Scotland Bill

Lord Forsyth of Drumlean Excerpts

Thursday 2nd February 2012 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Browne, and my noble friend Lord Shrewsbury for giving us an opportunity to look at this part of the Bill that specifically relates to devolution in respect of air weapons.

The amendment of the noble Lord, Lord Browne, seeks to remove the exception the Government have made in the Scotland Bill to the devolution of powers to license air weapons. Clause 11 provides that the Secretary of State retains the powers to make rules under Section 53 of the Firearms Act 1968 to specify weapons as “specially dangerous” and so require a firearms certificate, and also to make orders under Section 1(4) of the Firearms (Amendment) Act 1988 to prohibit specially dangerous weapons.

The contributions of the noble Lord and my noble friend indicated that this is a complex issue and I take the general point about the legislation being in different Acts. I therefore fully recognise why the noble Lord wishes to explore fully why the Government are not devolving the powers that are part of the exception in Clause 11. This was discussed in another place. In many respects, the issue turns on the way in which the Firearms Acts are drafted and the need to ensure that all specially dangerous weapons are dealt with on a consistent basis across the United Kingdom. Like the noble Lord, we should perhaps go back to the report of the Calman commission, which recommended that only air weapons should be devolved—although we know that there are those who would wish devolution to be extended to all firearms. I know that other members of the Calman commission are present. I do not remember us having any particular discussion of subcategories of air weapons that might be described as specially dangerous.

The Government believe that it would be confusing and potentially damaging to create a situation in which much of the body of firearms legislation in Scotland could differ substantially from that in England and Wales. Calman, too, said that there could be,

“serious disadvantages in having different, uncoordinated policies”,

and therefore does not recommend devolving generally the subject of the Firearms Acts. That being so, we need to ensure that there is a common framework for the most lethal weapons across Great Britain, and this will include what are known as Section 1 firearms, such as hunting rifles, which require a firearms certificate issued by the local police.

In accepting the Calman recommendation that air weapons should be devolved, we looked to do that by adding an exception to Section B4 in Schedule 5 to the Scotland Act 1998, which currently reserves firearms by reference to the subject matter of the Firearms Acts 1968 to 1997. Those Acts cover regulation of the manufacture, possession, handling, purchase or acquisition, sale, distribution and transfer of firearms. They distinguish between different types of firearms in certain respects and make different provision for different types, including air weapons. Air weapons are defined in the current legislation in accordance with Section 1(3)(b) of the Firearms Act 1968. This refers to an air rifle, air gun or air pistol which has not been declared to be specially dangerous by rules made by the Secretary of State under Section 53 of the Act, and is not a prohibited weapon.

I claim no expertise or experience whatever in firearms, but I understand that currently, air pistols generating a muzzle energy in excess of six foot pounds and other air weapons generating a muzzle energy in excess of 12 foot pounds have been declared to be specially dangerous for these purposes. This means in practice that an air weapon which has been declared as specially dangerous becomes subject to the requirement to hold and abide by a firearms certificate. It therefore ceases in practical terms to be treated as an air weapon under Section 1(3)(b) of the Firearms Act 1968. Control of these types of weapon need to remain reserved, which is why the power to make rules under Section 53 of the 1968 Act will remain those of the Secretary of State.

I reassure noble Lords that we are not looking to restrict the way in which the Scottish Parliament exercises its legislative competence in respect of air weapons. I acknowledge that there is a drafting complexity in Clause 11, but in practice the Scottish Parliament will be able to regulate air weapons in the way in which it chooses.

[Lord Forsyth of Drumlean]

My noble and learned friend simply stated that the regulation of those more powerful weapons needed to be reserved. Can he explain why?

[Lord Wallace of Tankerness]

Because that takes them into a category for which licensing is required. We took the view, as did Calman, that there are categories of firearms which should not be devolved, those which might be described as more powerful, more dangerous, and that the particular air weapons which are the subject of our debate fall into that category and have more in common with firearms covered by other parts of the Firearms Acts than they do with other air weapons. It is because of their potential lethality. That is why there seemed to be a distinction between them and air weapons which are the subject of devolution.

