Scotland Bill

Lord Browne of Ladyton Excerpts

Thursday 2nd February 2012 Lords Chamber

Moved by

[Lord Browne of Ladyton]

18: Clause 11, page 8, leave out lines 16 to 18

[Lord Browne of Ladyton]

My Lords, I speak Amendments 18 and 20 in my name and that of my noble and learned friend. Clause 11 devolves legislative competence to the Scottish Parliament in relation to the regulation of some of the powers on air weapons, as recommended by the Calman commission. The purpose of our amendment is, again, to probe the rationale behind the Government’s selective implementation of the Calman commission recommendations. Amendment 18 seeks to remove the exception that the Government make to the devolution of powers to license air weapons in the case of those weapons designated as “specially dangerous” by the Secretary of State.

The Minister will forgive any deficiencies in the amendment itself. It seeks to improve a definition in an area of law that is fraught with confusion and in serious need of rationalisation. It is a continuing disappointment that the Government—and I think that the previous Government were in the same position about this—have not yet heeded the calls from the Home Affairs Select Committee, among others, on firearms control that call on the Government to rationalise the regulation of firearms in one single piece of legislation. The legislation is difficult to understand as it is presently enacted. None the less, I hope that the amendment will give the House the opportunity to debate the issue of the devolution of air weapons regulation in detail and to tease out from the Government the rationale behind the continued reservation of certain powers for the licensing of these weapons to the Secretary of State rather than devolving them.

Grouped with our amendments is Amendment 19 in the name of the noble Earl, Lord Shrewsbury, who generously shared with me the argument and some of the points that he intends to make in support of it. I do not intend to steal his thunder, but in general terms they test and explore the practicalities of two separate regulatory regimes on this one island. His points are germane to the workability of what is proposed. I look forward to his contribution and, more eagerly, to the Minister’s responses to his contribution and the questions that he will pose.

It will be known to many noble Lords that air weapons are an issue of particular importance to the people of Scotland. There have been too many cases in recent years when misuse has led to terrible consequences, such as the tragedy of two year-old Andrew Morton’s death. The people of Scotland demand action from their politicians and we on this side of the House wholeheartedly support the devolution of powers to Scotland to regulate or, if the Scottish people choose to do so, to ban air weapons, but that is a matter for the Scottish Parliament. We are not blind to the practical consequences of such a change.

We are concerned, however, that the Bill as it stands does not go far enough in granting Scotland the powers that it needs if there is to be a change, and does not faithfully reflect the Calman commission’s recommendations, despite noting from the Calman commission that,

“there are advantages in having common offences relating to the misuse of firearms across Great Britain and that there could be serious disadvantages in having different, unco-ordinated policies”—

the important word there is “unco-ordinated”. The commission advised that,

“if there is appetite to deal with air weapons differently in Scotland than south of the border then the advantages of enabling the Scottish Parliament to do so outweigh the disadvantages”,

and therefore recommended that the regulation of airguns should be devolved to the Scottish Parliament. The commission explicitly rejected the Scottish National Party’s call for the devolution of firearms regulation in its totality, something that we on this side of the House do not support, on the basis that Calman found no evidence that Scotland had a particularly acute problem that demanded distinct legislation as opposed to any other part of Great Britain. However, the commission concluded that there was sufficient reason to discriminate between firearms because of a genuine appetite on the part of Scotland to deal differently with these particular air weapons, and this clear demand outweighed the possible disadvantages of a differentiated system.

It is important that the reason the commission did not recommend the devolution of legislative competence over all firearms was not the cross-border problems of an unco-ordinated policy but because of a lack of perceived necessity for the differentiated policy, and that meant that the balance fell in favour of co-ordination. When the commission found evidence for a real need for devolution, it found in favour of devolution with no exception, despite the fact that some air weapons are clearly as dangerous as other firearms.

However, the Government have decided to exempt those “specially dangerous” air weapons that are subject to special licensing or prohibition by the Secretary of State from devolution. This is clearly contrary to the commission’s recommendations and, in my submission, will only add to the confusion and fragmentation of an already confused and fragmented area of the law—firearms regulation across the UK. Noble Lords will note that this amendment does not remove the exception to air weapons which are prohibited under Section 5 of the Firearms Act 1968, and Section 1(4) of the Firearms (Amendment) Act 1988. However, I would still like to probe the Government’s logic here; to me it seems unclear.

