Scotland Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, if I may plagiarise Monty Python:

“And now for something completely different”.

I am going to be positive and come up with some new ideas, and try not to be repetitive. Many people here will recall that at the opening of the Scottish Parliament in 1999 the late, great Donald Dewar read the first words from the then Scotland Act:

“There shall be a Scottish Parliament”.

He went on to say, “I like that”—and we all felt much the same. But even then, with only one chamber in the Scottish Parliament, questions arose about whether there would be sufficient checks and balances.

The people who raised these questions were reassured by many other people, including from my own party and my own side, and told not to worry about it. First, we were told that that the electoral system they had devised would ensure that no party would have an overall majority—well, we know what happened to that. Secondly, we were told that the committees would have a new role and that they would be the checks to control the overweening and overpowerful Executive. But that has not been the case, as many people here will know. In fact, the irony is that in this Parliament at Westminster, the committees in both Houses have been far more powerful in controlling the Executive, challenging and questioning them, whichever Government are in power, than they have been at Holyrood. It was also agreed at the time that the electoral system would be reviewed after two elections if it did not appear to be working in the right way—but that review has not happened.

After the last election, we have effectively in Scotland a one-party state. That controversial comment has been made by a number of people and challenged by the SNP, because of course there are other parties in the Scottish Parliament, but it has an overall majority which it uses powerfully, coherently and effectively. It has decided to choose one of its number as the Presiding Officer but could have chosen someone from another party. There has never been a Labour Presiding Officer, for example, in the Scottish Parliament. When we were the largest party at first in 1999, we allowed—in fact, we encouraged and moved—the noble Lord, Lord Steel, to become Presiding Officer in the Scottish Parliament, much to the chagrin of my good and noble friend Lord Maxton.

The majority on committees is exercised powerfully. I do not know of one committee report that has been critical of the Scottish Government. The Justice Committee got nearest but was still far away.

Civil society—I had better not mention the Law Society of Scotland on this occasion—is increasingly in thrall to the one party in control at Holyrood, using, alternately, the carrot and the stick. As a result of that, there have been a number of mistakes, and the Scottish Parliament has legislated in ways that have caused tremendous problems, which I would argue would not have happened if there had been either pre-legislative scrutiny or a second look by a second chamber. Police reform is one example, and there are several examples in education, for example in the current universities Bill, which is creating huge problems already.

I will mention two specific examples, since, as we saw in the last few debates, we have so many lawyers in the House. One was the misguided attempt to abandon corroboration in Scots law—my noble and learned friend Lord McCluskey played a large part in raising concerns about this issue—which would not have happened if there had been either pre-legislative scrutiny or checks by a second chamber.

The other is the Act that is supposed to deal with sectarianism in Scottish football. As a number of Members will know, I am a great enthusiast for a particular football team, Heart of Midlothian Football Club. Unfortunately, there has been sectarianism in Scotland over time. The Government brought in the Offensive Behaviour at Football and Threatening Communications (Scotland) Act, which has been criticised not just by Celtic and Rangers but by a number of people. I read in today’s Daily Record that even Phil Boswell, an SNP MP—who is under a bit of criticism for other things at the moment—said his own party’s law on this was a “major blunder”. I would argue that that major blunder would not have happened if we had had the second chamber that I am proposing.

The second Chamber here has asked the other Chamber—the House of Commons—the government majority in it and, thereby, the Government to think again on a number of things. We asked them to think again on onshore wind after they arbitrarily cut the grants a year early. We are currently looking at votes at 16 and 17 and asking them to think again—today they were doing that and thinking again about it. Most notably, we asked them to think again about tax credit cuts, and thankfully the Chancellor did think again and decided to abandon the proposals. He would not have done that if we had not challenged the measure in the House of Lords.

This brings me to my proposals. Some people, including some of my own friends, have suggested that this is yet another ad hoc change to our constitution. I agree with that and am only doing it because that is the way we do things at the moment. I repeat what I have said on so many occasions in this House: I am in favour of a UK constitutional convention to look at things in a comprehensive way. But we are not at that position yet, as the Government have not accepted it. Everyone else—every other party and much of civil society—has accepted it but the Government have not yet been persuaded to accept it, so we have to look at this bit by bit.