[Lord Forsyth of Drumlean]

I am genuinely trying to understand this. If the Scottish Parliament was to have power to regulate those “less dangerous” air weapons, how would it do that without having a licensing scheme? If my noble and learned friend’s argument is that they are required to be part of a licensing scheme, I do not understand the logic of it. If the Government’s view is that the Scottish Parliament ought to have this responsibility, is the Minister saying that it can only have responsibility for weapons if they are not very dangerous? It seems to be a little illogical to me.

[Lord Wallace of Tankerness]

With respect, it is not illogical at all. A point I will raise when I respond to my noble friend Lord Shrewsbury is that this is devolution of a power. How the Scottish Parliament chooses to exercise that power, if at all, is a matter for the Scottish Parliament. I am trying to find the relevant part of the Calman commission report, which dealt not with the point about especially dangerous air weapons but with the more general point about firearms.

The commission indicated that the UK Government of the day had,

“argued that any ban on a firearm which it is currently legal to possess would need to be underpinned by a compensation scheme. It argues that where such firearms are currently unregulated”—

which is the specific case for air guns—

“it would be difficult to prevent them being legally and cheaply acquired in one jurisdiction and passed off for compensation in another which had introduced a ban. This is not an argument against devolution itself as much as it is a caution to a devolved administration making difficult policy decisions it believes to be in the best interests of its citizens. Whilst there would undoubtedly be practical considerations and potential difficulties in any divergence of approach to firearms control they do not preclude the development of robust mechanisms for managing cross-border problems, information sharing and good communications”.

The Calman commission did not think that the case had been made for the devolution of firearms generally. The point is that especially dangerous air weapons are, in effect, firearms, licensed across Britain on the basis of what I think is widely recognised as a strict, world-leading regime. The Government do not wish to undermine that strict framework for the most dangerous weapons. Air guns that are the subject of devolution in this clause are not subject, at the moment, to what might be described as that strict licensing regime. That distinction is made, which is why the exception to the devolution of air weapons is being made in this clause.

[Lord Forsyth of Drumlean]

I am grateful to my noble friend. Perhaps it might be better if I made a speech rather than asked questions, but I am struggling to understand the logic here. The Minister has read from the report by the Calman commission, which was chaired by Ken Calman, for whom I have considerable respect; he was my Chief Medical Officer for Scotland. I am not sure that he is actually an expert on firearms regulation. The Minister’s quotation from the report seems to be saying that this would be very difficult to administer and very expensive. That is not an argument against giving Scotland the power, because it might not use it. However, not giving it the power creates the kind of uncertainty that my noble friend Lord Shrewsbury talked about.

[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.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am not sure that that is the case. However, I think my noble friend is right that the power in the Bill does not relate to more powerful weapons. Especially dangerous air weapons are already licensed. We are providing Scottish Ministers with a power to put in place a licensing regime, as the noble Lord suggested, for air weapons, which are not regulated under the current GB framework. A very simple distinction has been made between weapons that are currently regulated and those that are not, and the devolution of power relates to those that are currently regulated.

[Lord Forsyth of Drumlean]

I am sorry; it is very bad to interrupt my noble and learned friend so often but I just do not understand this. I can understand the concept—the wish—to devolve to the Scottish Parliament the power to regulate firearms, and the wish to give to the Scottish Parliament the power to regulate air weapons. However, I do not understand the concept that the Scottish Parliament should be able to deal with only some air weapons and not others. That will create monumental confusion and we could end up with a system where the less dangerous weapons are subject to more control than the most dangerous weapons, which would be absolutely absurd. How would we avoid that?

[Lord Wallace of Tankerness]

I think that my noble friend is seeing difficulties where they do not really exist. The clear view was taken by the Calman commission, by the previous Labour Administration and by the present Government that firearms as a whole should not be devolved. We are trying to explain—and I apologise to your Lordships if I am not doing so sufficiently well—that the weapons that under Clause 11 are not being devolved fall more closely into the category of firearms than unregulated air weapons, which are being devolved. Therefore, we are maintaining a consistency with regard to weapons that are currently the subject of a licensing regime vis-à-vis weapons that are not currently the subject of a strict licensing regime.