The devolution of legislative competence over air weapons currently banned in the UK would, indeed, create a differentiated system of regulation across the UK, with all the associated cross-border problems. However, the Government must anticipate that the devolution of competence over most air weapons, which is what they propose, is still likely to produce such a result; the only difference being that the prohibition or the regulation of the other air weapons will exist in Scotland and not in the rest of the United Kingdom.

I regret that when this clause was debated in another place, the focus of the debate was largely on the Scottish nationalist obsession with the devolution of powers over all firearms and this issue, although presented to the other place, was not debated or properly answered. I hope that today we will have an opportunity to focus debate on the specific settlement proposed in the Bill and to ensure that the Scottish Parliament is granted the powers it needs properly to address the issue of air weapons in Scotland.

[The Earl of Shrewsbury]

My Lords, with the leave of the House, I wish to speak to my Amendment 19. I declare an interest as honorary president of the Gun Trade Association.

The format of this amendment is not without recent persuasive precedent. The Firearms (Electronic Communications) Order 2011 was made under the authority of Section 8 of the Electronic Communications Act 2000 and provides for the Secretary of State to direct forms of electronic communication that may be used for sending statutory notices under the various firearms Acts. Before giving any such direction, the Secretary of State is required to consult Scottish Ministers, the Associations of Chief Police Officers in Scotland and in England and Wales and “such other persons” as he “feels should be consulted”—a term which the Home Office suggests in its circular must include the main shooting organisations as well.

Clause 11 of the Bill contains no indication of the type of changes to the law concerning low-powered air guns that are envisaged by those who have sought to have controls devolved to the Scottish Government. However, Scottish Government press releases issued under the authority of the present Secretary for Justice have indicated that a form of licensing of air guns has been, and is, under active consideration. The amendment seeks to ensure that full and detailed consideration is given to all the ramifications of any form of legislation by requiring a consultation process that includes a cost-benefit analysis.

The imposition of restrictive legislation on air guns will have cross-border implications on those who travel with firearms to Scotland from other parts of the United Kingdom, from within Europe and from the wider world; or from Scotland to such places. Air guns are generally excluded from most aspects of firearms legislation and are outside the definition of “firearm” for the purposes of the European directive, Article 1(1). Only where the control of firearms has had a particularly troubled history in countries such as Ireland and Northern Ireland are air guns treated in the same way as firearms.

As we all know, the border between Scotland and England is entirely open. Different legislation on each side of an unpoliced border will create major problems in terms of movement of individuals and of air guns themselves. For the trade there will be serious issues in respect of mail order and face-to-face transfers in either direction. Direct sales, either by way of trade or between individuals, will be completely unpoliceable. It seems right that police on both sides of the border should be consulted about potential policing problems, and that the trade on both sides of the border should be consulted about the effects on its businesses.

The burden on the police of a licensing system for air guns will be enormous. Initially, some 500,000 air gun owners in Scotland may be affected but it seems probable that a proportion of owners will not take up the licensing scheme and will either dispose of their air guns or retain them without a licence. There is little chance of the greater proportion of non-compliance being discovered, since there is no record of those who now own air guns. Your Lordships may well be aware that a considerable percentage of air weapons carry no serial numbers, in particular the less expensive and therefore far more common weapons, and are therefore untraceable.

The initial take-up of licensing may be by 500,000 or fewer people. Existing holders of firearm and shotgun certificates total some 67,000 individuals. If a system akin to that for licensing firearms and shotguns were to be imposed on air guns, the burden on the police firearms licensing departments would increase eightfold, at a time when firearms licensing departments are cutting staff and slippage in turnaround of applications is becoming far worse.

According to a 2009 survey by ACPO in England and Wales, the grant of a firearm or shotgun certificate involves six or seven hours of police time. That may be overstated, but if a licence for an air gun involved only three hours of police time, more than 1.5 million additional hours would be required in the first year. Perhaps exemptions would be made for existing firearm and shotgun certificate holders, or perhaps further savings could be made by way of various exemptions; but even then the burden on the police would be more than 1 million man-hours. This has to be paid for.

It may be argued that the cost of all this could be recovered from the air gun owner, but Treasury guidelines demand that fees reflect only the actual cost of issuing the licence or certificate in question, and these recover only a small part of the cost to the firearms licensing department. They do not include enforcement measures or costs not directly linked to the grant of the individual licence.

