Scotland Bill

Alistair Carmichael Excerpts

Monday 6th July 2015 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move amendment 23, in clause 31, page 30, line 34, leave out “may” and insert “must”.

[The Temporary Chair (Mr David Crausby)]

With this it will be convenient to discuss the following:

Amendment 52, page 30, line 36, leave out “Ministers” and insert “Parliament”.

Amendment 57, page 30, line 37, at end insert—

‘(1A) The Treasury and Scottish Ministers must agree a scheme transferring to the control of each of Shetland Islands Council, Orkney Islands Council and Comhairle nan Eilean Siar (“the island authorities”) on the transfer date all the existing Scottish functions and rights of the Commissioners relating to those parts of the Scottish zone surrounding each of the island authorities.

(1B) The exact extent of the parts of the Scottish zone to be transferred under subsection (lA) will be agreed by the Treasury and Scottish Ministers in consultation with the island authorities and in accordance with the principles contained within the United Nations Convention on the Law of the Sea articles 16, 74 and 84.”

This Amendment would require the relevant functions of the Crown Estate in the Shetland Islands, Orkney and Na h-Eileanan Siar (the “Western Isles”) to be transferred to the councils for those areas. Articles 16, 74 and 84 of the UN Convention on the Law of the Sea set out principles for defining geographical extent in relation to the territorial sea, exclusive economic zones and the Continental shelf respectively.

Amendment 125, page 31, line 22, at end insert—

‘( ) The scheme must not include any alteration to the Sovereign Grant Act 2011.”

The Sovereign Grant Act 2011 made provision for the honour and dignity of the Crown and the Royal Family and about allowances and pensions under the Civil List Acts of 1837 and 1952.

Amendment 126, page 31, line 22, at end insert—

‘( ) The scheme must not include any reduction in the pro rata payments due to Her Majesty under the Sovereign Grant Act 2011.”

This amendment is to ensure that Scotland continues to contribute its share towards the costs of the Monarchy.

Amendment 127, page 31, line 22, at end insert—

‘( ) The scheme must not include any permanent alienation of the rights of the Crown.”

This amendment protects the position of future Sovereigns in respect of the rights of the Crown.

Amendment 24, page 32, line 25, leave out “C” and insert “A”.

Amendment 25, page 32, line 31, leave out “then, instead of the type C procedure”.

Amendment 26, page 32, line 31, leave out “I” and insert “A”.

Clause 31 stand part.

Amendment 134, in clause 32, page 33, line 44, leave out subsection (2).

This amendment delivers a more explicit reference to the devolution of competence over gender quotas in respect of public bodies in Scotland but ensures that it is “not limited to” gender quotas, as agreed in the Smith Commission report.

Amendment 167, page 33, line 46, after “2006” insert “(other than enforcement under Part 1 of that Act)”.

Amendment 161, page 34, leave out lines 3 and 4.

Amendment 162, page 34, line 4, at end insert—

“Equal opportunities in relation to an appointment as a member of a Scottish public authority.”

Amendment 123, page 34, line 13, at end insert—

“including a requirement for gender balance among the members of the Scottish Parliament and members of boards of Scottish public authorities;”

The Amendment would ensure continued progression towards achieving gender balance among members of the Scottish Parliament and on boards of Scottish public authorities.

Amendment 168, page 34, line 18, leave out “the Equality Act 2010 and Part 1 of that Act” and insert “and the Equality Act 2010”

Amendment 135, page 34, line 25, leave out subsection (6) and insert—

“In section 2 (power to amend section 1)—

(a) in subsection (7) omit “the Scottish Ministers or”,

(b) in subsection (10), before “Ministers” insert “Welsh””

Amendment 136, page 34, leave out lines 39 to 42 and insert—

‘(4) Part 1 comes into force on such day as the Scottish Ministers may by order appoint so far as it—

(a) confers a power on the Scottish Ministers;

(b) relates to a public authority in respect of which such a power is exercisable.”

This amendment would clarify Scottish Ministers ability to commence the relevant sections of Part 1 of the Equality Act 2010, which was subject to a Legislative Consent Motion in 2010.

Amendment 137, page 35, line 2, leave out subsection (10).

Clause 32 stand part.

Amendment 27, in clause 33, page 35, leave out lines 18 and 19.

Amendment 53, page 35, line 18, leave out sub-sub-paragraph (b).

Amendment 28, page 35, leave out lines 24 and 25.

Amendment 29, page 35, leave out lines 26 to 30.

