Scotland Bill

Duke of Montrose Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Wallace of Tankerness]

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

[The Duke of Montrose]

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Statement given to us by the Minister shows that quite a lot of the measures that are currently in the Bill have been withdrawn, so it is simplified from that point of view.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

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, I welcome the fact that a legislative consent Motion has been agreed. I also welcome its terms; I mentioned that earlier, and we may have the opportunity to discuss it later on. However, I want to refer briefly to the very important point made by the noble Lord, Lord Forsyth, almost as an aside in his introduction. It was about the speed by which this legislative consent Motion was agreed within the Scottish Executive.

At the end of this week, I am going to one of the most newly independent countries to talk about its request for accession to the European Union. The EU has made it clear to that country that it will not get membership—I am sure that the noble Lord, Lord Williamson, knows exactly what I am taking about—until it can show that there is a clear separation of powers between the legislature, the Executive and the judiciary. It is right that the EU should impose that condition upon the application, and we are going to discuss it and what needs to be done to change the arrangements in the country’s constitution.

It occurs to me now that the situation in Scotland, which has come about because of a series of events, is presided over by someone chosen by the First Minister, and that there are committees—my noble friend Lord McConnell knows more about this than any of us, and I know that the noble Lord, Lord Steel, has looked at it carefully—which were supposed to be the checks on legislation as it went through and to challenge and question what the Executive were doing, as indeed they did until the most recent election in Scotland. These committees have SNP majorities. With committees here, where there is a government majority in the House of Commons among committee members, we get a degree of independence and challenge to the Executive. There is none of that in Scotland now.

Even here in the Cabinet—if the situation is still the same, and I understand that it is—before agreement is finally reached, a letter or memorandum is sent around the various departments concerned, agreement has to be reached by the department and there is some consensus. That takes time and some thought. In Scotland now, all it needs is for one man to make a decision that something will happen and it is automatically agreed by his Cabinet and Executive, which are beholden to him, and by his legislature, which is also beholden to him. That is not good for democracy. It would not be acceptable if an independent Scotland applied for membership of the European Union, which is another reason that could rule it out. That situation is very worrying and something that we have not really addressed in this Committee but should have done at some point.

Apropos this concern, I said jokingly in a tweet yesterday—the noble Lord, Lord Forsyth, laughs, but this is a modern form of communication and even people of my age have to get used to it—that Scotland might need a second Chamber, and I referred to it mischievously, as I have done before, as a “House of Lairds”, which is just a name for it. I was not suggesting that the hereditary Peers from Scotland should be recalled for that purpose—certainly not the noble Earl, Lord Erroll, for example, but that is another story. Interestingly, from a number of people on Twitter who do not normally agree with me I had a lot of agreement; they are genuinely worried that there is no check and balance on what is decided by the Scottish Executive. This issue is worrying, and it is time that those of us from Scotland who are concerned about Scottish democracy paid some attention to it.

[The Duke of Montrose]

My Lords, I would like to probe a little further the question that my noble friend Lord Forsyth has raised about where we stand on legislative consent Motions. I do not know if what I have will throw any more light on the topic but, as noble Lords will know, we have spent quite a long time considering when a legislative consent Motion might appear. I draw to your Lordships’ attention that there is enough evidence from what Ministers have told us that primary legislation does not require legislative consent.

I am sorry to see that the noble Lord, Lord Sewel, is not in his place because much of what I have to talk about refers to what he told us in this House in 1998. He and others in the House will recall that in the Committee stage of the Bill the question of an application of an Order in Council as being the route by which amendments to Schedule 5 could be achieved was discussed. It is just possible that some people’s recollections might, like mine, be a little hazy since most of this discussion took place at around 11 pm—something that we were beginning to get used to the other day. There was a serious probing amendment, which said that the power to use the Order in Council mechanism should be removed in regard to Part I of Schedule 5. The mechanism was insisted on by the Minister because it was the Government’s intention to make it a condition of procedure that the Scottish Government had to agree to alterations to Schedule 5. Great emphasis was placed on this, which was considered the unequivocal virtue of the Privy Council process. However, the Minister’s view was clearly that primary legislation did not require the agreement of the Scottish Parliament; this can be found in Hansard at col. 849 on 21 July. Therefore, the Scottish Parliament would officially have no say in any primary legislation.

