Scotland: Independence

Lord Foulkes of Cumnock Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am pleased once again to follow the noble Lord, Lord Forsyth. I will not follow his line of argument, although I agree with almost all of it. I am also not going to use this opportunity to advocate once again the case for a constitutional commission or convention because that case has increasingly been accepted. My noble friend Lord Richard and a number of others indicated that today.

No, I will spend the whole of my speech on one thing and one thing alone: paying personal tribute to someone I have known for almost 40 years, someone whose cunning and chutzpah are unrivalled in British politics, someone who—by his skill, ability and yes, his courage—has turned himself from a little-known Royal Bank of Scotland oil economist into the First Minister of Scotland with a vice-like grip on the SNP, the Scottish Parliament and all that is happening in Scotland today. You may wonder why I will do this. The reason is very simple. Over the past decade, no other person has had more influence on what is happening in Scotland —and the United Kingdom as far as constitutional matters are concerned—than Alex Salmond. Yes, he has a great team—Kevin Pringle, Stephen Noon and many others—but he brought these clever people in and has made sure that he has this control. His combination of cunning and gall has outfoxed politicians in both Holyrood and Westminster, resulting in this referendum that could break up the United Kingdom—as someone else said earlier, the most successful economic union the world has ever known.

Let me elaborate on the astonishing way Salmond has done this. First, in the election of 2007 the SNP won only one more seat than Labour. They were a minority Government and they won that last seat by 40 votes. Yet even before that, Salmond had a plan to announce himself, as soon as he had one more seat, as the First Minister of Scotland. He had hired a helicopter to fly him to the gardens of Prestonfield House Hotel, where he had set up in presidential style a podium to announce that he was going to be the First Minister. There was no discussion, as we had at the last general election in the United Kingdom; no Queen to go to, to say, “Can I get together with other parties and form a coalition?” There was nothing like that at all. In fact, if you read Five Days in May by my noble friend Lord Adonis, you will see that people in our party were worried after the last election that someone else might “do a Salmond”, as it was called. When he did that our party—for instance, my noble friend Lord McConnell —was so shell-shocked, and other parties so taken aback, that they accepted it. Therefore, through chutzpah alone, Salmond announced himself as First Minister of Scotland; and all of us in other parties were left open-mouthed.

We come then to the Edinburgh agreement, on which my noble and learned friend Lord Morris did a wonderful demolition job. I will add to that: why did winning the Holyrood election, getting 44% of the vote, give the mandate to Alex Salmond to have the agreement with Cameron that there was going to be a referendum? We, the Labour Party, controlled the majority of Westminster seats in Scotland. It did not get 50% of the vote; he assumed that there was a mandate and Cameron accepted that. We all accepted it; I say to my noble and learned friend Lord Morris that we should not just blame the Prime Minister. That means that we ended up with Salmond choosing the question—all right, it was amended slightly by the Electoral Commission—choosing the date and choosing the electorate. He had total control over what was happening. He did that through his cunning. That is why we must admire him; that is why I pay a personal tribute to him.

Look at what is happening now. The first point I want the Government, all noble Lords in this Chamber and everyone in the Chamber down the Corridor to learn is that, once again, Alex Salmond is threatening to do exactly the same thing with this draft constitution. As my noble friend Lord Robertson said, it includes the question of getting rid of Trident. What does that have to do with the constitution? It includes things such as vital social services. What does that have to do with the constitution? Why is he drafting a constitution? It is because in the—I hope—unlikely event of a yes vote, he wants his constitution to be the agenda: he wants to set the agenda. He is already saying that the Holyrood Parliament will decide all these things. As the Minister has indicated on many occasions, constitutional affairs are a reserved area. Yet if Alex Salmond has trumped us on two or three occasions previously, is he not going to do it again, unless we are ready to make sure that he does not, in the unlikely event of a yes vote?

I will take no more of noble Lords’ time except to say that we must not underestimate Alex Salmond. I think that we are on course to victory—we have the right arguments—but we have to be very careful indeed. One of the things said by the noble Lord, Lord Forsyth, which I agree with, is that united we stand, divided we fall. Over the next 85 days we have to put every effort into this campaign. We must not underestimate Alex Salmond, because his cunning, chutzpah, skill, courage and gambling instinct could undermine us once again. We need to be united to make sure that he does not use those to break up this United Kingdom.

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[Lord Cormack (Con)]

My Lords, I feel that this is rather the graveyard slot. Those who have delivered their speeches have departed to refresh themselves, while a few are waiting to enlighten us. Having listened to every single speech, as has my noble and learned friend Lord Wallace of Tankerness, to whom I pay a real tribute for his stamina and resilience, I might be tempted to go and have a little refreshment later myself.