My noble friend says that that could lead to a stricter licensing regime. I have to concede that that is technically possible if the Scottish Parliament sees fit to do that, although I would have thought that some of the compelling arguments made by my noble friend Lord Shrewsbury may well mean that a bit of common sense will prevail when it shapes these powers. That is the essence of devolution. If a power relating to air weapons is devolved, as long as it is consistent within the confines of the Scotland Act it is a question of how that power is exercised.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I seem to recall going over some details during the Calman commission. It must happen already when shooting parties come from other parts of the European Union. The trouble is that I cannot remember what answer the Calman commission got. I had better not mislead my noble friend and I shall write to him giving him chapter and verse.

[Lord Forsyth of Drumlean]

My Lords, I am still not persuaded by my noble and learned friend. Perhaps I am getting old and cynical. He served on the Calman commission and it is interesting that none of the other members of the Calman commission has felt able to contribute to this interesting debate and explain how they came to this conclusion.

One remembers the genesis of the Calman commission. It was an initiative led by the Labour Party, which the other unionist parties joined in with in order to prevent the case for independence and the nationalists being able to gain control of the Scottish Parliament. In that sense, it fell at the first fence. The idea was to look at what further powers beyond this Scotland Act could be devolved to Scotland. If I may address my noble and learned friend as a member of the Calman commission, one has the sense that he was scrambling around trying to think of things which could be devolved to the Scottish Parliament.

Something that worried me about my noble and learned friend's response to my noble friend Lord Shrewsbury was that he kept relying on what the Calman commission recommended. The commission made recommendations to the Government. It was the responsibility of the Government to consider them, decide what made sense and put forward their proposals. We are not talking here about the Calman commission's proposals; this is a government proposal. I respectfully suggest to my noble and learned friend that as a Minister in the Government he should be able to defend it.

I cannot for the life of me understand why it would be desirable to have another licensing system for air guns in parallel with the one that exists south of the border. I can see the argument. The noble Lord, Lord Browne, rightly pointed to some horrible and tragic cases that occurred in Scotland. However, there is nothing unique about Scotland that means that these cases could not also happen in England. The corollary is that the Government should look at the licensing of air weapons throughout the United Kingdom. If one is going to pass laws—as my noble friend Lord Shrewsbury pointed out—one ought to be conscious of how one is going to enforce them. If we get to a position where air weapons are either illegal in Scotland or are subject to a different regulatory regime from that which exists in England, how will that be enforced at the border? Will we have guys on the A74 checking whether the precise nature of a weapon meets the regulations that have been passed by the Scottish Parliament?

Faced with these challenges, my noble and learned friend resorted to the argument that, “We are only devolving the power. The noble Lord, Lord Forsyth, is putting forward arguments about what might occur if the Parliament chose to exercise that power”. However, this Parliament should not create the legislative possibility of creating great confusion and difficulty in the administration of firearms legislation. The clause would be better if it gave the Scottish Parliament the power to deal with all weapons. If my noble and learned friend's argument is that some of these weapons are firearms, it becomes very difficult to see as one goes down this road how one would defend not giving the Scottish Parliament complete authority over all firearms, in which case we would have different regimes on different sides of the border—and that would make controlling firearms almost impossible. We seem to be creating a difficulty.

My noble and learned friend accused me of seeing problems where they did not exist. I do not see why the current regime would not be capable of dealing with the concern about air weapons, and I can see how this clause will create great confusion and difficulty. As my noble friend Lord Shrewsbury pointed out, air weapons do not have serial numbers. It is asking a lot of a policeman to look at an air weapon and decide which category it is in. This looks like the product of a political fix. There was great public concern about air weapons; it was a big issue. The Calman commission said, “We must do something about air weapons”. It looked at the practicalities and found that they were very difficult, so we ended up with a camel designed by a committee.