Amendment 138, page 35, leave out lines 26 to 30 and insert—

“This Schedule does not reserve the transfer of all the functions of a tribunal referred to in sub-paragraph (2) to a Scottish tribunal, so far as the functions are exercisable in relation to Scottish cases or a specified category of Scottish cases, in accordance with provision made by Her Majesty by Order in Council.”

This amendment would ensure that all functions exercisable in relation to Scottish cases or a specified category of Scottish cases should transfer to the Scottish Parliament.

Amendment 139, page 35, leave out from beginning of line 31 to end of line 7 on page 36.

Amendment 140, page 36, line 22, at end insert—

‘( ) For the avoidance of doubt, this Schedule does not reserve—

(a) a Scottish tribunal’s practice and procedure when exercising functions that have been transferred to it by virtue of this paragraph, or

(b) the fees and expenses chargeable for, or in connection with, proceedings before a Scottish tribunal when it is exercising those functions.”

This amendment makes clear that competence over a tribunal’s practice, rules of procedure and fees in relation to transferred cases becomes devolved, as per the Smith Commission recommendation.

Amendment 54, page 37, line 17, at end insert—

‘(7A) Scottish Ministers, in conjunction with the Advisory, Conciliation and Arbitration Service (ACAS) shall establish and oversee a process, involving Scottish businesses and trades unions, to end the current employment tribunal fee system in Scotland.”

Clause 33 stand part.

Amendment 141, in clause 34, page 37, line 28, leave out from “relating” to “to” in line 29.

This amendment would remove a restriction on the full devolution of speed limits in relation to emergency vehicles.

Clauses 34 and 35 stand part.

Amendment 142, in clause 36, page 41, leave out lines 15 to 18 and insert—

“(a) in relation to vehicles used on roads in Scotland means the Scottish Ministers.”

This amendment would amend section 130(3) of the Road Traffic Regulation Act 1984 so that Scottish Ministers are added into the provision as the relevant ‘national authority’.

Amendment 143, page 41, line 19, at end insert—

‘(18) In section 130 (application of Act to Crown)—

(a) in subsection (3) for “Secretary of State” substitute “relevant authority”, and

(b) after that subsection insert—

(3A) In subsection (3) “relevant authority”—

(a) in relation to vehicles used on roads in Scotland means the Scottish Ministers,

(b) otherwise, means the Secretary of State.””

This amendment would amend section 130(3) of the Road Traffic Regulation Act 1984 so that Scottish Ministers are added into the provision as the relevant ‘national authority’.

Clauses 36 and 37 stand part.

Schedule 2 stand part.

Clauses 38 to 40 stand part.

Amendment 144, in clause 41, page 42, line 32, at end insert—

‘( ) After subsection (3) insert—

(3A) Without limiting subsection (3), the Scottish Ministers may grant a licence upon the condition that the licence holder makes an annual rental payment to the Scottish Ministers.

(3B) In subsection (3A), “rental payment” means payment of an amount to be calculated by reference to the area of land to which the licence relates.””

In Clause 41, the Secretary of State has retained the power to set the consideration payable for licences. This could restrict Scottish Ministers’ ability to set other charges that form integral aspects of the licensing regime: for example, the Department of Energy and Climate Change (DECC) charge a ‘land rental’. This would enable Scottish Ministers to introduce a similar scheme in Scotland.

Clauses 41 and 42 stand part.

Amendment 30, in clause 43, page 45, line 7, at end insert—

“(aa) in the list of subject-matter, leave out “(c) the Estate Agents Act 1979,””.

Amendment 145, page 45, line 9, leave out from “insert—” to the end of subsection (8) and insert—

“The provision of consumer advocacy and advice.

Enforcement and redress for breach of consumer rights.”

(3) In Section C8 (product standards, safety and liability) after the heading “Exceptions” insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(4) In Section C9 (weights and measures) after the reservations insert—

“Exceptions

The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(5) In Section C10 (telecommunications)—

(a) for the heading “Exception” substitute “Exceptions”;

(b) after that heading insert—

“The provision of consumer advocacy and advice.

Enforcement and redress for breach of consumer rights.”

(6) In Section C11 (posts)—

(a) for the heading “Exception” substitute “Exceptions”;

(b) after that heading insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(7) In Section D1 (electricity)—

(a) for the heading “Exception” substitute “Exceptions”;

(b) after the exception relating to the Environmental Protection Act 1990 insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(8) In Section D2 (oil and gas), at the end of the exceptions insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

This amendment would provide an exception to reservation C10 in Schedule 5 to the Scotland Act which covers telecommunications and devolves responsibility for consumer enforcement and redress to the Scottish Parliament. It also removes unnecessary references to a public body and to the holder of a public office.