Whether I am driving along the lovely lanes of Lincolnshire, as I was last week, or driving in Scotland, where I spent the whole of the war as a young boy, growing up—

[Lord Foulkes of Cumnock]

Which war?

[Lord Cormack]

Not the First World War, like the noble Lord opposite; I cannot claim to rival his longevity. But whether I am driving there or in Scotland, I feel, in the words of Walter Scott, already quoted by the noble Lord, Lord Purvis:

“This is my own, my native land!”.

I am British. My family comes originally from Scotland. My elder son, known to the noble Lord, Lord Purvis, is settled in Scotland and I do not think will ever leave, and my eldest grandchild will have a vote on 18 September. I deeply regret that I shall not have one. But I very much hope that she, along with the other enfranchised 16 year-olds, will vote a resounding no, and I am confident that she will. She spent some time with us a fortnight ago and we were talking about this. In her school in Edinburgh, they had had a poll of all the girls, and 90% had voted no. In the boys’ school next door, she was slightly disappointed that it was only 88%. That gave me some real encouragement. Like the noble and learned Lord, Lord Morris of Aberavon, I regretted the way in which Mr Salmond wound the Prime Minister around his finger in getting the 16 year-old vote, but I had some reassurance from what she told me. When I asked her why, she said, “Because we don’t want to cut off our opportunities”—and that, in a sense, is what it is really about.

I have talked before in this House about the difference being between remaining in a Great Britain or in a little Scotland. Of course, Scotland could be independent and go it alone, but we would be deprived—and I believe that my friends and family in Scotland would be deprived—if they did that. I profoundly hope, as I think virtually everybody who has spoken in this debate hopes, that they will not.

Only 9.1% of the population of the United Kingdom lives in Scotland. I will not repeat all the lists of Prime Ministers, economists, scientists and writers who have been referred to this afternoon. But if any part of any country has punched above its weight, Scotland, which is a nation, has punched above its weight in the United Kingdom—and I want it to continue to do so.

In 1984, I had a very interesting experience during the long Summer Recess from the other place. I spent a semester at the University of Austin in Texas. It was the time of the presidential election and a number of the cars that were driving around had a little sticker on the back that said, “Secede”. I said to my Texas host, “Some of them talk as if they mean it”. “Oh”, he said, “that’s just the heart expressing itself—the head knows that it would be total madness”.

Much as I respect those who have a different point of view, I hope that those who are contemplating voting yes in September, and still more those who have not yet made up their mind, will reflect on what a great country this is—and it is a great country because of the contribution from Scotland, which is way beyond its percentage of the population. I very much hope that there will be a resounding vote on 18 September, and that the people of Scotland will say that, yes, they want to remain part of the United Kingdom. I do not want my granddaughter to become a citizen in a foreign land, and she does not want her cousins—the children of my other son, who live in London—to be foreigners, with different passports.

Somebody talked about borders. I had the great good fortune to be the chairman of the Northern Ireland Affairs Select Committee in the last Parliament, and I saw the difficulties created by a border there. Unless you have absolute similarity between taxes and revenues, what it does among other things is to encourage organised crime, which is a very real cross-border problem between the Republic and Northern Ireland. I rejoice at the settlement, and I am not one of those who feels deeply unhappy about Her Majesty receiving Mr McGuinness; we have made enormous progress. But the fact is that there are two countries on one island and there is a border, and that creates problems. We do not want to have that here.

We have to recognise that we are exceptionally fortunate. My noble friend Lord Forsyth of Drumlean, and the noble Lord, Lord Foulkes, whom I regard very much as a friend in the context of this and many other issues, pointed to the brilliance of Alex Salmond. I referred to that before in this House. But we need to have robust debate, and what he has been saying is very misleading. We have had many examples, quoted during the last three and a half hours. Salmond’s approach really is that of eating the cake and having it, to put the phrase the right way round. I have often thought, particularly over the past few weeks, of the reputed remark of the great conductor Richter to the third flute, “Your damned nonsense can I stand twice or once, but sometimes always, by God, never”. The people of Scotland are being misled. As my noble friend Lord Forsyth said, they are being asked to take a leap into the dark. It is a step into the unknown.

Of course, many have talked about changes that will come about. Like my noble friend Lord Forsyth, I was against devolution but that is all over now and we have to make it work, and make it work even better than it has done—of course we have. However, it would be a constitutional and a political tragedy if we were all in this United Kingdom plunged into the uncertainty that a yes vote would create. I devoutly hope and pray that it will be a no vote and an emphatic one, and that we can more warmly embrace each other across the border. I hope that it will not become an international border, and that we can continue to recognise the enormous importance that Scotland has and the enormous contribution that it makes to this United Kingdom of ours. Long may that United Kingdom flourish.