I urge my noble and learned friend to look at this again. It is a very serious matter and I do not believe that the Bill addresses the practicalities involved. I support the noble Earl’s very modest amendment, which does not seek to attack—as I have just done—the basis of the legislation in the clause.

[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.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I welcome this clause, and indeed when discussing the Scotland Bill offstage with my noble friend, he has tried to persuade me that it is a great Bill because it would bring back control of Antarctica to the Westminster Government, although “control of Antarctica” is perhaps putting it too strongly. Of course, another week has gone by and the Scottish Parliament has still not debated the report of its own committee, which suggests that legislative consent should not be given to this clause. So as my noble friend the Duke of Montrose has pointed out, it is difficult to surmise why the committee might now wish to retain responsibilities in respect of Antarctica, and the previous committee quite sensibly took the view that Antarctica should be a matter for the Westminster Government and the Foreign Office. As far as I know, Donald Trump has no plans to build a leisure facility in Antarctica, so I cannot imagine why the First Minister would think that his writ should run to Antarctica.

As my noble friend indicated, I had the pleasure of going to Antarctica a year ago, and it really is a spiritual experience. It is quite amazing. It is the only part of the planet that is completely unspoiled and the only example of an international treaty that I can think of which has actually worked. I think that that treaty is now up for renegotiation and renewal and it is absolutely clear that this clause is required because it should be obvious to everyone involved in those negotiations what the British interest is. I hope that the British interest will rest with ensuring that Antarctica remains a place where scientific endeavour and experiment can be carried out and which is protected from exploitation.

[Lord Foulkes of Cumnock]

My Lords, the noble Lord is being far too modest in saying that he went on an expedition to Antarctica. He climbed Mount Vinson, the highest mountain there, and he sent many of us dispatches which we received with great interest. He also raised hundreds of thousands of pounds for charity, and I think he should be commended for all of that.

[Noble Lords]

Hear, hear!

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord. I think that he and I need to be careful because we will soon be appearing in the nat blogs as an example of an unholy alliance. I have suggested to my noble friend that we should form a roadshow and go around Scotland extolling the virtues of the union. The only other explanation I could think of for why the Scottish Government are now pressing for some control over Antarctica is that perhaps they think it might be a good idea to pass regulations keeping me there on ice for the winter in order to avoid open debate. I am most grateful to the noble Lord, and I thank him for the cheque he sent towards the fund for Marie Curie Cancer Care.

I support this clause because it is entirely sensible. I suspect that it was an oversight because there is a very serious job to be done. While I was in Antarctica I met some scientists who were drilling holes in order to measure movement in the ice-cap, but one of the problems they faced was that they kept on hitting gas and oil. There are considerable mineral resources in Antarctica and I hope that they will stay there for a long time so that Antarctica is preserved. I hope that the British Government will take very seriously their responsibilities in this regard.

My noble friend the Duke of Montrose also mentioned the Scott expedition and the centenary of Scott’s arrival at the South Pole—only to discover that Amundsen had beaten him there. We all celebrate the courage that Scott and his party showed in their disastrous attempt to get back to safety from the South Pole.

So I welcome the clause. Of all the clauses in the Bill, it is the one that I can endorse with most enthusiasm. I am most grateful to my noble friend for ensuring that the interests of Antarctica are in good hands.

[The Earl of Mar and Kellie]

My Lords, does the clause in any way inhibit Scottish universities’ polar research? My noble friend has been to the Antarctic. In 1902, William Speirs Bruce led the Scottish national Antarctic expedition in the steam yacht, “Scotia”, its research ship. The “Discovery” was built in Dundee. Speirs Bruce also explored the Arctic, and one can still find the remains of Brucehaven in Spitsbergen. Perhaps I may ask a question that is vaguely similar to one asked by the noble Lord, Lord Forsyth. Are we trying to prevent Scots universities exploring or researching in Antarctica but not in the Arctic?