Scotland Bill

Earl of Kinnoull Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Gordon of Strathblane (Lab)]

My Lords, I shall intervene briefly on two points. First, as regards the discussion about “may” and “must”, while I concede that “may” sounds too permissive and does not adequately reflect Smith, it could be argued that “must” sounds as if one needs to coerce an unwilling UK Government. Surely, the word “shall” would be the obvious alternative.

Secondly, as regards the point made by the noble and learned Lord, Lord Wallace, while I agree entirely that the island authorities are wholly competent to manage the Crown Estates, and I hope they will be allowed to do so, the agency for handing over the power must be the Scottish Parliament. For this Parliament to insist in advance that it goes is not devolution, it is compulsion.

[The Earl of Kinnoull (CB)]

My Lords, I shall speak to Amendments 45 and 47. First, I thank the Minister and his officials for the generous amounts of time they have given to date to discussing these matters. These amendments arise from my concern that the Bill is not consistent with the Smith commission agreement and would make Crown Estate assets politically available ones, rather than things held independently for the people of the nation. The wording of the amendments is illustrative only.

As has been observed, the Crown Estate’s core constitutional document is the Crown Estate Act 1961. That document, however, is a cold discussion of constitution and functions and does not address how the Crown Estate works in practice, especially how it works together with Ministers. That is in the HM Treasury and Crown Estate framework document, which is publicly available on the website. That document, which is a model of clarity, makes it abundantly plain that the Crown Estate assets are to be managed on an arm’s length basis. Paragraph 3 states that,

“it is not an instrument of government policy, it is a public body”.

The values of the Crown Estate are clearly set out and include stewardship. The document states:

“Stewardship is deeply engrained in our culture; because of our history and because of our heritage, we act at all times as good stewards of the properties we manage. We strive for the best standards of management: in our parkland and gardens; in our farmland and our forestry; in the marine environment; and in our buildings and streetscapes. So our commercial approach is supported by a clear recognition of our stewardship responsibilities”.

Nothing in the Smith commission agreement suggests in any way that any party to that agreement sought to change the arm’s-length basis that the Crown Estate operates under, or the values by which the assets are managed, including that of stewardship.

I turn to the phrases in the Smith commission agreement, especially paragraph 32, which the noble and learned Lord, Lord McCluskey, just read from. In this, I detect not one iota of any agreement that seeks to change what I just said about the arm’s-length nature of the relationship between the Government and the Scottish Crown Estate. I ask the Minister my first question: does he agree with my assertion?

Secondly, the commission agreement is in respect only of the economic assets of the Crown Estate, which presumably is not all the assets. Will the Minister explain why the Bill currently refers to all the assets, as the noble and learned Lord, Lord McCluskey, said? If this is a change to the Smith commission agreement based on sound reasoning, then would the Minister agree that this type of logic might apply in other situations?

Thirdly, the agreement sees the transfer of management to the Scottish Parliament, as has just been discussed, but if the Minister argues that such transfer is not possible, as I suspect he will, then would he agree that it would be much more in keeping with the Smith commission agreement to maintain the arm’s-length relationship between the Government and the Scottish Crown Estate, using language similar to what I have proposed?

My amendments do not address onward devolution. I am very much in favour of this and I found the speech of the noble and learned Lord, Lord Wallace of Tankerness, compelling. My rather less compelling thought had been that the new Scottish Crown Estate commissioners should make suitable provision for this, in line with the Smith commission agreement and, indeed, with Richard Lochhead’s own words in his document, Administration of the Crown Estate in Scotland—Case for Change, at paragraph 21:

“In particular, there is widespread support in Scotland for an approach to land management which seeks to support communities—particularly in rural and isolated areas—taking responsibility for their own futures”.

I can only think that he and the SNP would therefore not object to onward devolution being in the Bill.

I do not believe that my amendments are in any way inconsistent with the Smith commission agreement; the Bill’s clauses as currently cast are. I would transfer the management of the Scottish Crown Estate assets to a similarly run independent body, so that these important things cannot be used for political purposes, and so that their stewardship continues to be managed on a long-term basis for the people of Scotland.