Here, today, we will be only too aware that on previous days the Committee has endeavoured to add amendments to the Bill that would bring in more detailed recommendations by the Calman commission and others. So far, all these efforts have been rejected and many of the amendments at this stage appear to aim to introduce them using the Privy Council route at a later stage. From the approach taken by the Labour Government before us, it seems that any or each of these Orders in Council will properly be subject to a legislative consent Motion from the Scottish Parliament, which is different from the one that we are talking about today. As we have proceeded with this legislation, a great deal has been made of the idea that we are looking for the completion of the Motion before we get on to the Bill.

It is important that the procedures that are required should be absolutely clear. Since this is primary legislation, it would appear—from applying the explanations that were offered to us—that the legislative consent Motion is not strictly necessary for the Bill but would be for the statutory instruments to implement it. Could the Minister tell the Committee whether this argument for seeking some sort of agreement with the Scottish Parliament is just part of a concordat or is being introduced for politeness, or whether some legislative measure has recently been introduced that requires its fulfilment? If not, is it not true that in hard legislative terms the consent of the Scottish Parliament is not required?

[Lord O’Neill of Clackmannan]

My Lords, at some stage I think we were concerned that this might be a complete waste of time if we were not going to get a legislative consent Motion. Whether it was necessary was not the issue. It was a question of whether there was a nod of approval or acceptance from the Scottish Parliament.

In our lengthy debate last Thursday, some of us raised our concerns about what we considered to be the inadequacies of the committee system in Scotland. It would appear that this concern over those inadequacies is shared by the First Minister in so far as he pays attention to them. We are continually assailed in the Scottish press by the question of which country Scotland should be compared with. Should it be Norway or Iceland? It is not Iceland any more and it certainly is not Ireland. Perhaps Belarus would be an appropriate example of a northern European country that operates on the whim of its leader. However, that will be regarded as an insult to Mr Salmond. Such is his sensitivity and the thinness of his skin that if I were to make such a suggestion, I do not know whether I would get off a plane at Edinburgh Airport tomorrow night, although I would be happy to have a go.

We are also indebted to our new communicator—the new electronic man behind me, my noble friend Lord Foulkes. I have heard it said that he has been called a Twit. I do not think that is an unparliamentary word; it may well be appropriate in this case. I have never known the noble Lord, Lord Foulkes, to express himself in anything like as few words as 140. I am sorry; I meant to say 140 characters. I do not know whether there is a sequential tweet here, but perhaps the relevant material could be placed in the Library so that we could see the Foulkes Twitter sequence.

Coming back to the point, it would be helpful if the Minister could give us some indication of the conversations that he had with the First Minister and how this concordat has been arrived at. If we can reach agreement on that matter so quickly, perhaps other problems can be dealt with in a similarly efficient, if not particularly democratic, way.

--- Later in debate ---

[Lord Wallace Tankerness]

It is generally the case for all orders that they cannot be amended. However, in earlier exchanges, the noble Lord, Lord Foulkes, asked whether there might even be a draft order. Actually, it was the noble Lord, Lord Sewel. My apologies —it seemed to happen so recently. He raised the possibility of a draft Section 30 order. I indicated then that if it related to the important issue of the referendum, we could take the opportunity of the debates that we are, I hope, about to have to get the reflections of your Lordships on these matters.

[The Duke of Montrose]

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

[Lord Wallace of Tankerness]

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

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

[The Duke of Montrose]

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

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

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

--- Later in debate ---

[Lord Wallace of Tankerness]

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

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

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

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

[The Duke of Montrose]

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

[Lord Wallace of Tankerness]

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