I am suggesting a senate of modest size, with 46 members. I have given the number of members that would be elected in each of the eight regions of Scotland, based on the current electorate, which brings us to a total of 46. I am grateful to the Legislation Office for help in drafting this amendment. One of its suggestions was that the Boundary Commission for Scotland should be included and be given the power to look at the regions and the number of members returned from each region. I think that is right.

I suggest that it should be elected by a different system from the present Scottish Parliament, and I suggest single transferable vote. That is not to get the support of the Liberal Democrats—I have the support of the noble Baroness, Lady Suttie, who sends her apologies for not being able to be here today—but because it is the right thing to do, not in every case but in this particular one.

Also, I suggest the election should take place at the same time as that for the Scottish Parliament. One of the other criticisms I have had about my proposal is the cost of it. The cost would be reduced if the elections were carried out at the same time. There have been suggestions from my noble friend Lord Maxton and others that it might be better to have it in between elections to the Scottish Parliament, and that is something I would be willing to look at.

The senate I propose would be able to carry out pre-legislative scrutiny and review legislation. It would have debates as we do on topics of particular interest and committees with the power to call Ministers to give evidence. As I say, the one criticism I have had is that of cost. That is why the size is relatively modest. I do not necessarily think that its members need to be full-time, although that is something again that can be looked at.

We can find an existing building in which they could meet. I suggest that a wonderful place for them to meet would be the Old Royal High School, which was converted for our use as a Scottish Parliament had we voted for that in 1979. Many Members here who were Members of the other place will have been at meetings of the Scottish Grand Committee there and it worked extremely well. It looks like a parliament and senate. One noble friend who apologises for having to leave early—he expected this debate to take place a bit earlier but reckoned without some of the fights that took place opposite—suggested that there is a suitable building in Glasgow that might be used for this purpose. Certainly, that could be looked at.

In coming forward with this proposal, I looked at other countries—

[Lord Forsyth of Drumlean (Con)]

The noble Lord twice mentioned cost but has not told us how much this would cost.

[Lord Foulkes of Cumnock]

The noble Lord knows the price of everything but the value of nothing. The value of this is that it would be an extension of democracy. It would be a very small price to pay for that.

I have looked at other countries. In Ireland, all the main political parties two years ago proposed to get rid of their Senate. The Members of the Dáil wanted complete control and they held a referendum.

[Lord Forsyth of Drumlean]

Does the noble Lord not know the cost?

[Lord Foulkes of Cumnock]

This is the moving of an amendment in Committee. We have Report and later stages coming up, and by that time, if the noble Lord is still here and able to ask a question, I am sure he will get an answer. The cost depends on a whole variety of things and at this stage he can shake his head and put his finger up—we all know what a cynic he is. The new Minister has found out what a damned nuisance he is, as well. He is a thorn in the flesh of the Government but I will certainly not let him be a thorn in my flesh. He will get his answer in good time. As I said earlier, he wants to know the price of everything but knows the value of very little.

I looked at other countries. I looked at Ireland and in the referendum there two years ago all the main parties wanted rid of the Senate. Incidentally, all the opinion polls in the run-up to the referendum said that it would be abolished. The opinion polls in Ireland are no more accurate than they are in the United Kingdom or in Scotland. The people of Ireland decided to keep their senate; they wanted to have control over the powerful Executive of the Government in Ireland, which I was very pleased to see.

I was talking to the noble Lord, Lord Alderdice, yesterday, and he told me that in Northern Ireland from 1921 to 1975 a senate operated very effectively at Stormont, which is something that can be looked at as well. The other interesting thing, on which I conclude, because I am trying not to take up too much time after a lot of time was taken up earlier, are the other areas of devolved legislatures. Every state of the United States has two Chambers; in Australia, all of them except for Queensland have two Chambers. If it is good enough for New South Wales and Massachusetts to have that kind of democracy, and be able to pay for it, it is good enough for Scotland. This will be a great extension of democracy in Scotland; it will make sure that the kind of decisions that I mentioned, which have caused real problems because they have not been thought through, are unlikely to happen again, and I hope that it will be given sympathetic consideration by Members on all sides of this House today.