[Lord Sanderson of Bowden (Con)]

My Lords, I support the thrust of the amendments from the noble Earl, Lord Kinnoull. The Crown Estate is an independent, commercial business. It is extremely well run and, of course, it pays its profits to the Treasury. It is a great shame that we do not have anyone from the Scottish National Party in the Chamber so that we can hear what they have to say about this future arrangement. It would be much better if they were here, but we have to imagine how they will view this whole operation. In supporting the noble Earl, Lord Kinnoull, I hope that they realise that it is not really an arm of government that we want to see in Scotland, but a separate board reporting to the Government and to the Scottish Parliament as to how they are getting on. In supporting the noble and learned Lord, Lord Wallace, I hope that that particular board would have a highland spring in its step.

I turn to the amendment from the noble and learned Lord, Lord Wallace. Having been a Minister for the Highlands, I know only too well that the relationship between the Crown Estate and the Highland councils was not always a smooth-running affair. Of that I am quite certain. However, I strongly support what the noble and learned Lord said about the future arrangements now that we are to have a transfer of functions in relation to the Scottish Crown Estate. I hope that this will be borne in mind by the Scottish Government when they determine how they will run this whole affair. As the noble Lord, Lord Gordon, said, no doubt there has to be a central board, but the people in the islands should also be included in the arrangements going forward. Dare I say that the Glenlivet estate, in the Moray district—which was in the hands of the Forestry Commission but is now very much better run, if I may say so, by the Crown Estate—should also be included in the arrangements going forward?

I have one other thing to say, which has a bearing on what has already been said by the noble and learned Lord, Lord Davidson. Fort Kinnaird, on the edge of Edinburgh, is, in fact, a shopping centre. I will be interested to hear what the Minister has to say about this because Fort Kinnaird is in a different position from that of all the other interests that the Crown Estate has in Scotland, because it is part of a joint fund with other sovereign funds which own that property and properties south of the border as well. The arrangements that the Crown Estate arrives at with its partners in many places, particularly in Regent Street—it owns just about the whole of Regent Street—are built on trust between the various parties to those funds. I hope that the whole question of Fort Kinnaird and its works is left well out of the arrangements for the transfer to Scotland of the Crown Estate, so that it can continue with its present arrangements under the fund, because that is going well and I see no reason at all why that part of the operation should be devolved.

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[The Earl of Kinnoull]

I wonder if the noble Lord can advise the House what the Gaelic for “Cumnock” is.

[Lord Foulkes of Cumnock]

That would take some time. I am not a Gaelic speaker. I can speak in Doric if required. I remember my granny used to call me a “daft loon”.

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[Lord Faulkner of Worcester]

That is very kind of my noble friend, but I do not think it matters who claims credit for what. What matters is that the outcome of those deliberations was an improvement in the situation in which the British Transport Police played a crucial role. I find it utterly inexplicable that these two clauses are in the Bill. I am sure that in due course they will give the Scottish Parliament with a nationalist majority the opportunity, effectively, to nationalise the BTP in Scotland. It would be a terrible mistake, and I hope the Minister will agree to come back on Report and have these clauses removed from the Bill.

[The Earl of Kinnoull]

My Lords, my interest in this was sparked by a conversation with an SNP MP in December in a passageway in the other place. I asked him whether he thought Police Scotland was ready for the British Transport Police, to which he answered that he was sure there would be some teething problems. I find that very worrying because teething problems essentially mean damage to the citizens of the UK, either because some young lady has been thumped or because drug smugglers or terrorists have got through.

In my commercial career, I spent more than 10 years as the director of mergers and acquisitions for a FTSE 250 company. Over Christmas, I thought about how complicated the demerger of the British Transport Police would be. I will not bore the Committee with a lot of what I thought, but I have done demergers as well as acquisitions, so I know. There would be TUPE, which would be horrible because there will be only one human resources department and one accounting department. There would be career progression problems for the existing staff because there would be a disproportionate number of chief superintendents one side of the border or the other. There would be only one training establishment for each type of training and there would be difficulties with that.

In particular, there is the thing that has caused me problems professionally throughout my career, which is everything to do with data. There would be an enormous discussion about who owns what data. Eventually there would be a decision on that, and then there would be enormous problems over the sharing of those data. Those problems would partially have been inserted by Parliament. All that would lead to an immense decrease in the effectiveness of the force. You would end up with two human resources departments, two IT departments and two sets of expensive management sitting on the top. You would not only have an enormous one-time cost, there would be continuing enormous additional costs and a decrease in effectiveness. That is a jolly bad result for citizens of the UK north and south of the border.

This is an area where the parties who turned up to the Smith discussions probably forgot that, although they were empowered to talk about things going to Scotland, they were not empowered to think about things that would potentially damage English members of our union.