Police in other parts of the United Kingdom would be involved in costs—probably large costs—related to the enforcement of any new laws in Scotland. An air gun sent by a dealer in England to a customer in Scotland might well involve a contravention of Scottish but not English law. However, inquiries would have to be made by English police about the actions of the English dealer.

Sporting shooting is an important factor in the economics of Scotland. According to VisitScotland, those living outside Scotland who visit Scotland for sporting shooting generate some £50 million per year for the Scottish economy. It is not unusual for the visitor to take an air gun with him for use against pests or in recreation. Such people will either continue to do so in ignorance of a new law, or they may be deterred from visiting at all if bureaucratic controls are in place. Major international target-shooting events are staged in various parts of the United Kingdom. Large numbers of competitors travel from Scotland to compete in events at world-famous venues such as Bisley, while the major Scottish meetings attract members from England and further afield. Shooters are likely to be inhibited from travelling to such events by bureaucratic controls, and many will simply stay away. Organisations representing field and target shooters on both sides of the border should be consulted.

Finally, while Clause 11 relates only to the potential for laws to license or otherwise restrict air guns in Scotland, such laws will impact on the rest of the United Kingdom, and it is right that proper consultation with those inside and outside Scotland should be required, so that those who may be affected at least have a statutory right to have their views heard.

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[Lord Wallace of Tankerness]

The noble Lord, Lord Browne, quoted other parts of the report, which said that, notwithstanding that, there would be cases where devolution would be appropriate. Indeed, the commission identified particularly Scottish circumstances as to why air weapons should be devolved. That was the commission’s recommendation, which not only the present Government accept and are trying to implement through the Bill; the previous Government also agreed to the principle of devolving the power to regulate air weapons to the Scottish Parliament in the White Paper that they published in response to the Calman commission.

I am trying to make the point that some categories of air weapons are currently subject to a licensing regime because of their power. We still seek to maintain that reservation for that category, subject to the Secretary of State’s powers under Section 53 of the Firearms Act.

[Lord Browne of Ladyton]

I thank the noble and learned Lord for giving way. Indeed, I am grateful to the noble Lord, Lord Forsyth, who, in one simple question, encapsulated what it probably took me seven minutes to say. The purpose of this devolution is to respond to an obvious desire in Scotland for the greater regulation of air weapons generally. Regulating them more means licensing, at the very minimum. It is inconceivable that if the Scottish Parliament is given this power, it will not make all air weapons subject to a licensing regime. The distinction, therefore, between an air weapon of lesser capacity, force or power not being regulated and one of more power being regulated disappears. There will be two licensing regimes for air weapons when, in my submission, there should be one. If there is to be a distinction between, or a subdivision in, the licensing regimes for air weapons—one at the UK level and one at the Scottish level—will that not just add to the confusion rather than making matters simpler?

[Lord Wallace of Tankerness]

I see the point that the noble Lord is making but I do not necessarily follow him down that route. For a start, this is the devolution of a power. It is a prescription as to how that power might or should be used and, even if it is a licensing scheme, it may well be very different. We seem to be getting weapons that are not subject to the kind of strict licensing regime that we have at the moment. Therefore, I think that a distinction can be made, which we wish to keep, for weapons of greater power so that we can maintain consistency across the United Kingdom. As I have already quoted from Calman—it might even be the passage that the noble Lord read out—there seem to be advantages in maintaining that consistency.

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[Lord Browne of Ladyton]

My Lords, I am grateful to all noble Lords who took part in what developed into a debate that was much more interesting than my introduction. From my experience in your Lordships' House, that did not surprise me. I am grateful to the noble Lord, Lord Forsyth, who in one of his early interventions brought a degree of clarity that I had not managed to achieve to a point I had tried to make. I disagreed with some of his other interventions, but we will have an opportunity to debate the genesis and value of Calman at a later stage and in proper circumstances. However, in his most recent intervention he may well have pointed out where the problem lies in relation to a coherent approach to this. It is a matter of regret that we do not have a Home Office Minister at the Dispatch Box to respond to the debate.