Clauses 43 and 44 stand part.

Amendment 146, in clause 45, page 47, line 3, leave out from “insert-“ to the end of subsection (1) and insert—

“Exceptions

The number of relevant gaming machines authorised (if any) in respect of premises licences under the Gambling Act 2005.

“Interpretation

A “relevant gaming machine” is a gaming machine (within the meaning of section 235 of the Gambling Act 2005) for which the maximum charge for use is more than £10.””.

This amendment replaces the reference to betting premises with a more general reference to gambling premises, giving full effect to Smith Commission recommendation 74.

Amendment 31, page 47, line 7, leave out “for which the maximum charge for use is more than £10”.

Amendment 163, page 47, line 7, leave out “£10” and insert “£2”.

Amendment 159,  page 47, line 8, at end insert—

“and the designation of licensing standards officers in Scotland as authorised persons for the exercise of inspection and enforcement functions in respect of such licences.”

This Amendment would allow the Scottish Parliament to include Licensing Standards Officers (LSOs) in Scotland as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005 in respect of the number of gaming machines authorised under a betting premises licence.

Amendment 147, page 47, line 13, leave out from “means” to the end of subsection (4) and insert—

“(a) the Scottish Ministers in respect of premises in Scotland in so far as the order varies the number of gaming machines authorised (if any) for which the maximum charge for use is more than £10, or

(b) otherwise, the Secretary of State.”

This amendment replaces the reference to betting premises with a more general reference to gambling premises, giving full effect to Smith Commission recommendation 74.

Amendment 32, page 47, line 17, leave out

“for which the maximum charge for use is more than £10”.

Amendment 164, page 47, line 18, leave out “£10” and insert “£2”.

Amendment 165, page 47, line 18, after “£10” insert —

“( ) the content and the speed of play,”.

Amendment 166, page 47, line 18, after “£10” insert—

“( ) the number of staff required to supervise such machines,”.

Amendment 160, page 47, line 20, at end insert—

‘(4A) In section 304 of that Act (authorised persons), after subsection 4(c) insert—

“(d) Licensing Standards Officers (LSOs) of Scottish local authorities, appointed in terms of section 13 of the Licensing (Scotland) Act 2005.””

This Amendment would include Licensing Standards Officers (LSOs) in Scotland as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005 in respect of the number of gaming machines authorised under a betting premises licence.

Amendment 33, page 47, line 35, leave out subsection (6).

Clause 45 stand part.

New clause 22—Obstructive parking—

‘(1) In section E1 of Schedule 5 to the Scotland Act 1998 (Road transport) after “Exceptions”, insert—

“The subject matter of sections 19 to 22 (Stopping on verges, etc, or in dangerous

positions, etc.) of the Road Traffic Act 1988;

The subject-matter of section 41(5) (Regulation of construction, weight,

equipment and use of vehicles) of the Road Traffic Act 1988 in so far as it relates

to the making of regulations making it an offence to cause or permit a vehicle to

stand on the road so as to cause any unnecessary obstruction of the road.”

(2) After section 51 of the Road Traffic Offenders Act 1988 (Fixed penalty offences) insert new section 51A—

“51A Offences under Road Traffic Act 1988

(1) Any offence in respect of a vehicle under regulations made by Scottish Ministers under section 41(5) (Regulation of construction, weight, equipment and use of vehicles) of the Road Traffic Act 1988 is a fixed penalty offence for the purposes of this Part of this Act if it is specified as such in those regulations, but subject to subsection (2) below.

(2) An offence under an enactment so specified is not a fixed penalty offence for those purposes if it is committed by causing or permitting a vehicle to be used by another person in contravention of any provision made or restriction or prohibition imposed by or under any enactment.”

(3) Before proposing a change in regulation of a subject matter falling under this section, Scottish Ministers shall—

(a) consult the Secretary of State, and

(b) publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom.””

This amendment is intended to ensure that offences in relation to parking on pavements can be enforced by the Scottish Parliament. Other offences would be unaffected. This amendment is based on Mark Lazarowicz’s Private Members’ Bill from the last Parliament, which was supported in principle by the then Secretary of State for Scotland.

