Lord Browne of Ladyton
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Lord Browne of Ladyton
My Lords, I have immense respect for the noble Lord, Lord Forsyth of Drumlean. I listen carefully to what he says, and I have heard this argument from him on a number of occasions and respect it entirely. I have listened carefully, too, to the arguments put forward by the noble Lord, Lord Lang of Monkton. I thought that his contribution ranged much wider than the actual provision that we are considering, but he made some very important points, which are worthy of being recorded. The noble Lord, Lord Kerr of Kinlochard, rose to debate some of them and made a helpful contribution. The noble Lord, Lord Pearson of Rannoch, read in short—and with respect to him, slightly misleadingly—a part of the Bill to make another point. I hope noble Lords will forgive me, but we have debated these provisions in some detail in different ways. I had my say both at Second Reading and in Committee, and that is all recorded. If people want to know what my views are for supporting this provision and its maintenance in the Bill, they can read them at length.
However, in response to the point made by the noble Lord, Lord Pearson of Rannoch, it can sometimes be deeply misleading to read in short a piece of legislation. I am not intending to read it at length, but the operational way of this Bill is to amend other legislation. I think that the answer to his point—the Minister will be able to correct me when he comes again to the Dispatch Box if I am wrong—lies in the fact that the active verb in the piece that he read to us is to “specify” a tax, not to impose a tax. The answer lies in the words that the noble Lord, Lord Pearson, chose. That, put another way, is the point that the Minister was making to him.
In any event, whether or not this provision generates deep and interesting constitutional issues, we know that where this constitutional imperative resides—in the other place—they have already approved this devolution. The Bill has come to us with their approval. It may be that we can say, with some merit, that they did not pay a lot of regard to this clause. It was a differently numbered clause at the time. However, they will certainly pay a lot of regard to it when it goes back to them, and it will not become law if they do not approve it. The responsibilities that they hold in terms of our constitution, they hold. If they choose to devolve them and encourage us within this Parliament to support that, I do not think it is our privilege to prevent them doing so.
For clarification, we also need to look at the genesis of this provision. It is not entirely true to say that Calman was silent on this point. The Calman commission recommended:
“The Scottish Parliament should be given a power to legislate with the agreement of the UK Parliament to introduce specified new taxes that apply across Scotland”.
The noble Lord, Lord Forsyth of Drumlean, who is comprehensively knowledgeable about Calman and this Bill, and has proven that time and again, will see that this provision goes significantly further than the Calman recommendation. However, it is not true that there is no reference in Calman to the devolution of taxation or the creation of a power of this nature to assist future devolution. There is consideration of it in some detail in the report. The arguments for and against are there, and there was a clear recommendation, but I accept that it has been taken further.
As I said in Committee when this issue was debated at great length, the deletion of this provision would leave the Bill significantly reduced, not only in its constitutional significance but in its significance for the people of Scotland. I am not interested in achieving that objective. Our position is that we support the inclusion of this provision, provided that certain checks are in place. That is why rather than seeking to support the deletion of this provision we have tabled Amendment 16, to which I will speak at greater length in the next group, and which we believe would allay much of the concern over the breadth of this provision, were it to be accepted in some form. This of course all depends on the House’s position in relation to this amendment. I accept that the debate on my amendments is dependent on the decision that the House makes in relation to this amendment. However, I was given a certain assurance by the noble Lord, Lord Forsyth, in his introductory remarks that I need not worry about that, so I will now sit down and prepare to argue the next amendment.
Lord Pearson of Rannoch
Before the noble Lord sits down, and with the leave of the House, neither he nor the Minister has answered my main question on this matter: have the people of Scotland given their informed consent to this provision? If they have not done so, will they be invited to do so, perhaps with the provision being specifically flagged up in any eventual referendum?
Lord Browne of Ladyton
I might just respond on this point and leave the Minister to deal with the matter if he thinks I have not dealt with it adequately. My response to the noble Lord, Lord Pearson, is that I think I answered his question by pointing out where he was misreading the provision that he himself chose. He now asks another question and I am happy to answer it.
Scotland is a representative democracy, just as the rest of the United Kingdom is. It has two levels of parliamentary democracy: the Scottish Parliament and the UK Parliament. The Scottish Parliament, which speaks for the people of Scotland, and all parties overwhelmingly approve of the provision. I have no doubt that we will see that in the second legislative consent Motion, which I am confident will be passed unanimously by the Scottish Parliament.