[Lord Forsyth of Drumlean]

Is there not another complication: the fact that the financing comes from the operators? Who pays what would be an interesting discussion. The noble and learned Lord, Lord Wallace, made a point about how one would ring-fence the funds. That would be a good discussion.

[The Earl of Kinnoull]

It would be interesting and very lengthy. I thank the noble Lord for yet another item in the list. I am sure that if one sat down one could prepare a demerger list of horrible problems that would tax people for a very long time.

Earlier, we spoke about the Crown Estate and the fact that it appears that where the Smith agreement has got it wrong there is some wriggle room for making some small changes in the Bill. We came across a couple of them in the transposition from the Smith agreement to the provisions of the Bill that deal with the Crown Estate. I suggest to the Minister that this is another area where there could be some wriggle room. Alternatively, we could go for some sort of fudge with a dual reporting line so there would be a unitary, single British Transport Police with agreed rights of reporting, scrutiny et cetera that went to Scottish Ministers in respect of Scottish staff as well as to UK Ministers at the same time.

[Lord Empey]

That was how our problem with the National Crime Agency was resolved: through reporting mechanisms. Our policing board would receive reports from the chief officers of the National Crime Agency. That is precisely the mechanism that was used, and that eventually got the consensus.

[The Earl of Kinnoull]

I am very grateful for that as well. In my commercial career, that option has sorted out a number other problems and is a very useful technique. I would be very interested to hear the Minister’s views on what I have just said and on everything that everyone has said in what has been a very interesting debate on this vital area.

[Lord McAvoy (Lab)]

My Lords, I apologise to the Committee for not being able to be here for start of the proceedings. I was away officially on Whips’ business. I thank my noble and learned friend Lord Davidson of Glen Clova for holding the fort so well.

The Bill makes the functions of the British Transport Police a devolved matter. I associate myself with all the praise expressed for the British Transport Police and its record since 1825. I have no hesitation in doing so.

I have only one comment to make about the contribution by the noble Lord, Lord Empey. I fully understand where he is coming from; he is ad-libbing about the language situation in Northern Ireland. The situation is a wee bit more hopeful than he has perhaps indicated: there are classes in Irish in solid unionist east Belfast, so there are glimmers of hope.

In the opening contribution from the noble and learned Lord, Lord Wallace of Tankerness, he regretted and bemoaned that the Labour Party did not do what he wanted it to do in the Scottish Parliament. I can understand that disappointment and possible resentment, because the Labour Party here had to stand back and watch for five years as the Liberal Democrats backed every vicious and vindictive proposal on welfare put forward by a Conservative Government, with never a word against.

Clause 43 devolves executive competence in relation to the policing of railways in Scotland by specifying as a cross-border authority the British Transport Police Authority, the chief constable of the British Transport Police, the deputy chief constable of the British Transport Police and the assistant chief constable of the British Transport Police. This is in keeping with the Smith agreement, which states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That was agreed. I understand also the suspicion and resentment that some Scottish National Party people seem unfortunately to be expressing the desire to get rid of the word “British”. I regret that. If that is their motivation, it does not say much for them, and we should concentrate on the core of the matter.

Designating the British transport bodies as cross-border public authorities means that appointments to the British Transport Police Authority or to the offices of chief constable, deputy chief constable or assistant chief constable will in future be able to be made only in consultation with Scottish Ministers. I know I should not have to say this but it should be on the record: devolution is devolution. You cannot agree the principle of devolution and then object to its effects. Devolution is devolution.

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[Lord Dunlop]

I hesitate at this point in the evening to introduce the concept of no detriment, and I look forward to Committee day 3, when I am sure we will cover this in great detail. However, the UK Government absolutely have an interest in ensuring that whatever devolution takes place in this space does not cause detriment to the rest of the United Kingdom.

[The Earl of Kinnoull]

The noble Lord, Lord Empey, and I suggested that a solution to this could be a dual reporting structure. I would be happy to explain that afterwards, as I am sure the noble Lord would be. In view of the fact that three or four years of work is stretching before us, which sounds very expensive to me, it might be cheaper just to ask the opposite numbers at Holyrood at one of the forthcoming meetings in the next few weeks whether the pragmatic suggestion of going down the Empey/Kinnoull route might cut the mustard. If it does, it would be a heck of a lot cheaper and, I believe, much more effective. It is a free question. Will the Minister consider at least asking, to see whether they might accept this slightly different approach?

[Lord Dunlop]

I will certainly reflect on the points that have been raised in this passionate debate. No doubt we will return to this subject.