New clause 26—Health and safety—

“In Part 2 of Schedule 5 to the Scotland Act 1998 (Employment), leave out Section H2 (Health and Safety).”

This new Clause would remove from the list of reserved matters in the 1998 Act (and so transfer to the Scottish Parliament) the subject-matter of Part I of the Health and Safety at Work etc. Act 1974 (Health, safety and welfare in connection with work, and control of dangerous substances and certain emissions into the atmosphere), the Health and Safety Commission, the Health and Safety Executive and the Employment Medical Advisory Service.

New clause 27—Business associations—

“In section C1 in Part 2 of Schedule 5 to the Scotland Act 1998 (Business associations) at the end of the exceptions insert—

“(c) the law on partnerships and unincorporated associations,

(d) the creation of new forms of cooperative enterprise,

(e) the creation of new forms of mutual enterprise,

(f) the creation of economic interest groups where the European Economic Interest Group under regulation EEC 2137/85 is not available because the members do not come from more than one member state.””

New clause 41—Scottish Government review of measures taken to promote gender equality in Scottish Parliament—

“Scottish Ministers shall, within six months of the day on which this Act is passed, publish and lay before the Scottish Parliament a comprehensive review of the measures which the Scottish Government is taking to further and to promote gender equality in the membership of the Scottish Parliament and on the boards of Scottish public authorities.”

This New Clause requires Scottish Ministers to publish a review of the measures they are taking to promote gender equality among members of the Scottish Parliament and on boards of Scottish public authorities.

New clause 47—Employment and industrial relations—

“In Part 2 of Schedule 5 to the Scotland Act 1998, omit Section H1 (employment and industrial relations).”

This new clause would devolve employment and industrial relations to the Scottish Parliament.

New clause 48—Health and safety—

“(1) In Part 2 of Schedule 5 to the Scotland Act 1998 (“the 1998 Act”), omit Section H2 (health and safety).

(2) The Health and Safety Executive is a cross-border public authority for the purposes of the 1998 Act.

(3) The 1998 Act applies in relation to the Health and Safety Executive in the same way as it applies in relation to cross-border public authorities specified in an Order in Council under section 88(5) of the 1998 Act.”

This new clause would devolve health and safety to the Scottish Parliament and designates the Health and Safety Executive as a cross-border public authority.

New clause 49—Equal opportunities—

“In Part 2 of Schedule 5 to the Scotland Act 1998, omit Section L2 (equal opportunities).”

This new clause would devolve equal opportunities to the Scottish Parliament.

New clause 56—Abortion—

“In Part 2 of Schedule 5 to the 1998 Act, leave out section J1 (abortion).”

This amendment removes the specific reservation of abortion, thus transferring competence over abortion to the Scottish Parliament.

New clause 57—Crown property—

‘(1) Part 1 of Schedule 5 to the Scotland Act 1998 (general reservations) is amended as follows

(2) Omit paragraph 2(3)

(3) In paragraph 3(3), omit paragraph (a)

(4) After paragraph 3, insert—

“3A Without prejudice to paragraphs 2 and 3, paragraph 1 does not reserve—

(a) removing or altering functions of, or conferring functions on, the Crown Estate Commissioners in relation to the holding or management of property within paragraph 3(1),

(b) where a function of the Crown Estate Commissioners of holding property is so removed, the transfer of any property held in exercise of the function.”

(5) Functions relating to Crown property are, so far as they relate to Crown property in or relating to the Scottish offshore region, to be treated for the purposes of the Scotland Act 1998 as exercisable in or as regards Scotland.

(6) In subsection (5)—

“Crown property” means property within paragraph 3(1) of Part 1 of Schedule 5 to the Scotland Act 1998,

“Scottish offshore region” has the same meaning as in the Marine and Coastal Access Act 2009 (see section 322 of that Act)

(7) In section 1(2) of the Civil List Act 1952 (payment of hereditary revenues into the Scottish Consolidated Fund), omit “from bona vacantia, ultimus haeres and treasure trove”.

This alternative to clause 31 would reduce the complexity of the current arrangements relating to the Crown Estate by removing the reservation relating to the management of the Crown Estate and provides the Scottish Parliament with full legislative competence in relation to the management of the Crown Estate in or as regards Scotland. It would also transfer any functions of the Crown Estate Commissioners in relation to rights to the continental shelf beyond the 200 nautical mile limit adjacent to Scotland.