Lord Browne of Ladyton
Perhaps the noble Lord will allow me to finish answering one question before he poses another one. I am asked where the democratic support for this comes from. It comes in the unanimously expressed will of the Scottish Parliament. The noble Lord, Lord Pearson, may not think that sufficient, but I can tell that the people of Scotland think it is.
Lord Forsyth of Drumlean
I do not mean this in a cheeky way, but my recollection is that when we discussed this at an earlier stage the noble Lord indicated that he had not appreciated that these powers were quite so wide-ranging. If he, with all his brilliance and his close study of the Bill, did not realise that, surely the noble Lord, Lord Pearson, is right in suspecting that the people of Scotland might not know that these powers were being provided, or indeed the people of England, Wales or Northern Ireland who could be affected by them?
Lord Browne of Ladyton
The combination of cheek and flattery is so appealing that I can barely resist it. The noble Lord’s recollection of what I said when we discussed these provisions before is not my recollection, but the Official Report will have recorded it. I think that I said it was not fully appreciated how significant these provisions were—not by me; I thought that I had helped those who had not fully appreciated that, but maybe this was a process of education in which I was a pupil, not the educator.
In any event, I am not suggesting that the significance of this important provision of the Bill is widely known and appreciated by the people of Scotland, whatever that phrase means, but I was asked a different question by the noble Lord, Lord Pearson—where the constitutional democratic support lay for this from the people of Scotland. The noble Lord, Lord Forsyth, will recall that I referred to a representative democracy; I did not suggest that all the people of Scotland understood this.
Lord Pearson of Rannoch
I merely say that the record will confirm that the noble Lord has not answered the question that I asked him.
“(7) The use of an Order in Council under subsection (1) of this section shall be assessed against the following criteria—
(a) the potential for the new tax to create or incentivise economic distortions and arbitrage within the UK;(b) the potential the new tax might create for tax avoidance across the UK;(c) the impact of the proposed tax on compliance burdens across the UK; and(d) the compatibility of the new tax with EU Legislation and Rules, such as those covering State Aid and the Single Market, and the Human Rights Act.(8) In proposing an additional devolved tax under subsection (1) of this section, the Scottish Parliament shall provide evidence in support of the criteria specified under subsection (7), including in particular—
(a) the rationale for the devolution of such a tax;(b) the intended tax base, taxable activity and expected revenue;(c) an assessment of the expected distributional impact, including the impact on business and individuals and the wider economic impact;(d) an assessment of compatibility with the Human Rights Act, EU State Aid rules and other directives;(e) plans for the collection and administration of the tax, including means of ensuring compliance; and(f) an assessment of any interaction of the proposed new Scottish tax with UK-wide taxes, including plans to protect policy and geographical borders.”
Lord Browne of Ladyton
My Lords, I beg to move Amendment 16 standing in my name and that of my noble and learned friends. It provides an opportunity for the Minister to make his own contribution to the new-found relationship between the House and the ministerial Front Bench and show that the Government are not only listening but responding positively to positive and helpful amendments that are being tabled to this legislation. We have had two very positive responses on Report today. I think that this is the time for a third positive response, and the Minister has the opportunity to make his own distinct contribution to that.
As I said in a previous debate and as has been apparent in the discussion about Clause 27 thus far, the provisions of the clause are of great significance, constitutionally or otherwise. However, the tenor of the debate in this House, both in Committee and today on Report, demonstrates that it is precisely because of the significance of this provision that there are legitimate concerns over democratic accountability in the exercise of the provision as presently drafted.
In creating the mechanism for the devolution of future taxes to the Scottish Parliament, the Government are providing a stable framework for the continued development of the devolution settlement and, in many ways, for the natural progression of the Calman commission project. It is significant that the commission did not at any point suggest that any new taxation powers should be devolved using the Section 30 order mechanism, which I agree with the Minister could be used for the devolution of taxation. Any of the taxes provided for in the Bill, or indeed any future taxes, could be devolved through a Section 30 order. However, I am not proposing to open a debate about that because, from the way they have chosen to proceed, the Government have clearly come to the view that that is not desirable and that in fact another mechanism should be framed in primary legislation for the devolution of any new or specified taxes. I imagine that the Minister will be able to confirm that that was a deliberate decision as they thought that it would be inappropriate constitutionally to make these significant changes or to allow them using the existing mechanism, and that there needed to be a separate and well understood distinct mechanism for doing so.
