Scotland Bill

Edward Leigh Excerpts

Monday 6th July 2015 Commons Chamber

[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.

[John Pugh (Southport) (LD)]

Does the hon. Gentleman recognise that Northern Ireland already has some of the powers that he aspires to give to Scotland?

[Sir Edward Leigh]

Yes, I was going to come to that point, which is important. I have obtained the help of the Library in finding out exactly what happens in Northern Ireland with regard to abortion, which I will describe in a moment.

My research assistant shares my generally pro-life view—I suppose it is no secret that I will always take the pro-life argument, whether on capital punishment, assisted suicide or abortion. I have my own views, which I appreciate are not the views of everybody in this place. When I was thinking about tabling this new clause, he said to me, “Is this wise? What would the Scottish Parliament decide? Would its views be more like ours in the UK Parliament?” I said to him, “It’s completely irrelevant what my views are or what your views are. That’s a value judgment. It’s not for me for decide.” Frankly, I have no idea whether, if the Scottish Parliament was allowed to decide the law of abortion, it would take my pro-life view and amend the Abortion Act 1967 or not. I have no idea and it is none of my business.

I would have thought that a self-respecting Parliament could and should be trusted to deal with abortion, especially as I understand that the Scottish Parliament already deals with assisted dying. Indeed, in January 2010, the End of Life Assistance (Scotland) Bill was introduced in the Scottish Parliament by Margo MacDonald MSP. It sought to permit assistance to be given to persons who wished to have their lives ended under certain conditions. The Scottish Parliament disagreed with the general principles of the Bill, which is apparently being reintroduced, and that discussion is going on. That is fair enough. When Lord Falconer introduced his Assisted Dying Bill in the other place, he did not seek to extend it to Scotland. Obviously we trust—quite rightly in my view—the Scottish people, through their Parliament, to decide what is arguably an even more important issue than abortion, namely whether assisted dying should become legal. I cannot see the logic—this is why I am trying to probe my right hon. Friend the Minister—in allowing the Scottish Parliament to decide on assisted dying, but not abortion.

Let me deal with the intervention by the hon. Member for Southport (John Pugh). I know he has tabled an amendment on this issue and I look forward to hearing from him later. No doubt he can make these points far more powerfully than I can. The Abortion Act 1967 never extended to Northern Ireland, where abortion continues to be regulated by provisions in criminal law. Under the Offences Against the Person Act 1861, all abortions are illegal in Northern Ireland, subject to very limited exceptions specified in the Criminal Justice Act (Northern Ireland) 1945 and application of case law, chiefly R v. Bourne of 1939. Abortion is currently allowed in Northern Ireland subject to limited circumstances where the pregnancy threatens the life of the woman or where it would affect her physical or mental health in a way that is permanent or long term.

That is the situation in Northern Ireland and, believe me, I have no idea what the Scottish Parliament would decide if it was given this power. In a sense, we already have abortion on demand in this country—that is itself a controversial statement. For all I know, the Scottish Parliament may want to clear up the law in its own way, and I do not see why it should not be allowed to.

[Alex Salmond]

I thought it might help the hon. Gentleman if I gave him a little bit of history. If I remember correctly, the late Donald Dewar wanted this power devolved in the Scotland Act 1998, but was prevented by some sort of star chamber that was presiding over that legislation. Given that that was what Donald Dewar wanted to be done all those years ago, is it not more than passing strange that it is not being done even now?

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[Sir Edward Leigh]

I am grateful to the right hon. Gentleman for describing that bit of history. I understand that this was discussed by the Smith commission—again, we can be given further details—and there was disagreement. Presumably a majority did not want the power to be passed. However, this is not the Smith commission. We are perfectly entitled to disagree with the Smith commission and, following the remarks of the right hon. Gentleman, we are perfectly entitled to give the Scottish Parliament that power.

Indeed, this is a power that other devolved Administrations around the world have. In the United States abortion is a state matter, within the framework of the Supreme Court decision in Roe v. Wade, as altered by subsequent decisions. If I was an American politician, I imagine I would be quite a strong states’ rights person. The United States has an increasingly intrusive and proactive Supreme Court, but the power of states to decide on these important matters, such as the death penalty, is jealously guarded in America. Despite the power that is given to the states in the United States, I do not believe that the republic is any weaker, that the union is any weaker or that these matters cannot be properly decided by people. People can take a different attitude on these great moral issues of the day, depending on whether they live in Massachusetts or Texas, and I think that is probably the case in other parts of the world too. I am therefore not sure I understand the logic—it can presumably be explained to us—of why abortion has been excluded.