New clause 59—Party political broadcasts—

“In Section K1 of Part 2 of Schedule 5 to the Scotland Act 1998 (broadcasting), after the reservation insert—

“Exceptions

The regulation of

(a) party political broadcasts in connection with elections that are within the legislative competence of the Parliament, and

(b) referendum campaign broadcasts in connection with referendums held under Acts of the Scottish Parliament.”

In recommending that the Scottish Parliament should have all powers in relation to Scottish Parliament and local government elections, the Smith Commission stated specifically that this would include party political broadcasts. This new clause delivers on that proposal.

New clause 60—Broadcasting—

“Leave out section K1 in Part 2 of Schedule 5 (Broadcasting) to the 1998 Act.”

This new clause would devolve broadcasting to the Scottish Parliament.

New clause 61—Levies in respect of agriculture, taking wild game, aquaculture and fisheries etc.—

“‘(1) In Part 2 of Schedule 5 to the Scotland Act 1998, Section A1 is amended as follows.

(2) In the Exceptions, after the exception for devolved taxes insert—

“Levies in respect of agriculture, taking wild game, aquaculture and fisheries (including sea fisheries) or a related activity: their collection and management.”

(3) After the Exceptions insert—

“Interpretation

“agriculture” includes horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping, and the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds.

“aquaculture” includes the breeding, rearing or cultivation of fish (of any kind), seafood or aquatic organisms.

“related activity” means the production, processing, manufacture, marketing or distribution of—

(a) anything (including any creature alive or dead) produced or taken in the course of agriculture, taking wild game or aquaculture, or caught (by any means) in a fishery,

(b) any product which is derived to any substantial extent from anything so produced or caught.””

This new clause would give the Scottish Parliament general legislative competence in respect of agricultural, aquacultural and fisheries levies.

New clause 63—Assessment of the Scottish Parliament having the power to alter the National Minimum Wage in Scotland—

‘(1) The Secretary of State shall instruct the Low Pay Commission to undertake and publish, within 12 months of the date on which this Act is passed, an analysis of the economic impact of the Scottish Parliament having the power to alter the United Kingdom National Minimum Wage.

(2) The Secretary of State must require the analysis to assess the effects of the Scottish Parliament having the power to alter the United Kingdom National Minimum Wage on the Scottish and United Kingdom economies, with a specific focus on the following areas—

(a) the risks of establishing a two tier minimum wage across the United Kingdom, including an analysis of any possible negative impact on employment conditions for United Kingdom and Scottish workers;

(b) the importance of maintaining the principle of minimum standards across the UK, and the extent to which low pay issues differ in Scotland from the rest of the UK;

(c) the Scottish and United Kingdom labour market, in particular the effect of a different level of minimum wage in Scotland on the jobs and working hours of Scottish and United Kingdom workers;

(d) entitlement in Scotland to both devolved and reserved welfare payments;

(e) the possible effects on business investment in Scotland and the rest of the United Kingdom;

(f) any other considerations that would arise from having different minimum wages in communities on either side of the border;

(g) the institutional infrastructure required to establish, monitor and enforce it;

(h) the implications for EU Directives on Posted and Agency Workers;

(i) the impact on wage levels in Scotland and the United Kingdom; and

(j) a report on how the National Minimum Wage can rise faster in Scotland and across the United Kingdom to 58% of median earnings or more than £8 per hour by 2019.””

The new clause requires the Low Pay Commission to assess the impact on the Scottish and UK economies of the Scottish Parliament having the power to establish a different rate of the National Minimum Wage (NMW) in Scotland. The analysis includes what institutional infrastructure would be required, the relationship with EU Directives, the long-term impact on wages, and ways to faster increase the NMW, whilst maintaining the principle of the UK NMW framework.

New clause 64—Enforcement of Part 1 of Equality Act 2006—

“In the Exceptions under Section L.2 of Part 2 of Schedule 5 to the 1998 Act, insert—

“The enforcement of Part 1 of the Equality Act 2006.”

New clause 66—Health and Medicines—

“In Part 2 of Schedule 5 to the 1998 Act, leave out “Head J (Health and Medicine)””

The new clause would remove health and medicine, including abortion, xenotransplantation, embryology, surrogacy, genetics, medical supplies, poisons and welfare foods from the list of matters reserved to the UK Parliament, allowing the Scottish Parliament to make separate provision in these matters for Scotland.

[Mr Carmichael]

I welcome you back to the Chair, Mr Crausby.