For that reason, we on these Benches believe it is important that the conditions which we have debated at some length—I shall not go into the detail of them—and which will be applied to any proposed devolved tax should be clearly understood and set out. Not only do they need to be transparent but the Executive—in the exercise, through Order in Council, of the specification of taxation in the future—needs to be accountable to Parliament. At the very least, there needs to be some mechanism to make the Executive accountable in their future dealings with the Scottish Government against the criteria that the Government themselves set out in the Command Paper, informing how they will exercise this power. Therefore, we support the mechanism but we believe that Parliament should have the right to debate and, if necessary, to amend the criteria to be applied in assessing the convincingness of the case to be made for the devolution of taxation in the future.
In their Command Paper on the Scotland Bill, the Government provided a helpful sketch of the criteria to be applied when considering any future new devolved taxes. However, unless these criteria are placed in the Bill, Members of this House and the other place will have no ability to comment on or amend that list; they will just have to accept it. It is on that consideration that I tabled Amendment 16, which would place in the Bill the list of criteria to be considered for the use of an order to add a new devolved tax, so that Parliament can vote for Clause 27 in the full knowledge of how it will be applied in practice. I imagine that the Minister will not wish to argue with any of the specific criteria listed in the amendment as it transposes verbatim the list in his own Command Paper, so we cannot have a dispute about the criteria. I must assume that if he does disagree, which I hope he does not, his disagreement will lie in an attempt to increase the democratic accountability of the clause.
I am coming to the end of this argument because it is comparatively simple, without going into the detail of it. The Government have given us the makings of a full and properly accountable Clause 27 but they have not brought them together. I recognise that there may be a deficiency in the drafting and that there is an opportunity to take it away and correct it, but all I seek is to bring the two parts of the Government’s thinking together and to put them into a legal framework in such a way that in future—well, actually we can debate now whether these are appropriate criteria or whether they should be augmented or further explained, and if not, we can settle them—we will know transparently that the test has been properly applied.
I am doing this for one other reason, which is very important, too. The Bill will not become active unless there is a legislative consent Motion in the Scottish Parliament. If these criteria are in the Bill, the Scottish Parliament will have to approve them. When the Scottish Parliament has approved them by a legislative consent Motion, which I am confident it will, we will have agreement. We will then have a framework against which to test any future decision we make on whether it complies with the agreement and the Scottish Parliament will know whether the criteria are met. It cannot say in future, “This is a set of criteria that those people in London thought up and imposed on us. They didn’t even have the good grace to put the criteria in the Bill, so they don’t apply to us. We don’t feel ourselves bound by them because they are in your Command Paper and not in ours; whereas, if the criteria are in our agreed legislative framework, we may have a dispute on whether they are met but at least we will know what they are and we will be able to make the argument that you have failed to meet the criteria that you voted for yourselves”.
Lord Forsyth of Drumlean
My Lords, I support the amendment. It is not even half a loaf. I hate the procedure but I agree that it is a great improvement for the reasons that the noble Lord put forward—the last one, in particular: that it would make it clear where the boundaries were in the use of this extraordinary open-ended power.
I have not seen my noble friend’s brief, but I am prepared to stick my neck out and make a prediction, which is that he will not accept the amendment. Writing it in the Bill will create the opportunity for judicial challenge, and the Treasury loves being able to decide the rules and not be subject to challenge. I do not think that my noble friend will like the amendment because it will constrain what he seeks, which is for the Treasury to decide what will and will not happen. He underestimates the extent to which there will be a political challenge from north of the border. I accept that this is an advance so I support the noble Lord’s amendment.
Lord Sassoon
Then it was a no for a very good reason.
My Lords, I thank the noble Lord, Lord Browne of Ladyton, and the noble and learned Lords, Lord Davidson of Glen Clova and Lord Boyd of Duncansby, for the amendment, which exposes an important issue that it is quite right that we should debate. As was well anticipated, I say at the outset that it does not find favour. However, in the spirit in which the noble Lord, Lord Browne of Ladyton, led me on, I will be positive in my response, because there is further reassurance to be given here about what I hope your Lordships will think is a pragmatic and proportionate way forward.