The story that lies behind this is that repeated incidents in Scotland of the nature of the tragic death that I referred to generated a desire to regulate air weapons. The noble Viscount, Lord Slim, pointed out very wisely from his informed background that air weapons are all potentially lethal. There was a discussion between those who represented the Scots, including Members of Parliament and the Home Office, which moved toward the possibility of regulation on a UK level, but then stopped. The frustration generated by the Home Office's unwillingness to proceed exacerbated the discontent in Scotland. An indication that something would be done was snatched away. The key difference is between weapons that are regulated and those that are not, because those that are not have the potential to be lethal and have been proven to be lethal in a number of cases. This has caused the Scottish people to say, “We want our Parliament to have the power to do something about unregulated weapons and to regulate them”. That is the set of circumstances to which Calman responded. Far from having to look around for powers to devolve, the significant cross-party lobby for the regulation of air weapons in Scotland was waiting for the opportunity of Calman or something similar to articulate its arguments.

[Lord Forsyth of Drumlean]

I apologise if I gave the impression that the regulation of air weapons was not an issue. When I said that they were looking around for powers, I meant that they were looking around for powers to devolve. There certainly was an issue. Another example, which we will come to later, is giving the Scottish Parliament the power to decide speed limits. We have ended up with a Bill that gives the Scottish Parliament the power to regulate the speed of motor cars but not of HGV lorries. That is absurd. The distinction between different categories of air weapons is a similar example.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention. I understood the rhetorical point that he made. In relation to the issue that we are debating, there is a very strong desire in Scotland to have air weapons regulated. The Scottish people would have been happy if there had been a prospect of a system of regulation that would have been applied to the whole of the United Kingdom. In the absence of that prospect, the Scottish people say—and I agree with them—that if the power can be given to the Scottish Parliament, this should at least have the opportunity to regulate air weapons and to deal in some way with the obvious menace of their misuse. I am grateful to the noble Lord for allowing me to make that point in this context. Otherwise, what may appear to some to be a trivial piece of devolution, or to others to be something that is delivering unnecessary complications, will not be seen in its proper context.

I am grateful to the noble and learned Lord for the care he took in responding to my probing amendment on these matters. Characteristically, he engaged with the issue and articulated what I thought was the Government's argument for this exception to the devolution of responsibility for all air weapons. He will appreciate that I need to study his response, because I am not familiar with this area of law and I know how complicated it is. I incline to the view that if the distinction is caused by the existing licensing regime for some weapons—when I anticipate that there will be a licensing regime for all weapons—I may not be satisfied and may have to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

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Debate on whether Clause 12 should stand part of the Bill.

[Lord Browne of Ladyton]

My Lords, I approach the Dispatch Box to probe again the distinctions between what Calman recommended and what the Government have chosen to do. On this occasion, the Government have gone beyond the Calman recommendations.

Clause 12 has the backing of respected bodies, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland. During the many evidence sessions throughout the Calman process, it became clear that the insolvency profession in Scotland sought the harmonisation of insolvency law on both sides of the border. However, Clause 12 goes beyond the original Calman recommendations. Your Lordships will recall that Calman recommended that the UK Insolvency Service be responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border.

Calman went on to recommend that this could be achieved by UK legislation to which the Scottish Parliament would consent by a legislative consent Motion under the Sewel convention—I think those are the exact words of the recommendation. I understand that technically—a word I do not like to use—this is exactly what the Government have done in the sense that this Bill is UK legislation that has to be consented to by a legislative consent Motion by the Scottish Parliament. However, that appears to be a pedantic argument, and I do not expect that the noble and learned Lord will resort to it.

The clause does not appear to be in keeping with the spirit of the original Calman recommendations. Does the Minister believe that this is the correct implementation of Calman, or does he agree that it goes beyond Calman? It goes beyond the reservation of the power for the Insolvency Service to lay down the rules to be applied by insolvency practitioners on both sides of the border and reserves the whole body of law on corporate insolvency. If the Minister agrees that this goes beyond the Calman recommendation, will he outline the reasons for so doing?

The report of the Scotland Bill Committee of the Scottish Parliament, which was overwhelmingly approved by the earlier legislative consent Motion of the Scottish Parliament—as I have said before, it was supported by Alex Salmond—approved Clause 12, subject to provisions being drafted that will secure capacity for devolved legislation to effect the winding-up of registered social landlords. Does the Minister believe that this condition has been satisfactorily met? If so, can he explain why that is the case; and, if not, can he justify to this House why he has decided to pursue an alternative path to that sought by the Scotland Bill Committee?