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[Lord Maxton]

That is a very good point. I look forward to my noble friend Lady Adams tabling an amendment to my noble friend’s amendment on Report. It is an interesting question: why should you have the same numbers in the Scottish Parliament if you have a senate as well?

I support what my noble friend is proposing but we have to look very carefully at it. I hope to be able to move amendments on Report.

[Lord Forsyth of Drumlean (Con)]

I have to say I am astonished that the noble Lord, Lord Foulkes, should move this amendment at this stage of the Bill. He has spent the past two years arguing against piecemeal constitutional reform and has sat uncharacteristically silent throughout these proceedings, no doubt because he believes in what the Bill is trying to do, which is to allow the Scottish Parliament to determine its own rules and provisions, including on composition and the rest. But here he is, wanting to impose an entirely new body upon it as a second Chamber, ignoring the difficulties that this House has had with the other place in resolving the issue of what you do, if you have two elected Houses, to avoid gridlock and squabbles over powers. Quite frankly, if one were going to create a second Chamber for the Scottish Parliament, which I would have thought was entirely a matter for the Scottish Parliament, it would need to be done in a way that addressed these problems. On the basis of the performance of this House, I should think that that would take at least 100 years and still not be resolved. I find it extraordinary that, with so much to do in the Bill, we should be discussing an issue of this kind.

Also, if the answer to a problem is more politicians, you have certainly asked the wrong question, particularly in the current climate. In Scotland we are overrun with politicians: we have 129 in the Scottish Parliament and 59 MPs, and our constituents have no idea who is responsible for what or who their representatives are. Add to that some people called senators, and I think that the noble Lord will complete the task, already pretty well achieved, of having the electorate treat Members of Parliament with a certain degree of contempt and as a laughing stock.

[Lord Maxton]

I have to ask the Lord whether he actually believed in being a politician, democratically elected by his constituents. At the end of the day, that is what a politician is: a democratically elected representative of the people. I would not say that more is always better, but it does not necessarily follow that more is necessarily bad.

[Lord Forsyth of Drumlean]

To deal with the point about politicians, after I left the House of Commons in 1997—or was asked to leave by the electorate—I went to work for Flemings as a banker, and was very proud to call myself a banker. Then, when the financial crisis came along, things got so bad that I started calling myself a politician again. Then we had the expenses scandal so I decided to call myself a company director. Perhaps the noble Lord does not realise that there is a problem, not just in Scotland or in Britain but in France, America and elsewhere—you can see that in some of the eccentric choices that are being made now by the electorate—which comes from a complete contempt for the political class. At this time of all times, when money is short—and by the way, we have not seen the fiscal framework, but when the Bill goes through, money will be very short indeed in the Scottish Parliament, when it substitutes a Barnett grant for a tax base—the notion that they could find money to have an extra 40-plus politicians plus all the attendant special advisers, the machinery and the rest, is utterly ridiculous. Therefore I hope that we will not spend very much time discussing this amendment, which is a complete distraction and totally wrong.

However, the noble Lord is perfectly correct to say that there is a problem with the governance of the Scottish Parliament. Can I just gently point out who was responsible for this? When the noble Lord cited all these examples of failures of policy—I could add considerably more—where was the Labour Party? Where was the opposition in the Scottish Parliament standing up to all of this? Therefore the fault did not lie in the lack of a second Chamber but in the opposition to the SNP and in the case of my own party, which gave it the ability to be in government by supporting it in government, some criticism could be made. However, this is not an argument for a second Chamber but for having vigorous Members of the Scottish Parliament, who I hope will be elected in May, doing the job they are required to do.

As regards numbers in the proposals there is already great confusion—we will come on to this later in the Bill—about the boundaries of constituencies and responsibilities. I was very struck by a poll by ITN, when it discovered that some huge number of the Scottish electorate—90%, I think—had absolutely no idea what powers were going to be conveyed by the Scotland Bill on the Scottish Parliament. When asked, a similarly higher percentage—well over 50%—were of the opinion that whatever the powers were, they did not go far enough. Therefore there is a job to do for the Scottish Parliament in engaging with the electorate and a job for the opposition. It is true that they are failing in a wide range of policy matters, but a House of lairds—a bunch of people calling themselves senators—will not resolve this problem. Fortunately, however, it is not a problem for this House but for the Scottish Parliament.