I am not sure whether we are talking about Amendment 17 at this point. My noble friend did not speak to Amendment 17, which is a fundamental one about removing the ability of the Scottish Government to legislate on any taxes that are devolved. Perhaps I will not need to say very much about that; it links to our previous discussion.
Lord Sassoon
We are going back to another question. I am answering the question about the empty space that is created. It is easiest to do that by reference to a specific example of where we are creating the space within which the Scottish Parliament will have the ability to create a new tax framework to fill that space. That example is specifically envisaged. By analogy, that is how I anticipate it will work for possible other taxes in the future if they meet a number of thresholds and requirements, legislative and otherwise, including meeting the requirements that we have been discussing in the Command Paper.
Lord Browne of Ladyton
My Lords, I am extremely grateful to all noble Lords who have spoken in this debate. I am particularly grateful to the noble Lords, Lord Forsyth of Drumlean and Lord Kerr of Kinlochard, for their comprehensive support, stated commendably briefly, for my amendment. I very much thank the noble Lord, Lord Sanderson of Bowden, and the noble Earl, Lord Caithness, for their specific support for the last argument I made, which is the key perhaps to the future of this amendment.
I am also extremely grateful to the noble and learned Lord, Lord Cameron of Lochbroom, who has made a suggestion that will improve the amendment. I agree with him that the order of the amendment would be more fortuitous the other way around but we may have an opportunity to come back to that. I have to say that I will come back to the noble Lord, Lord Lyell, but I thank him for his intervention about “Monty Python”. He has given me an idea for a peroration, which I think he will appreciate—but he will need to wait for it.
In the way in which the Minister has responded to the debate he has entered into the spirit of the day, but that is where it ends. He has only entered into the spirit of the day; we now need to get the content. The Government are listening and responding to the House’s position on this provision. I think that the Minister gets it and understands the point. Although I was a Treasury Minister for a period, I am not entirely sure where the blockage lies but I am sure that it can be moved.
The Minister says that he has made the arguments and hopes that they are convincing. I have to say that I do not think that he made any arguments on either my first or second points, the first being that it would be better if this extensive provision was ring-fenced by the Government’s own criteria in the Bill for the purposes of accountability, at least for the future. With respect to the Minister, a report—I will have to look carefully at the words he used about how it will work—which is an augmentation of one that is part of the agreement with the Scottish Government for the legislative consent Motion will not do. It will not do for all the reasons that the noble Lord, Lord Kerr, and others identified. Although it may have a degree of prospectiveness about it, the problem is that it would be more likely to be retrospective. However, even if it is prospective, it does not have the element of accountability about it that your Lordships’ House is looking for and the Opposition are looking for.
I could have been convinced by some offer that was more solid than the one that was put to me, but I am not persuaded by that offer. I am wary of the devolved taxation equivalent of an impact assessment report, which I think is what he also offered me. A statement by a Minister saying that these criteria are met will not be enough for this purpose. I am afraid that it will probably come to some Minister, whose bona fides I am not questioning in advance, saying, “The criteria that we set are met by this”, or “I assure the House”, or whatever. That will not quite be enough for this.
Even if I have not, and we cannot, find in this Bill a mechanism that gives the accountability that I—and, I sense, your Lordships’ House—would like to see, the Minister did not address at all the point about how we get the Scottish Parliament and Scottish Government to buy into and own these criteria. Experience tells us that that is essential. Even when they do buy into and own criteria or legislation by legislative consent Motions, they deny it later on, or they say that it was not enough, or they ask for more. That I can live with. We can debate that. That is politics. But we surely need to get the Scottish Government and Scottish Parliament to own the whole of this process. We cannot allow them the deniability of saying, “That was your Command Paper. It’s not got our imprimatur on it. We did not agree to it. What we agreed to is in the Act, so we are not having these London-based criteria imposed on us”. We all know this script. They need to own them. If they want these powers—and they do—then they need to own the whole package. I do not know whether the Minister or any of his colleagues have applied their minds to how to get the Scottish Parliament and Scottish Government to own this package, but there is a very simple way: get them to pass a legislative consent Motion for an Act of Parliament that includes them.
How, therefore, given that I am not convinced by the Minister’s arguments, do I propose that we deal this issue? Members of the House will be relieved to know that I do not intend to divide the House in the afternoon of the day before Recess. I do not intend to do so for this reason: that the Bill has another stage to go and I wish to continue talking to Ministers about this issue. I sense a growing coalition across the House for a revision and amendment of the Bill which could attract wide support and I have not had the opportunity to build that coalition. I am being open. I want an opportunity to try to build a coalition for an amendment that will find favour with your Lordships’ House and have some possibility of being passed.