We have an embarras de richesses in the range of issues before the Committee for the next three hours, so I will try to keep my remarks as brief as possible. I am pleased that at the top of the list of amendments come those from different parts of the House about the future devolution of the Crown Estate commission.

Perhaps I am on something of a roll today: the future of the Crown Estate commission has been important to me throughout my political life. The Crown Estate was the subject of my maiden speech in this House some 14 years ago, and, revisiting the issue ahead of today’s debate, it was interesting to note that there has been some progress, particularly under the auspices of its current chief executive, Alison Nimmo. We have seen a greater willingness of the Crown Estate to engage with the communities that it most directly affects, and in the previous Parliament we heard about the creation of the coastal communities fund that brought back some 50% of Crown Estate dividends relating to the use of the seabed to coastal communities around the country. That has made a significant difference to a number of projects in a wide range of communities.

It remains the case that the operation of the Crown Estate remains unsatisfactory for island and coastal communities—especially those throughout Scotland that seek to establish a future for themselves in the development of marine technologies and renewable energy generation, which continue to rely on the good will and co-operation of the Crown Estate in relation to the construction and maintenance of piers and harbours, and for which the aquaculture industry remains an important source of livelihoods for many people. We need to see that operation devolved, in particular as it relates to the function of the seabed and territorial waters.

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

The right hon. Gentleman says that the operation of the Crown Estate is unsatisfactory and needs to be devolved. It was unsatisfactory and needed devolving four years ago when he was in government, and he opposed its devolution. Why did he oppose that devolution and why has he now had a damascene conversion and changed his mind—on devolution not just to Scotland but to councils? Many people do not want the issue left at council level, decided in council boardrooms; they want it devolved to the islands.

[Mr Carmichael]

Four years ago, I was very much in favour of devolution to the communities: it was something on which we could not build a consensus—[Interruption.] The hon. Gentleman has asked a question; if he calmed down a little, he could listen to the answer.

Four years ago, we could not build a consensus on this issue and that was a matter for regret. I regularly pursued the issue, as I am sure the Secretary of State will recall. I am delighted now to be able to place publicly on the record my enthusiasm for devolution to council areas—possibly even sub-council areas. That is why amendment 57 seeks to facilitate the devolution to the Western Isles, Orkney and Shetland of the powers of the Crown Estate commissioners, so that the communities have the day-to-day responsibility and reap the financial benefits.

I have always been of the view that power is best exercised closest to the community affected by it, and the seabed as a resource could be much better managed if it were under the control of local communities—island communities, in particular.

[Alex Salmond (Gordon) (SNP)]

I am fascinated by this lack of consensus in the last Government. Was the current Secretary of State for Scotland someone with whom the right hon. Gentleman was unable to form a consensus on the issue of devolution of the Crown Estate?

[Mr Carmichael]

I shall allow the Secretary of State to speak for himself when he has the opportunity to do so later; I am sure we will all be on tenterhooks to hear what he has to say.

It is manifestly the case that the seabed as a resource could be better managed—and it would be if it were managed by the communities most directly affected. That would generate more income. There are tremendous opportunities for generating income from the seabed, many of which are thwarted because the Crown Estate commissioners over the years have taken an especially narrow construction of their duties under the Crown Estate legislation.

I fully accept that amendment 57 seeks to promote the interests of the Western Isles, Orkney and Shetland. I remind the House that the issue was the subject of two reports to the Scottish Affairs Committee in the last Parliament, and has also been pursued vigorously by the three island authorities in their engagement in the “Our Islands Our Future” process, which I was keen to encourage when I was Secretary of State.

I suggest that if we were able to achieve devolution to the three island authorities first, the way would be smoothed for those in the Highland region area, and Argyll and Bute in particular. I know that the issues relating to the islands and coastal communities in those council areas are very similar to those for the Western Isles, Orkney and Shetland.

[Mr MacNeil]

Would it not be a better approach to devolve to the islands? I see the Liberals are now ignoring and forgetting about Mull, Tiree and Islay, but the intention of the Scottish Government—to devolve to the island communities themselves—is a far better approach and we have to make sure we can have it in Scotland. We could have had it four years ago, when I moved an amendment on this issue. We did not get it four years ago, however, because the right hon. Gentleman and his party opposed it.

[Mr Carmichael]

I seek to build consensus today. It is unfortunate that the hon. Gentleman is not minded to do so. I say to him simply this: if he speaks to his colleagues in the Comhairle, he will find they have enthusiasm for this matter. They pressed me and others in government very hard in the previous Parliament to proceed on this. It would be to his benefit and to the benefit of his constituents if he were minded to give his support.