[Lord McCluskey (CB)]

My Lords, I may be brief. I made points in my Second Reading speech which the noble Lord, Lord Lyell, has referred to. We are all agreed about one thing: there is a problem. Whether the unelected House of Lords is the right place to start giving a lead in that matter is something entirely different. I would not fashion the problem in precisely the words that the noble Lord, Lord Foulkes, has mentioned—the one-party state. I think I have previously used the expression that was made well known by Lord Hailsham, “an elective dictatorship”, because in substance that is what you have in the Scottish Parliament at the moment. The Scottish National Party, for its own reasons, whips its MPs so effectively that there is no dissent, and for reasons that I mentioned at Second Reading, the weakness of the opposition is palpable. There are good people and, by the way, one or two good committees as well, but the committees of which I have experience, which are largely to do with justice, are not satisfactory.

I therefore agree with the noble Lord, Lord Maxton, that there is a problem with having an elected House. The great thing about the House of Lords is that it is not elected, therefore we are not answerable to constituents, and because very few of us are left with ambition, having reached an age and a state in our careers when ambition is no longer available to us, we can say what we think. However, that is not a popular idea in the country generally.

I am not sure that I am totally committed to the idea of an elected second Chamber but there must be some system. One forgets that many of the institutions that are extremely powerful in shaping the political debate and the political results in this country are not elected at all. I mention, for example, the press, which is said to be free and independent. It may be free, and it is independent of government, but in no sense is it elected by anyone. I get no say in who appoints the editors of the Times or the Sun or, for that matter, the Daily Mail, and they have considerably more influence than this House over what happens in this country, but they are not elected either.

This may be just a start but I feel that there is a duty on those of us who share the idea that there is a real problem to publicise that problem in Scotland and to try to persuade the Scottish electorate and the people generally that it has to be tackled, although perhaps not in this way. However, I certainly support the idea that “something must be done”—an expression which I hesitate to use because of its antecedents.

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Moved by

[Lord Forsyth of Drumlean]

26: After Clause 5, insert the following new Clause—
“Interval between elections
The Scottish Parliament may not make provision to extend the interval between ordinary general elections as specified in section 2 of the Scotland Act 1998 (ordinary general elections).”

[Lord Forsyth of Drumlean]

My Lords, I am conscious of the late hour but I would like to move Amendment 26. As we have already discussed during the course of the evening, there is no second Chamber in the Scottish Parliament. This House has an important constitutional role in preventing the House of Commons from extending its own life. Although the circumstances in which that might happen are hard to consider, it is an important check and balance.

This amendment seeks to make it quite clear that the Scottish Parliament cannot extend the interval between ordinary general elections and therefore prolong its own life under any circumstances. It would have been possible of course to make that subject to the agreement of the Westminster Parliament—the British Parliament—but I think that an absolute prohibition on extending the life is the most appropriate way to proceed. I beg to move.

[Lord Keen of Elie]

My Lords, I note the reasoning behind the amendment proposed by the noble Lord, Lord Forsyth. At present, Section 2 of the Scotland Act 1998 provides that general elections are to be held every four years. That power is to be devolved to the Scottish Parliament, but it will not be without limitation. The Scottish Parliament cannot pass legislation that is not compliant with the European Convention on Human Rights. Pursuant to Article 3 of the First Protocol to the Convention, there is a requirement for free and fair elections at reasonable intervals. The Smith commission agreement proposes that it should be for the Scottish Parliament to determine those reasonable intervals. We consider that that is appropriate and in accordance with the recommendations of the agreement, which the Bill seeks to implement. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Forsyth of Drumlean]

I have to say to my noble and learned friend that I do not think that that is a very satisfactory response. There was talk earlier in the evening about a one-party state and the dominance of the Parliament by one party. The precedent is long established that it is not possible for the other place to extend the life of a Parliament. Were it to try to do so, this House has an important role, which would prevent that from happening except in the most exceptional circumstances. Perhaps I have misunderstood what my noble and learned friend said, but he appeared to say that it is a matter for the Scottish Parliament to decide what the timing is between elections, and that cannot be right.