I make one more offer to the Minister—I do not expect him to respond now—to engage to see whether we can find a way of amending the Bill or of obtaining from the Government a bankable undertaking that is owned by the Government and the Scottish Government. I cannot see what that can possibly be other than this amendment. I shall not be leaving the country during the Recess and I will make myself available for any discussions—if I can, I will bring members of our own Treasury team with me—to see whether we can find a way around this issue and, if we can, I shall be happy to commend it to the House.
Lord Maclennan of Rogart
If the noble Lord does not get the response that he is seeking and he is right in divining that others are seeking, then he should not rely on his intuition about coalition around his point. I think he can have the assurance that a number of noble Lords on these Benches are of the same mind as he is.
Lord Browne of Ladyton
I am extremely grateful to the noble Lord for his contribution. I know where the key to success in a vote in this House lies: it is on those Benches. I am fortified in my resolve to try to improve this legislation.
The noble and learned Lord, Lord Wallace of Tankerness, will confirm that at all stages of this process I have endeavoured to be constructive and helpful. This provision has to be improved, although not necessarily directly in the way I have proposed. I am happy to be flexible but my suggestion passes my only test: it improves the ability of the Bill to contribute to the betterment of the Scottish people while, at the same time, strengthening the union. It gives us an argument that is owned across the union which we can deploy in the future.
I say to the noble Lord, Lord Lyell, that, as far as the amendment is concerned, this parrot is very much alive; this parrot is not no more and it is not deceased. It may not fly today, but it is very much alive.
I gave the Minister advice about Scottish football on a previous occasion. He scorned it, and he got himself into an argument in the House about Scottish football which he could have avoided. I give him this advice now: do not tempt the noble Lord, Lord Forsyth, to go away and come up with better criteria. I am almost certain that we will return to this issue at Third Reading. I beg leave to withdraw the amendment.
The Earl of Caithness
My Lords, I return to the problem that we discussed earlier when we were on Amendment 16. I have read and reread Amendment 29 and wonder whether my noble friend can help me. Where does it tie in the Scottish Executive in the way in which the noble Lord, Lord Browne of Ladyton, mentioned in his amendment, which was supported by my noble friend Lord Sanderson of Bowden and the point that I raised? I listened to my noble friend with great care when he replied on Amendment 16 but I still cannot find the bit in Amendment 29 that will satisfy me.
Lord Browne of Ladyton
My Lords, I welcome the amendment. It is entirely consistent with a request that I have made repeatedly for reports on current progress in relation to the transfer of these powers. I hope that in anticipation of Third Reading, Ministers will take some time over the Recess to prepare at least an outline of a report on progress for the transfer of these powers to the Scottish Parliament. I say that for the reasons that I have articulated. I have a belief, based on information that I have received, that the Scottish Government and their Civil Service are ill prepared for the transfer of these powers. I should like to be reassured that we are transferring powers to people who are building the competence to use them appropriately.
In response to the point made and repeated by the noble Earl, Lord Caithness, about the buy-in of Scottish Ministers, there is a reference in subsection (2) of the proposed new clause to an obligation on Scottish Ministers to report in a similar way to the Secretary of State. However, it is deficient in the sense that it does not satisfy the desire on these Benches, which is apparently shared across the House, that the Scottish Government and the Scottish Parliament should buy in more fully to the whole package of transferring taxation powers for the reason that I gave before. I repeat that some time in the future they may be tested against that package and they should own it. That can be done only if they agree. If they do not agree, it will be interesting to hear their explanation, but I suspect that if it is put to them they will find it so impossible to agree that they will agree.
The reports, which we understand from the Government will be used to answer some of the points that I made earlier, do not in their present form answer those points, although I accept entirely what the Minister said about the Government’s intention to augment the reports in the way he suggested. I do not doubt that for a moment, so he should be clear that I accept entirely that that undertaking can be guaranteed to be delivered. I sense that it will not be enough but I do not want to go back to Amendment 16. I welcome the proposed new clause as it stands and as far as it goes, but it does not go far enough.