Amendments 27 to 29 have their genesis, as do many others, in briefings provided by the Law Society of Scotland. They relate to the administration of tribunals in Scotland. This was some of the most difficult and challenging work for both the Smith commission and the Government. The analysis of the Devolution (Further Powers) Committee in the Scottish Parliament and the Law Society of Scotland is that what remains in the Bill is imperfect, because it does not give full effect to paragraphs 63 and 64 of the Smith commission report. Paragraph 63 states:

“All powers over the management and operation of all reserved tribunals (which includes administrative, judicial and legislative powers) will be devolved to the Scottish Parliament other than the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission.”

Paragraph 64 states:

“Despite paragraph 63, the laws providing for the underlying reserved substantive rights and duties will continue to remain reserved (although they may be applied by the newly devolved tribunals).”

In implementing paragraph 63, there must be scope for the continued reservation of the substantive law and that may take forms that will require some limitation on the functions transfer. However, it is the assessment of the Law Society of Scotland that the limitations on transfer should only be such as are objectively necessary and that they must not be unduly restrictive of the principle in paragraph 63.

It seems to be a notion of some novelty in Whitehall that tribunals can be running independently and applying legislation that goes across the whole of the United Kingdom. I could never share that analysis of novelty, having practised in sheriff courts and watched over many years the practice in the High Court and the Court of Session do exactly that. I never quite understood —perhaps the Secretary of State will be able to explain it tonight—why this is so difficult.

Amendment 30 is another Law Society of Scotland amendment. It deals with the regulation of estate agents in Scotland under the Estate Agents Act 1979. I remind the House that much estate agency in Scotland is done by firms of solicitors acting as estate agents. They do it very effectively within the context of Scottish land law practice and conveyancing which, being Roman in origin, is fundamentally different from the law applicable in other parts of the United Kingdom.

I would suggest in support of the Law Society’s amendment that devolving the regulation of estate agents makes perfect sense. It is another aspect of our business and commercial life, as well as our personal and private life, that is managed completely differently in the Scottish context and in Scottish law. It is an anomaly that we should take this opportunity to address.

Amendments 31 and 32 deal with gaming machines in licensed betting premises. They seek to remove the limitation

“for which the maximum charge for use is more than £10”.

Paragraph 74 of the Smith commission agreement stated:

“The Scottish Parliament will have the power to prevent the proliferation of Fixed-Odds Betting Terminals.”

It is the analysis of both the Law Society and, again, the Devolution (Further Powers) Committee that the Bill does not achieve that end. Removing the maximum charge would most effectively achieve the objectives set out in the Smith commission.

Likewise, the effect of new clause 26 would be to devolve the functions of the Health and Safety Executive. Health and safety enforcement in Scotland is already practically devolved. Control over occupational health issues—many of which are practically unique in profile to Scotland, such as those in offshore oil and gas and in agriculture—should now be formally devolved to Scotland. That would be a recognition of the practice that has developed since devolution and the creation of the Scottish Parliament in 1999. It is merely a recognition in law of something that is already widely practised.

Finally, new clause 27 is fairly technical and, again, was drafted by the Law Society of Scotland. It would give effect to the particular models of business incorporation that we have in Scots law and is a recognition that that, too, should be under the control of the Scottish Parliament.

[Sir Edward Leigh (Gainsborough) (Con)]

I rise to speak to my new clause 66, on health and medicines, which reads:

“In Part 2 of Schedule 5 to the 1998 Act, leave out “Head J (Health and Medicine)”.

In the helpful Member’s explanatory statement, which the Clerks helped me with, I say:

“The Amendment would remove health and medicine, including abortion, xenotransplantation, embryology, surrogacy, genetics, medical supplies, poisons and welfare foods from the list of matters reserved to the UK Parliament, allowing the Scottish Parliament to make separate provision in these matters for Scotland.”

I put forward the new clause hesitantly. I just want to probe the Government for an explanation of why the Scottish Parliament is not going to be allowed, under our Scotland Bill, to debate or decide these matters.

These matters are, of course, of vital interest to any nation. I well recall that whereas our debates on, say, social security, when we are discussing spending extra billions of pounds, are sometimes extremely poorly attended and attract very little interest, as soon as we get into what I would call these “Moral Maze” issues, where people have strong personal views and there are often free votes, our Parliament really comes into its own. That is what makes a Parliament. It is part of being a Parliament, and what we are trying to create in the Scottish Parliament is, in its essence, a real Parliament. Scotland may be a small nation, but it is a proud nation and it has its own individual point of view, which I would have thought was best determined by the Scottish people, through their Parliament.

