is not a Scottish issue. This is an issue that affects the whole United Kingdom. As I have said in this House before, we all have varied backgrounds, and it is very difficult to isolate the pure Scottish from the pure English. I consider my identity as English, and yet the background of my family is Scottish for centuries. My elder son lives in Scotland with a Scottish wife, and my two grandchildren go to school in Edinburgh. My son considers himself Scottish, so Scottish indeed that he acted as the election agent for the daughter of the noble Lord, Lord Steel—because he has gone Lib Dem—in a recent election.

Justice and Security Bill [HL]

Lord Wigley Excerpts

Wednesday 21st November 2012 Lords Chamber

[Baroness Neville-Jones]

My Lords, the focus of the Bill is to enable this country to find a means of dispensing justice while protecting national security. National security has not had much of a hearing so far this afternoon. I shall explain why I do not think that public interest immunity is any longer an adequate safeguard in respect of national security. Indeed, I would go so far as to say that, at the moment, the PII regime prevents justice being dispensed consistent with security. Pace the noble Lord, Lord Beecham, I do not think that this is an impossible goal.

When national security-sensitive evidence which may be important to the claimant’s case—we all agree about that—is excluded from the courtroom by a PII certificate and the judge may not take it into account in coming to a judgment, there are two consequences: the claimant is unable to prove his case and the Government cannot defend themselves properly. To protect national security evidence from disclosure in open court the Government are being forced to agree substantial settlements, with unjustified reputational damage ensuing. The inability of our legal system to provide adequate recourse to parties in civil dispute brings no credit to it and we need to do something to mend it.

Amendment 40 would insert PII as a first stage in the legal process. This would undoubtedly greatly increase the length of proceedings and costs without necessarily guaranteeing that evidence would be heard. I cannot help feeling that this is pointless. Moreover—and this is a real problem—PII impinges adversely on the claimant’s rights and, contrary to the assertion of the noble Lord, Lord Pannick, since the case concerning Binyam Mohamed, PII has also proved to be a less than total protection for national security sensitive information. We do not now have a safeguard in PII to protect national security. It has really changed the ground. In that case, the court ordering disclosure of American material despite the Government’s PII certificate has damaged our intelligence relationship with the allies, especially, although not only, with the United States. We have this judgment from the independent reviewer of terrorism, David Anderson QC, who I know has been quoted by other noble Lords. However, I know that, on this point, he is right. It is a very serious matter if our allies can no longer trust our ability to keep secret intelligence passed to us secret.

The fact that we have not had a major terrorist incident in this country since 7/7 is not the result of the conversion of the enemy but of the successful diligence of our intelligence and security services in protecting us. They depend on vital—and I mean vital—sharing of intelligence with allies. The effect of recent cases in civil courts, and the numbers of these are growing, has now spread into the core security interests of the UK. Some noble Lords talked about the core security interests of this country in justice, and I entirely agree. However, we also have another interest to protect which is important to us. We are now damaging the core security interests of the UK. If we do not find a way, as part of a responsible national security policy, of restoring credibility to our promise to protect information given to us, we will find our intelligence relationships further eroded over time and our national security eroded with them.

It is not just the control principle that is at issue, it is UK national security. This cannot be subjected to balancing tests of the kind set out in Amendment 47 —and Amendment 46, for that matter—as if it were somehow exchangeable with other goods. Lives are not at stake in civil proceedings but they are—they can be—in national security.

Closed material proceedings are of course second-best to completely open court proceedings. There is nothing that divides anybody in this House on that point; we all agree. The problem, however, is that we are not in an ideal world. Only the court can decide to allow closed material proceedings under the Bill, and presumably the judge would not permit that if they did not think that there was a substantial national security interest to be protected and they had not been convinced by the submission of the Secretary of State. In that case, this issue would not arise. However, if it does arise and the court agrees that there should be CMP, it will permit a full testing of the claimant’s case. The Government will be able to defend themselves in a manner that protects sensitive national security information.

The Bill also provides for gisting to the claimant. This is much better than the absence of justice and the potential prejudice to national security at the same time. Amendments 48, 49 and 50 would destroy the balance that the Bill would bring about.