Lord McFall of Alcluith
Under the proposed new clause as far as it goes, I was taken with the Minister’s comment about taxation being an instrument of redistribution, as Calman noted. If that is the case, we need a deeper appreciation of the transfer of these powers. It is not just about money but how that money is spent. There is no association between tax levels and growth. As a Scottish citizen, I want to ensure that money from income tax in Scotland is spent properly and that I will benefit as a result.
As far as concerns subsection (5)(d) of the proposed new clause, it is important that the issue is looked at. As was suggested, Scottish public services are inefficient even by miserable UK standards. The Scottish health service, for example, spends 19 per cent more per person, and we have 30 per cent more doctors, yet in many cases—such as cancer survival levels for women—there are worse outcomes. This is a very important issue. If we are going to look at income tax levels, we should have reports from the Scottish and UK Parliaments to ensure that we spend our money in the proper way—as an instrument of redistribution, as Calman suggested.
Lord Browne of Ladyton
My Lords, I rise to support the amendments to which the noble Lord has spoken, and to speak to the amendments standing in my name and that of my noble and learned friend Lord Boyd of Duncansby. On his behalf, I should first tender his apologies for not being here to speak. Unfortunately, he has commitments that he could not avoid. He would have wanted to be here. He has put a lot of time and investment into this part of the Bill and this issue. He has given me an exhaustive seminar on it and I shall try to do my best to support the amendments which he would otherwise have spoken to.
Could we also offer our congratulations to the noble and learned Lord the Advocate-General for Scotland on achieving this level of agreement and the solution to what was a highly charged political problem in Scotland for a period of time? When it blew up, it was not obvious that it could have been resolved in this way. The extent to which the Minister has found agreement and a resolution to this problem lies in the words of the noble and learned Lord, Lord McCluskey, before he left. He said that he was 98 per cent satisfied.
In all the years I have known him, I cannot imagine the noble and learned Lord being 98 per cent satisfied in relation to almost any argument ever put before him. If he is satisfied to that extent, it is a measure of the achievement of the Minister and his officials. From observing this closely, I know that my noble and learned colleague has put a significant amount of his time and effort into trying to resolve this. I do not intend to speak to any of the amendments that the Minister has spoken to, with the exception of Amendment 52, because the two amendments proposed by the Opposition are attached to their Amendment 52. If noble Lords bear with me, even at this late hour I will try to cover this in a few minutes.
Amendment 52 is a wholly new provision which comes out of the agreement with the Scottish Government, paving the way for the legislative consent Motion. It establishes a review of the new procedures to take place,
“as soon as practicable after the end of three years”.
In principle, we see no difficulty with the concept of a review. It has much to commend it and the Minister set out some of those reasons. However, it is clear from the Written Statement from the Secretary of State, dated 21 March, that the agreement for this review stems from the dispute about whether there should be a requirement for certification of an issue by the High Court as one that raises a point of law of general public importance. Can I say how pleased we are that the Government have resisted the request from the Scottish Government to include certification as part of the package of agreement for the LCM? My noble and learned friend Lord Boyd set out the reasons for our approach in Committee and I do not intend to repeat them here.
More importantly, the clear tenor of the debate in Committee was against certification as a prerequisite for an appeal to the Supreme Court. Those who were present at that debate will recall the cogent and persuasive reasons advanced by the noble and learned Lords, Lord Cullen of Whitekirk and Lord Cameron of Lochbroom, who is in his place today. These were about why such an innovation should not now be made, restricting the right in cases involving the determination of issues of fundamental human rights. Had certification now been included in the agreement it would have been against the wishes of this House.
We appreciate, however, that Scottish Ministers wish to have a commitment to a review of the operation of the new procedures, with the issue of certification being directly addressed in that process. The noble and learned Lord has already alluded to this. If a review is to be meaningful, it must have sufficient evidence to inform it, and it must take into account all sides of the debate. This is where our concerns come in and why we have put down two amendments to Amendment 52.
First, we suggest that the review should be conducted after five years, rather than the three years specified in the amendment. We do not think that three years is long enough for a meaningful review. The Supreme Court took over the jurisdiction of the Judicial Committee of the Privy Council on devolution issues in October 2009. In the approximately two and a half years since then there have been around 12 cases from Scotland. However, seven of those were what have become known as “sons of Cadder”, arising from the case of Cadder on access to a solicitor before a police interview. These seven cases came before the court in two batches as they raised substantially the same issues, so the reality is that of 12 cases, eight arose out of the same issue; namely, access to a lawyer. Our concern is that in conducting a review after only three years there will be insufficient material and an insufficient spread of cases for a proper judgment to be made on the efficacy of the new arrangements. This is a serious issue as the person conducting the review may feel obliged to make findings and recommendations where it would be more prudent to await further information.