When I tabled the new clause, I thought I should try to make it as wide as possible because I was aware that the hon. Member for Southport had already tabled a specific amendment. I included issues such as embryology, surrogacy, genetics, medical supplies, poisons and welfare foods because I did not want this to be a debate only about abortion. It struck me that all those other matters were of great interest, with issues of great national debate raging around them. I see no reason why the Scottish Parliament should not have some control over them.

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[Mr Rees-Mogg]

I wish Doris Day many happy returns, albeit somewhat belatedly, but the hon. Gentleman is not right that all these Scottish taxpayers have paid more tax for 31 years, because some—very distinguished—SNP Members of Parliament are not 31 years old, so certainly have not been paying tax for that long.

[Sir Edward Leigh]

My hon. Friend is giving a very fine Tory speech, not one from the Whiggish camp as we have been hearing from others, but I wonder whether in the deepest recesses of his soul he is a Jacobite, and thinks that if there had been a different settlement we may not have had this problem. The serious point, however, is that we must allow the Public Accounts Committees of both Parliaments to look at the royal finances properly, which they cannot do at the moment.

[Mr Rees-Mogg]

I think that that is a terrible Jacobean, rather than Jacobite suggestion. Although this is not immediately relevant to the debate, I do not think the Public Accounts Committee should be looking at the royal finances. Her Majesty should be allowed some privacy on that, but that is a side issue.

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[Mr Grieve]

I certainly do not think that the Crown Estate is the glue that holds the United Kingdom together. I can reassure the hon. Gentleman on that. There are all sorts of other things that provide that glue.

I said that I was perhaps looking at this too much from a lawyer’s point of view, but I like to look at structures that have some coherence. This particular structure is showing signs of not being coherent. One of the problems with these debates in which we try to reach a sensible and lasting constitutional settlement is that although I would love to accept the arguments put forward by the hon. Member for Na h-Eileanan an Iar (Mr MacNeil), I am conscious of the fact that he does not really want a solution to the problem. Just as the Irish question is said to have changed every time Mr Gladstone asked it, so the hon. Gentleman changes the question each time an answer comes up. He has a desire for certain structures, and although I will do my best at all times to deliver what the Scottish people want, I do not always find it easy to accept the songs that he sings, which are generally designed to lure the Union of the United Kingdom on to the rocks.

[Sir Edward Leigh]

My right hon. and learned Friend said that the Crown Estate was not the glue that held the United Kingdom together. Nothing much is going to change in regard to the Union following these changes to the Crown Estate. The Government are to be commended for the fact that we are having four days to debate these matters, enabling us to go into great detail. However, I support something that he said earlier, and I hope that others were listening. When we are discussing a subject as fundamental as English votes for English laws, which has a direct relationship with the preservation of the Union, particularly in regard to the Barnett formula, one day’s debate is simply not enough.

[Mr Grieve]

I am grateful to my hon. Friend for his comments, but I do not want to be out of order, so I shall not stray too far along that road.

My hope is that we can find a sensible long-term settlement that will meet the desires of the people of the United Kingdom, but my main worry is that that will prove elusive if we pursue a series of measures that do not seem to have been fully reasoned through. I hope that the example in this vignette is one on which my right hon. Friend the Secretary of State will be able to provide all the reassurance I need. Nevertheless, I would not be doing my duty as a Member of Parliament if I did not flag it up.

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[Ian Murray]

I do not think that the Scottish Parliament would disregard them, but it is worth giving proper consideration to the Smith commission’s proposals and the cross-border issues, rather than just devolving the issue of abortion for the sake of it.

[Sir Edward Leigh]

May I have the hon. Gentleman’s view on the logic of allowing the Scottish Parliament to deal with assisted dying, which is just as emotive and important an issue, but not with abortion?

[Ian Murray]

That is the framework of the Scotland Act 1998.