Much has been made already of the Government’s proposals being “a radical departure” from our traditional norms. However, the closed material procedure is drawn from the procedure created by the previous Labour Government for the special immigration appeals courts which, I might say, Liberty was very influential in setting up, and which have been tested and accepted as compatible with the European Convention on Human Rights. The reality of justice there is demonstrated by the fact that the Government lose cases. Amendment 44 would bring some SIAC procedures into question, as well as rendering this Bill null and void.

I hope that this House will accept that this Bill is a balanced response to a difficult issue. I take seriously, along with other Lords, the need for safeguards, but I believe that many of the proposals on the Marshalled List go too far. I hope that this House will reject amendments which, far from improving the Bill, either remove or render ineffectual the purpose of closed material proceedings. To use the words of the noble Lord, Lord Hodgson, I believe that this Bill passes the smell test.

[Lord Wigley]

I want to speak very briefly to Amendment 48, which has been grouped with these amendments. I do not accept that this tips the balance, as the noble Baroness suggested just a moment ago.

One of the most unsettling provisions of this Bill is contained in Clause 7, which provides that if a Closed Material Procedure is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the legislation, as drafted, requires only that the court should consider requiring such a summary to be given. In any case, Clause 7(1)(e) provides that the court must ensure that, where a summary is given, it does not contain material, the disclosure of which would be against the interests of national security.

If this clause goes through unamended, there will be no requirement to give excluded parties sufficient information about the case against them so that they can give instructions to their special advocate. Surely this is wrong, otherwise people could lose cases without being told any of the reasons why, which is an unacceptable situation in circumstances where the national security is not at stake.

[Lord Marks of Henley-on-Thames]

My Lords, I start by paying tribute to the Joint Committee on Human Rights for the very important work it put into producing the thorough and excellent report that gave rise to the amendments in the name of the noble Lord, Lord Pannick, and others.

The first question to be addressed in considering the introduction of CMPs to ordinary civil proceedings is whether the Government have in any way made out a case for their necessity. That is a matter upon which, as the noble Lord, Lord Pannick, pointed out, the Joint Committee found itself unpersuaded. However, if there are 20 such cases now, as figures recently released by my noble and learned friend the Advocate General for Scotland state, as well as the obvious prospect of an increasing number in the future, as the fact that the Government are a soft target for such cases becomes well known, that is a significant number, if a small one. In such cases, because the evidence has to be withheld altogether for the protection of national security—and it is worth reminding ourselves that that is what PII does—there can at present be no determination at all, and therefore no justice. That lack of justice has to be weighed against the damage that would be done to our civil justice system by the extension of CMPs to certain civil claims. CMPs are, as has been said, inherently unfair. They represent a serious departure from open justice, because the evidence cannot be tested by cross-examination in the ordinary way: by advocates acting on the instructions of their clients, who themselves have a full opportunity to know and meet the case against them. CMPs, therefore, represent a justice that is flawed. For my part, I think that to choose to have no determination at all in these cases, and to prefer no justice to flawed justice, would be the better choice, unless the safeguards for CMPs proposed by the Joint Committee are in place.

Constitutional Settlement

Lord Wigley Excerpts

Thursday 11th October 2012 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, it is a great pleasure to follow the noble Lord, Lord Cormack, about whom one of our colleagues once said that if this place had not existed, it would have had to have been created for him. He fits into this place so well. I congratulate—I must refer to him as my noble friend—my noble friend Lord Maclennan. I have known him for so long and most of the time we were in the same party together. I appreciate his wisdom, which others have mentioned, his knowledge and his experience. I am particularly pleased that he has included those three words “alternative constitutional settlement” in the Motion. That is what I want to concentrate on.

Let us first remember why we brought about devolution in the first place. It was not as a reaction to the SNP, it was not as a bulwark against independence and it was not, as some people hoped, as the first step towards independence—the slippery slope argument. We introduced it because in Scotland for 200 years we had had a separate system of education and local government, a separate culture and, above all, a separate legal system, but we also had a democratic deficit because we did not have appropriate democratic control of all that devolution. It was dealt with administratively and inadequately here in Westminster as a codicil to UK or English legislation or as a hurried Scottish Bill late at night, if we had the time. That is why we brought it in. It was because we wanted to do something sensible about that democratic deficit. As with all the changes that have taken place, there have been unintended consequences, and they are what we need to deal with.