I am not suggesting for a moment that the Scottish Parliament might decide to do this under its current regime and Administration but I rather anticipated in putting down this amendment that my noble and learned friend would tell me that there was some other protection. Frankly, for this Government of all Governments to say that we should rely on the European Convention on Human Rights is ironic—to put it mildly. I hope that my noble friend will at least undertake to give this further consideration before we return to later stages of the Bill.

[Lord McAvoy]

My Lords, on this occasion we cannot support the proposal in the amendment of the noble Lord, Lord Forsyth. Elections to the Scottish Parliament will not be able to be held on the same day as the UK general election or a European parliamentary election. Under the Scotland Act 1998, an election must take place on the first Thursday in May in the fourth calendar year. However, Scottish elections are fully devolved matters. When elections are held is a decision for the Scottish Government, other than the restrictions I highlighted. Unfortunately for the noble Lord—

[Lord Forsyth of Drumlean]

Is the noble Lord really saying that it could possibly be acceptable for a devolved legislature, perhaps dominated by one party, to have the power, having won an election, to decide that the next election would not be for seven years? That would be a completely unacceptable use of the powers of a devolved Administration. Why is he so opposed to having an amendment to the legislation to eliminate that possibility?

[Lord McAvoy]

My Lords, when you have devolution, you have devolution. The noble Lord poses a potential situation that is totally unrealistic. I do not think it would happen. Any behaviour like that from a devolved Assembly anywhere in the United Kingdom would be punished by that electorate. Devolution is devolution. I do not want to get contentious at this time of night but I think the noble Lord’s attitude is coloured by a continuing non-acceptance of the principle of devolution. You cannot devolve power and then try to dictate to that Parliament what to do—it is not feasible. I do not see it happening anywhere in the United Kingdom, through any devolved Assembly.

[Lord Forsyth of Drumlean]

The noble Lord will recall that we already extended the life of the Scottish Parliament from four to five years, I think on one or even two occasions.

[Lord McAvoy]

I really do not think that is a fair comparison.

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[Lord Keen of Elie]

I first apologise to the noble Lord, Lord McAvoy. I had not appreciated that he intended to speak in the context of this proposed amendment and intervened too early. For that I apologise.

I will just add that the Smith commission agreement determined, on the basis of the consensus of five political parties, that elections to the Scottish Parliament should be devolved, and that the timing of those elections should be devolved to the Scottish Parliament. We must regard the Smith commission agreement as the product of a responsible negotiation by responsible political parties, and we must regard the Scottish Parliament as a responsible devolved body. We have no right to do otherwise, if I might respectfully say so. Given the existing backstop in terms of convention law pursuant to which, under Article 3 of Protocol 1, there is a requirement for free and fair elections at reasonable intervals, in my submission that appears an appropriate way forward.

On the matter of extending the life of the Parliament, as raised by my noble friend Lord Forsyth, an Order in Council under Section 30 in October 2015 allowed the Scottish Parliament to set the 2016 election at more than four years, extending it to five years. I am not aware of another occasion.

[Lord Forsyth of Drumlean]

On my noble and learned friend’s reference to the European convention, what constitutes a reasonable interval? Would five or six years constitute a reasonable interval?

[Lord Keen of Elie]

That would be a matter for the Scottish Parliament to determine, and is subject to review. If it gets that wrong, any legislation that it passes is not law, pursuant to Section 29 of the Scotland Act 1998.

[Lord Forsyth of Drumlean]

I beg leave to withdraw my amendment.

Amendment 26 withdrawn.

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[Lord Forsyth of Drumlean]

Before the noble Lord sits down, could he deal with the reasons why he is not content to rest on the European Convention on Human Rights?

[Lord Stephen]

I was as interested as the noble Lord, Lord Forsyth, to hear that that was the justification for his amendment being rejected. I would say that he has a case for his amendment, but there have been times when a limited and appropriate extension of the term of the Scottish Parliament has been useful. However, if that happens in future, I do not see why it should not be by a special majority to show that there is solid and widespread support for the proposal from all Members of the Scottish Parliament, or as many as make up a supermajority.

[Lord Forsyth of Drumlean]

Again, before he sits down, could the noble Lord confirm that it is not because he has always been opposed to devolution that he is taking this view?

