Scotland Bill

Lord Browne of Ladyton Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord Sanderson of Bowden]

In my case, no doubt everyone will realise that the grandfather will have to pay. That is one part of it. I strongly support what my noble friend Lord Maclennan said when he asked my noble and learned friend on the Front Bench to take this matter away, consider it carefully and come back with an answer that will give us some satisfaction.

The question was asked earlier in this very good debate: do we want this sort of devolution? For my money, I think not—and I certainly know by the amount of disquiet in Scotland over this matter that there is concern that this must be sorted out. It should not be within the power of the present Scottish Government to exercise power in this way, with discrimination writ all over it in big letters. We must think of another way of dealing with this. I realise that legally they are quite correct, but morally they are not. If they want to try to divide the United Kingdom, this is the way to go about it—and frankly I dislike it intensely. It goes to the heart of the argument over whether the United Kingdom should be broken up. I sincerely hope that the two amendments in this group will start a debate in this House and outside it, as my noble friend Lord Maclennan said, and that the Minister will listen carefully and realise the anger that exists up and down the country over this discriminatory measure.

[Lord Browne of Ladyton]

My Lords, it is a pleasure to follow the noble Lord, who put the nub of the issue facing the Government and the Committee very forcefully and clearly. Once more in this Committee, the noble and learned Lord is caught in a pincer movement between my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Forsyth of Drumlean. Yesterday I was in conversation with a Scottish broadcast journalist, who shall remain nameless. He suggested that they were rapidly becoming the Chuckle Brothers of Scottish politics. No doubt as our deliberations go on the divisions between them will become apparent, although many of us know where they lie in any event.

In raising this issue, my noble friend Lord Foulkes brings to your Lordships' House a matter that is perceived by many in Scotland and, indeed, in this Committee, to be a cause of great unfairness. There can be no doubt about that. There are large numbers of people in Scotland who do not think that this is a fair way in which to treat students from England, Wales and Northern Ireland, and for good reason, because Scottish people pride themselves on the progressive nature of their thinking and on their values. Instinctively, they think—and they are right—that it is unfair that students who come to Scotland from England, Wales or Northern Ireland are treated differently from Scottish students or students from the European Union. The difference is obvious. We have the benefit in our deliberations of the summary by the noble Lord, Lord Sutherland, of the short history of this difference.

It is undoubtedly true that the fact that there are different systems of student support and student fees in different parts of the United Kingdom means that there is discrimination. While it has existed for some time, that discrimination has, by recent decisions of the UK and Scottish Governments, been driven to new heights, and consequently it is now much more apparent than it was. As my noble friend’s amendment and the support for it show, it raises real issues about whether within the United Kingdom we can continue to operate such a discriminatory regime without addressing its inherent unfairness. To that extent, my noble friend is to be congratulated because he focuses his arguments very sharply, and it is clearly right to debate them, as the contributions we have heard thus far make clear.

Whether it is appropriate to have this amendment in this Bill is a matter that the Minister will no doubt address. In one view, having devolved education, including higher education and student support, to the Scottish Parliament, it is a matter for it, and we should live with the consequences, which should be reflected in the political circumstances in which it operates. Whether there is some strong constitutional reason for leaving this to the Scottish Parliament, the amendment proposed by my noble friend raises real practical issues, and the debate that took place in the committee in the Scottish Parliament on the order that set out the specification of these fees encapsulated that. These practical issues will be reflected in the budget for Scotland. I do not think that any noble Lord who has contributed to this debate seeks to set the budget for the Scottish Government or, indeed, the Scottish Parliament but, effectively, that might be what we were doing if we dealt with this issue.

[Lord Forsyth of Drumlean]

My amendment is different from that of the noble Lord, Lord Foulkes, and we will no doubt come to it, but I have a simple, straightforward question for the noble Lord. Do the Opposition think that as part of the devolution framework, of which they were the midwives or architects, it is right that the Scottish Parliament should be able to exercise any power which results in discrimination against people resident outwith Scotland relative to people in the rest of the EU? It seems that there is an important principle here, of which fees are an illustration.

[Lord Browne of Ladyton]

I have not been long in your Lordships' House, but I have learnt to be wary of the noble Lord’s simple questions. It is a pretty straightforward question and, when we were sharing responsibility with the people of Scotland for the devolution settlement, it was certainly never envisaged that this discrimination against young people in relation to higher education would be a consequence. I do not think anybody imagined that. In fact, I suspect that had the issue of internal discrimination in the United Kingdom been raised, we would have set our face against it in the original Act.

However, the politics of Scotland have moved on and, as the noble Lord, Lord Sutherland, and my noble friend Lord Foulkes spelt out very clearly, decisions have been made about student fees and the way in which we support higher education, and they have had consequences. One of them has been a significant potential financial disadvantage to Scottish universities, which could have untold detrimental consequences in the longer term for their ability to hold on to the best of their staff or to provide the level of education that they pride themselves on having provided, in some cases over centuries. That was an issue that had to be addressed and those who have looked at the way in which this discrimination has come about and how it was debated in the Scottish Parliament will know what the issues about funding are. It may be possible to address them in other ways but I do not know the detail of that. I am not supporting the way in which they have been addressed here. It is right that we should debate them but I am not entirely certain that this is the right way to do it.

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[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord and I am completely out of my depth because I have never really understood the legal profession. Is he saying that a situation existed where there were rights of audience that were unique to Scots that would not apply in England, but would apply to the French, the Germans and everyone else in Europe? Is that the position? If that is the case, rather like me I am sure he would believe in the single market and, advancing that, would regard this as anomalous.