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[Mr MacNeil]

I rise to oppose or to provide a different perspective on the amendments tabled by the right hon. Member for Orkney and Shetland (Mr Carmichael). I fear that he wants to do two damaging things through his amendments. He wants to bind what the Scottish Government are doing in regard to other islands by devolving to island council authorities when the ambition should be greater and power should be given to communities. What we have is not a defined community, but a community or group of individual communities. His amendments are also restrictive, and I think it is wrong for this Parliament to tell the Scottish Parliament what it should do in the next step of devolving powers. It would be far more useful and far more innovative if the Scottish Parliament had the flexibility to do what it saw as right rather than putting into the long grass the cases of our islands of Mull, Tiree, Coll or Islay, or a number of other islands that are not mentioned here.

[Mr Carmichael]

I remind the hon. Gentleman that my amendment provides for agreement between the Scottish Government and the Treasury. Surely that would make the design of the scheme open to full input from the Scottish Parliament.

[Mr MacNeil]

If the right hon. Gentleman wants the full input of the Scottish Parliament, why is he trying to bind its hands? He should leave his amendment to one side and leave the Scottish Parliament as the most democratic institution and forum representing the Scottish people, allowing us to arrive at the most democratic, most sought and most wanted forum as the solution.

We know from the island authorities that they are more than happy with the direction of travel that the Scottish Government have taken. I come from one of the minor islands within a local authority area, and I know that the people who live in my island want to control themselves, not be controlled by a council chamber 100 miles away. From Uist, the council chamber is 70 to 100 miles away, while Harris, linked to the same island geographically, does not want to be controlled in Stornoway 45 miles away. In Ness and Lewis, they would rather have control themselves. We need to look at what the communities want, rather than sitting here in Westminster and prescribing what is required in these places. Let us make sure that we give the Scottish Parliament the power and authority, and then we can discuss with the communities exactly what they want, rather than have grandstanding amendments. These amendments stand in direct contradiction to where the right hon. Gentleman was four years ago—in government and in a position to influence, but he did not do so.

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[Mr Carmichael]

I remind the hon. Gentleman that the Western Isles Council, the Comhairle themselves, were urging me to take this course of action. Do they not have democratic legitimacy as well?

[Mr MacNeil]

Absolutely, and when the right hon. Gentleman was in government and he was urged to do this, what did he do about it? Did his Government take the advice of the Comhairle nan Eilian Siar when he was in government?

[Mr Carmichael]

If the hon. Gentleman speaks to his colleagues in local government—I know he does not always do so—I am pretty sure that they will tell him that I was an enthusiastic promoter of their cause within government.

[Mr MacNeil]

I know what they wanted, but it is clear from that answer that the right hon. Gentleman did not take their advice. He had no influence on that Government, but he is now telling us to take their advice. He has a very different agenda. If he had accepted our amendment four years ago, we would already have had control, because the Scottish Government would have given it to us. In fact, he was a blocking force and an obstacle to progress for Scotland four years ago, as he still is. As for his colleagues who were here at the time, as a result of that very attitude, they are gone. Instead, I am one of 56 Scottish National party Members, rather than the mere five last time. I should thank the right hon. Member for Orkney and Shetland for his intransigence four years ago, because it was that very intransigence that led to this raft of colleagues beside me, together debating the Scotland Bill.

The Crown Estate has tremendous control over areas of life in Scotland. It takes millions out of salmon farming each year, and we want more control over what we are doing there. We could stimulate growth and activity in different areas. If we control the taxes, we can do what we feel like. We could do something about revenues from marine renewable energy going south and ensure that they stay within Scotland. We could also ensure that no development is hampered because of the money demanded by the Crown Estate—rentiers’ money that it is lucky to be getting. Years ago, it got nothing from the seabed, but a lucky windfall has now come its way in the shape of offshore renewables.

What is required is for the powers to go to the Government in Edinburgh and for that Government to decide what happens with the community of the realm in Scotland. That is where power and sovereignty rests—with the community of the realm and the people of Scotland. It is for them to decide exactly what they want. Yes, the powers should be devolved. As the Secretary of State said four years ago, the idea of the SNP was to devolve at any cost. He did not listen then, but by goodness, he is listening now.