[Lord Stephen]

At this late hour, I am happy to confirm almost anything to the noble Lord.

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Moved by

[Lord Forsyth of Drumlean]

36: Clause 11, page 12, line 29, leave out from “unless” to end of line 31 and insert “, having been approved at the final stage by the Scottish Parliament, it is then approved by a resolution of each House of the Parliament of the United Kingdom”

[Lord Forsyth of Drumlean]

My Lords, the hour is late, but I will say just a few words in respect of this amendment, which, basically, ensures that changes to the franchise, the constituencies and the number of MSPs—which under the provisions of the Bill require a two-thirds majority—have also to be approved at Westminster. I am not a great believer in opinion polls; as we discovered at the general election, they can be quite wrong. However, it is not inconceivable that two-thirds of the Scottish Parliament at the forthcoming elections could be composed of people who believe that Scotland would be better off independent. If that were to happen, and this Parliament, which is the United Kingdom Parliament, had created circumstances in which it was possible for fundamental changes to be made to the franchise, the constituencies and the number of MSPs, that would be a matter of very considerable concern. Personally, I do not like the idea of two-thirds supermajorities; it is an unfortunate intrusion into our constitutional affairs. It has knock-on implications for other devolved institutions and for Westminster, but of course the Smith commission has recommended it, so it would appear that we have to go along with it. The amendment would provide a belt-and-braces safeguard to ensure that key issues such as the franchise, the constituencies and the number of MSPs were approved at Westminster, having also had a two-thirds majority in the Scottish Parliament. I beg to move.

[Lord Keen of Elie]

My Lords, Clause 11 requires certain types of electoral legislation to be passed by a two-thirds majority, or supermajority, of the Scottish Parliament. Paragraph 27 of the Smith commission agreement states in terms that this is:

“To provide an adequate check on Scottish Parliament legislation”,

in these areas. An “adequate check” was the consensus of the five political parties which took part in the Smith commission and which arrived at the Smith Commission agreement.

The Government consider that the supermajority requirement provides an appropriate check on this type of Scottish Parliament legislation. Indeed, to approve this amendment would be to give with one hand and then take away with the other so far as the Scottish Parliament is concerned. It would not be in accordance with the spirit of the Smith commission agreement, let alone with the terms of paragraph 27. In these circumstances, I urge my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

My noble and learned friend’s only argument has been, once again, to rest on the Smith commission. He keeps saying that it had the support of all five political parties. I am not aware of the members of the Conservative Party being consulted at all on the Smith commission proposals; nor am I aware of any discussion on those matters in the other place or in this place. What happened was that people nominated by the political parties got together and produced a report. It really is quite misleading to keep saying that this was endorsed by all the political parties. That may have been true of the Liberal Democrats or other parties but it certainly was not true of the Conservative Party. Furthermore, this was all done at an enormous pace—it was all agreed in eight weeks. As we have heard from the noble and learned Lord, Lord Hope, the noble Lord, Lord Smith, himself has not sought to argue that he has endorsed this Bill in terms of the provisions of the Smith commission.

[Lord Hope of Craighead]

The noble Lord said that he is not to be taken as approving the precise terms of the Bill as a lawyer. He is not a lawyer. He emphasised that he is a layman, and he speaks as a layman when he endorses what is in the Bill. If it were possible to find ways in which the Bill could be improved in relation to constitutional principles or whatever else, he would be in favour of that because that is not his field and he is aware that there could be room for improvement in those areas. What he emphasised was, “Don’t confuse me with a lawyer. I am a layman and I give it support as a layman”. However, if there were respectable arguments from lawyers, he would give way to them and improve the Bill if that was a way of making better progress.

[Lord Forsyth of Drumlean]

I am most grateful to the noble and learned Lord for making that clarification. It is important that effective checks are in place. This whole process has been carried out swiftly and without much in the way of discussion either among the membership of the political parties or indeed within the House of Commons. Although four days were allocated to Committee, many of these issues were not considered because of the process by which amendments are dealt with. However, I can sense that folk do not wish me to detain the Committee on this matter and there will be further opportunities to come back to it, so I beg leave to withdraw the amendment.

Amendment 36 withdrawn.