During the debate on this clause in the other place, the Scottish nationalists asserted that there were concerns about the process of amending existing provisions on winding up registered social landlords. One concern is that future amendments, they say, would be easier to come by if this policy area were devolved rather than reserved. As is often the case with Scottish nationalists, this was asserted as though it were fact, and, as is also often the case with them, the assertion was not backed up by any evidence to suggest that that would be the case. No examples were given to support this theory, for that is all it is. It appears simply to be a continuation of their argument that everything would be better if it were devolved to the Scottish Parliament. The Minister in the other place, the Parliamentary Under-Secretary of State for Scotland, argued that this is not a cause for real concern, and I support that position.

However, the Minister went on to say that there was a problem and that there were ongoing discussions between the Insolvency Service and the Scottish Federation of Housing Associations to discuss the latter’s specific concerns about this clause. Perhaps the Minister will update the House on the progress, or better still the outcome, of those discussions to satisfy us that the issue has been resolved. I am certainly not the only Member of this House to have received a briefing note from the Scottish Federation of Housing Associations that articulated continuing concern about the impact of this clause. I would not like to think that this is a sign that discussions were not successful, but if they were not successful, the Minister should explain to the Committee what is going on.

There is an identified issue here about circumstances that may arise in the winding-up or potential insolvency of a particular vehicle for delivering important housing in Scotland or a housing association. It is recognised that this needs to be resolved by discussion or perhaps by a change in regulation. Before we agree to this clause standing part of the Bill as drafted, your Lordships' House is entitled to know whether that issue has been addressed and satisfactorily resolved, or at least to have the confidence that a resolution is on its way.

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Browne, for giving us an opportunity to look at this clause. Schedule 2 is also relevant to insolvency. As he indicated, there was a recommendation from the Calman commission that the UK Insolvency Service should be made responsible for laying down rules to be applied by insolvency practitioners on both sides of the border. The noble Lord asked a very pertinent question about why the Bill goes beyond the specific terms of the Calman commission’s recommendation.

The commission was persuaded by evidence from stakeholders, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland, that a consistent approach to winding up would bring significant benefits to creditors, companies, insolvency practitioners and others dealing with insolvent companies in both England and Wales and Scotland. The Institute of Chartered Accountants of Scotland said:

“We do not see any advantage in encouraging divergence of practice when businesses across the UK operate in a similar environment”,

and,

“This will promote a more stable environment for corporate recovery and turnaround and be more comprehensible for creditors and potential investors”

Certainly in the present environment, that is an important consideration. Many winding-ups involve groups of companies that operate on both sides of the border. We believe that it will be more efficient in time and money if the same winding-up rules, other than where Scottish common law requires something else, are applied to each insolvent company in the group.

These amendments will make reorganisations more efficient and increase returns to creditors and shareholders. Group reorganisations may involve subsidiaries being wound up, and a common approach to winding-up rules should help to reduce the cost and complexity of group restructurings whose constituent companies operate both in Scotland and in England and Wales.

Indeed, in its evidence to the Calman commission, the Institute of Chartered Accountants of Scotland, which regulates most of the insolvency office-holders working in Scotland, highlighted the benefit of consistent rules in promoting a more stable environment for corporate recovery and turnaround. Further, the Law Society of Scotland reported in its evidence to the commission that, because of the increased number of insolvencies of groups of companies, practitioners have for a number of years been having difficulties where parts of the group are subject to the rules for England and Wales and parts to the Scottish rules. The Calman commission was persuaded that there should be a consistent approach to winding-up rules, and the UK Government agree with that position.

The commission recognised that its first option for implementing its recommendation that the UK Insolvency Service, with appropriate input from the relevant departments of the Scottish Government, should be made responsible for laying down insolvency rules for England and Wales and Scotland might not be achievable for technical reasons. It therefore acknowledged that the devolution settlement might need to be amended to secure the desired effect.

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This is sensible evidence-based legislation, and I therefore commend the clause and, when we come to it, Schedule 2 to the Committee and propose that they stand part of the Bill.

[Lord Browne of Ladyton]

My Lords, I am very grateful to the noble and learned Lord for his comprehensive response. I had hoped that he would lay out clearly why the Government have chosen to go beyond the Calman recommendations, which he has done, and I found his arguments persuasive.

Clause 12 agreed.