Secondly, although this is not in the Bill, the Written Statement made by the Secretary of State states that the review will be chaired by the Lord Justice General, whoever she or he may be at the time. The present Lord Justice General has been making the case for certification on behalf of the Scottish judiciary. We do not, of course, know the identity of the new Lord Justice General, nor do we know what view he or she may form on the evidence. Whoever it is, it seems inevitable that he or she will have been part of the debate on certification among the Scottish judiciary. It is improbable that the new Lord Justice General will not emerge from the existing Scottish judges. Moreover, he or she will have presided over a court whose judgments will have been subject to review by the Supreme Court. His or her opinions may have been overturned and he or she may have been criticised by the Supreme Court in the course of those judgments. This person is then being asked to stand back and conduct an impartial review of the mechanism by which such cases get from his or her court to the Supreme Court. Fundamentally, we do not think this is right. With the best will in the world, even the best jurist will find such a task very difficult and, indeed, may not even welcome such an imposition.
The issue of certification for the Scottish judiciary has arisen out of concerns raised by it about the effect of the Supreme Court on the criminal law in Scotland, and we believe that the new procedures in this Bill go a long way to addressing such concerns. Scottish judges have also seen this as a matter of respect. They point to the fact that in appeals to the Supreme Court from ordinary criminal proceedings from courts in England and Wales and Northern Ireland certification is required from the courts below. They consider that not to require such a certification procedure in appeals from the High Court of Justiciary raises the issue of consistency of approach. However, as the Minister pointed out in Committee, the introduction of certification in the other jurisdictions was, if I remember correctly, to stop what might turn out to be a flood of criminal cases coming from the courts below to the House of Lords. The purpose was wholly different from the issues of respect and consistency that were raised by Scottish judges.
Our amendment addresses these issues. Of course it is right that there should be a senator of the College of Justice intimately involved in the review, but that surely has to be balanced by a view from the Supreme Court itself. That is why we wish to see a commitment that a justice of the Supreme Court will be a member of the review panel to bring the other perspective. I hope that the noble and learned Lord, Lord McCluskey, will forgive me for reporting a private conversation I had with him in the precincts of your Lordships’ Chamber before he left. He suggested, and I agree with him, that it would probably be better if that justice of the Supreme Court was not one of the Scottish justices appointed to the Supreme Court. We on these Benches would very much prefer to see a chairman of the review who had no present involvement with either court, but we know the agreement that has already been reached and, although we think it is wrong, we are prepared to respect it.
I have one question for the Minister, but I hope he will respond to the points that I have raised. I know that he was aware of them in advance because I know there was communication between him and my noble and learned friend. Will the Minister give a commitment that the new Lord Justice General, whoever that might be, will be consulted on whether he or she thinks it is right for him or her to chair this review? If the new Lord Justice General considers that it might be difficult to do that task because of the points that I raised, will the Minister give an assurance that that view will be respected? Will he then work with Scottish Ministers to find a mutually acceptable alternative?
Lord Cameron of Lochbroom
My Lords, I pay tribute to the Minister for having listened so obviously to what has been said in all quarters—not least in your Lordships’ House—about these matters. The proposals in these amendments seem entirely reasonable and appropriate, particularly in the light of certain remarks that my noble and learned friend Lord Cullen and I made about the place of the Supreme Court in our judicial system.
Having listened to the noble Lord, Lord Browne of Ladyton, I have sympathy with the view that he has expressed, and indeed the amendment proposed, that the review should be carried out after a longer period than that proposed in Amendment 52. It seems that this is an important review, although apparently not one that will be repeated; therefore, the importance of its conclusions must be based upon a sufficient period to give those conclusions some justifiable basis.
Although the matter of the chairmanship and membership of the review does not appear in the amendment, there is substance in what the noble Lord, Lord Browne, has said about both the chairmanship and the inclusion of one of the Justices of the Supreme Court. I therefore support what he has said in that regard. Otherwise, I pay tribute to the noble and learned Lord for what he has achieved in bringing these amendments forward.