[Lord Browne of Ladyton]

The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.

Going back to my noble friend’s amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.

I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O’Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.

[Lord Selkirk of Douglas]

Would the noble Lord care to bear in mind that the Law Reform (Miscellaneous Provisions) (Scotland) Act removed the discrimination which he claimed with regard to rights of audience for solicitor advocates? I also understand that my noble and learned friend Lord Mackay of Clashfern was instrumental in ensuring that the same thing happened south of the border.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for that intervention. I am a member of a profession that prides itself on discrimination—at least certainly in its history it did—between those who had rights of audience in the higher courts and those who were historically perfectly capable of making the arguments but were denied. That division was addressed in the way the noble Lord has suggested. I am absolutely certain that the discrimination I was alluding to, which was based more on geography than on someone’s membership of certain branches of the profession, has now been addressed. I am not entirely sure whether it has or not, but the purpose of introducing it was not to take us down a cul-de-sac, but to explore the issue of whether the interest in principle of the noble Lord, Lord Forsyth, was a necessary way of redressing a situation that went beyond student fees.

[Lord O'Neill of Clackmannan]

Perhaps my noble friend would remember that we do not need to have a solution that covers every form of discrimination. He should not allow the waters to be muddied by the somewhat unhelpful intervention of the noble Lord, Lord Forsyth, by way of a question. It is quite clear that on the educational issue here, this Committee is united. That is the message which should go up the channels of the Labour Party to those who will think about considering another amendment at some stage and whether or not it could be supported. Let us be clear: we just want something on fees and on the discriminatory effect of that issue.

[Lord Browne of Ladyton]

I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.

[Lord Forsyth of Drumlean]

Perhaps I can help the noble Lord. It is great to have a rebuke from the Opposition Benches. I was actually thinking that it would be easier for the Opposition to accept a point of principle in respect of devolution rather than accept a restriction on the policy freedom that was implied for the Scottish Parliament. I was just trying to be helpful.

[Lord Browne of Ladyton]

I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.

As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.

I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.

My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.

Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.

Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.

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[Lord Browne of Ladyton]

My Lords, it is a pleasure to follow the noble Earl, Lord Mar and Kellie, who asked a legitimate question. If there are advocates for the policy, they should be heard in Scotland and the Scottish people should make their decision. Nobody could criticise my noble friend Lord O'Neill of Clackmannan for being a shrinking violet in this regard. He speaks with authority and obvious knowledge about the benefits of nuclear energy and the role that it should play in the mixed energy economy of Great Britain. I accept the noble Earl's challenge and thank my noble friend Lord Sewel for giving me the opportunity to outline, in a couple of minutes, some of the basic points about a single GB energy market in which nuclear energy will play a part.

The existence of a single GB energy market is manifestly to the benefit of Scotland and to the rest of our island. It allows the sharing of resources, risks and rewards. The development of renewable energy capacity in Scotland depends largely on substantial support from that market. As noble Lords said, energy is in the main a reserved matter under the Scotland Act. However, through the exercise of devolved power over the planning system, the current Scottish Government are able to prevent new nuclear plants being built in Scotland. They have said that it is a matter of ideology and that that is what they will do.

As noble Lords heard, Scotland produces a not insignificant proportion of its electricity through the nuclear power stations at Hunterston and Torness. I have noted in my short time in your Lordships' House the development of the concept of declaring an interest. I do not declare this as an interest, but it may be of interest to Members of the House that as a student I was involved, as a McAlpine fusilier, in building the Hunterston B power station. I remember being handsomely rewarded for my work and benefiting from the great advantage that in those days, students did not pay any tax on a substantial part of their income. Therefore, in a small way I contributed to the energy security of our country. Since Hunterston is a nuclear power station, it will be a lasting legacy—although perhaps not a legacy of which everyone would be proud.

At times of peak demand, Scotland, which produces a significant amount of energy, imports electricity generated by nuclear power stations in England. Under a separate Scottish energy policy—God forbid that there should ever be one—that would have to continue, in order to maintain base load power and to prevent the lights going out in Scotland. However, both Hunterston and Torness will come to the end of their operating life in the next few years, as we heard—although one or other may continue, depending on the safety case. The position of the SNP Scottish Government on nuclear energy appears contradictory. They seem happy to import the energy from England, but impose a policy of no nuclear energy in Scotland on ideological grounds. This does not seem to be a point of principle or ideology. It is a political issue in Scotland that works in their favour in the mean time, but will not in the longer term.

The noble and learned Lord the Minister is not here to answer for the Scottish Government, and I do not ask him to. However, perhaps in his closing remarks he will indicate what he understands the position to be in relation to the extension of the life of nuclear plants currently operating in Scotland. I have reason to believe that there will be a positive response from the Scottish Government to the life extension of these stations, for the obvious practical reason that there is no substitute for them in the offing. If that is the case, where does the ideology lie? Where is the point of principle if the life of these plants can be extended but new ones cannot be built?

I am conscious of the time, and I do not want to detain the Committee unnecessarily. I have made the points I want to make. I am grateful to my noble friend Lord Sewel, who has provided the Committee with a good opportunity to remind itself of the one irrefutable fact: the benefit of a single GB energy market. The whole of Britain, including Scotland, benefits from this market. It makes no sense to break it up, and we should continue to try to protect that market.