Perhaps I may add to what was said earlier by my noble friends Lord Maclennan and Lord McConnell and explain how we dealt with the devolution creating the Scottish Parliament. It was the Scottish Constitutional Convention. Let us remember that the SNP boycotted it. Some people forget that. We might almost forgive them, but not quite. We had wide representation from civic society in particular, and it was based on a clear aim in the Claim of Right. I do not know whether all noble Lords have had the opportunity of reading an excellent book by Owen Dudley Edwards—I contributed a chapter to it. All the Scots Labour MPs, except Tam Dalyell, and Scots Liberal Democrat MPs signed that Claim of Right. We had a purpose. There was a real understanding of what we were aiming for. Then the Welsh Assembly followed. There was not that enthusiasm originally in Wales, but when people saw what Scotland had and what we were doing with it, as noble Lords from Wales will know, they wanted something similar, and the desire for devolution has been growing in Wales. Thankfully, Northern Ireland revived its assembly under different circumstances, and Stormont is now working as part of the whole constitutional structure.

[Lord Wigley]

The noble Lord will have noted, I am sure, that support for the constitutional settlement in Wales shot up when the National Assembly for Wales got legislative powers after the referendum last year. Therefore, enthusiasm has grown, as have the powers.

[Lord Foulkes of Cumnock]

Indeed, it is understandable. It is welcome that we have a representative of the Welsh nationalists here. I underline what the noble Lord, Lord Kerr of Kinlochard, said: it would be helpful if we had a representative of the SNP. I know Pete Wishart and some other MPs are quite keen on that, but there is one person who vetoes it, and he has a veto.

To return to my argument, I have written a couple of blogs recently arguing that both from the point of view of Scotland and the point of view of this place, we need a UK constitutional convention because of the piecemeal looks at constitutional reform that we have had in the past and all the anomalies and unintended consequences that have resulted. We need a coherent, consistent look, and we need to work towards a stable solution. One of the anomalies has already been mentioned: the West Lothian question. That is being dealt with separately, and I think wrongly, by the commission under the chairmanship of Sir William McKay because it is looking at it in the narrow context of how we can stop Scottish, Welsh and Northern Irish MPs voting on purely English legislation. Incidentally, it has not considered whether it would stop Scottish, Welsh and Northern Irish Peers voting on that legislation. That did not seem to have occurred to it until some Peers drew it to its attention. So that is being dealt with.

The other thing is that we have ended up with asymmetrical devolution. Scotland, or perhaps Northern Ireland, has the greatest amount of devolution—we could argue that—and then Wales. We then come to the West Lothian question and the problem about England. That is why I and others argue—and it is an increasing argument—that there should be a constitutional convention. My noble friend Lord McConnell said, and I think he is right, that there should be a purpose and an end in sight and that we should know where we are going and not just hope that something will emerge. That is why I am in favour of a federal United Kingdom. I have been arguing that in my own party and with the Liberal Democrats. The Liberals used to want one. I remember going to meeting after meeting where the Liberals would argue so cogently in favour of a federal United Kingdom. They should return to that, we should look at it and I hope others will look at it as the stable solution.

The other stable solution would be a centralised United Kingdom or the break up of the United Kingdom. I do not want either. I do not want a return to a centralised UK, and I do not want the break up of the United Kingdom, but a federal UK would be the way forward.

As other noble Lords have said, the UK constitutional convention could also look at this House, its purpose and its constitution. I very much agree with my noble friend Lord McConnell and the noble Lord, Lord Kerr, about the need for Scotland, Wales, Northern Ireland and, of course, England and the regions of England to be properly and sensibly represented in this place, giving this place some enhanced credibility. That needs to be looked at. We also need to look at the relationship of the United Kingdom Parliament, the Commons and the senate, or whatever we call it, to the devolved Parliaments.

Some people argue that a federal system would not work because England is too large. If you think about it, that does not make sense because if the English Parliament—let us say that there is an English Parliament—deals with devolved matters, it is autonomous in those devolved matters, as is the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, so it gets on with its own educational system or whatever. If you agree with a federal structure, if that is the way forward, the size of the different parts does not matter. Where it may matter is when it comes to the federal Parliament, and that is where you have to look at how some balance can be struck.