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[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part. It has been a remarkable debate in the quality of the contributions. Indeed, as in some of our earlier debates on this subject, we have had a range of very thoughtful contributions from noble Lords on all sides of the House, from all parts of the United Kingdom—Scotland, Wales, Northern Ireland, England and, indeed, Cornwall. That has enriched our debate.

One of the most important things that came through was the number of people who talked of their own experience. The noble Lord, Lord Soley, talked about working in Scotland as well as in England. The noble Lord, Lord Judd, talked about his family and what makes him what he is—a product of this United Kingdom. My noble friend Lord Dobbs said that he was a full-blooded Englishman but nevertheless has a great affection for and affinity with what we have achieved as a United Kingdom.

My noble friends Lord Glasgow and Lord Purvis and the noble Lord, Lord Kerr of Kinlochard, said that what they so much regret about the referendum debate is almost having to choose between being British and Scottish, whereas most of us think we can be British as well as Scottish—and indeed, European—whatever part of Scotland we come from. The noble Lord, Lord McConnell, talked about the strength and diversity within the United Kingdom. In spite—or perhaps because—of that diversity, we are a United Kingdom. We can celebrate the diversity and our unity.

I particularly thank my noble friend Lord Lang of Monkton for his reprise of the recommendations of the Constitution Committee’s very valuable report on the constitutional implications of the referendum and, specifically, of a yes vote. The Constitution Committee of your Lordships’ House has a well deserved reputation for full and detailed examination of key constitutional debates that we face in the UK. This latest report discussed in today’s debate is no different.

As I indicated in my opening speech, we will offer a full written response in advance of the due date of 16 July. The noble Lord, Lord McConnell, asked about that. I understood that the noble and learned Lord, Lord Morris, might have thought that that was a response to the McKay commission, so I make it clear that it is a response to the report that we are debating today.

I will offer a few reflections on behalf of the Government because the report rightly highlights that the constitutional stakes could not be higher. A yes vote in September would have a profound impact not just on Scotland but on people right across the United Kingdom. Those implications would be far-reaching and would extend far beyond constitutional points—to the economy, our place in the world, and our relationships with one another across these islands.

However, as the committee notes, at its very core the implications are set out in law; and it would be to the law that we would have to turn. Successive Governments have been very clear that it is for people in Scotland to decide if they wish to remain a part of the United Kingdom, or if they wish to leave and go it alone. That is why I say to the noble and learned Lord, Lord Morris of Aberavon, who indicated that the Welsh were not involved in the agreement signed in Edinburgh in October 2012, that it has been the view of successive Governments that if the people of Scotland wish to leave they should not be held in the union against their will. That was the background to the agreement.

However, as my noble friend Lord Purvis pointed out, it is one of the strengths of the union that, because we have established the rule of law and the basis of democracy, we are confident that these matters will be determined through the ballot box and not through means by which other countries in history have sought to claim their independence.

The referendum on 18 September will determine this question. I say to my noble friends Lord Shipley and Lord Caithness that, in a debate where both sides are almost invariably at odds with each other, the one thing that the two Governments have never disputed is that there should be only one referendum. It is important to recognise that if Scotland votes yes on 18 September it will be not only for Christmas, as one noble Lord said in his contribution, but decisive. The agreement reached was intended to be decisive and would be respected. The noble Lord, Lord McFall, asked whether that was set down when it was signed up to. In fact both Governments have said that it would be a decisive referendum that would be respected by both sides. Therefore one would expect that a no vote would be respected by those who have campaigned for a yes vote.

However, as the committee notes at paragraphs 38 to 43, if there is a yes vote, legislation delivered through this Parliament will be required to take Scotland out of the United Kingdom and to establish a new, separate state. I shall come later to the point raised by the noble and learned Lord, Lord Hope. The committee recognised that the extent and scope of that legislation may be very limited. Many subsequent orders will be required but the legislation itself could be quite limited. Much will depend on the agreement reached.

As I have said in your Lordships’ House on a number of previous occasions, these negotiations cannot begin in advance of the referendum as we must not pre-empt the outcome of the negotiations. To do so would require the United Kingdom Government to put themselves in the shoes of a Government of the continuing United Kingdom minus Scotland. It would require the United Kingdom to act in the interests of only one part of the United Kingdom rather than the whole of the United Kingdom. To do so in advance of a referendum would be to deliver exactly what the nationalists want—a United Kingdom that excludes Scottish interests and acts only in the interests of England, Wales and Northern Ireland. That is the reality of independence: it means that there will be two separate states, and where you have two separate states you have two separate sets of interests. Sometimes they will be mutual, sometimes not.

Later in the committee’s report the question of who should make up the negotiating team for the rest of the United Kingdom was raised. As someone who has represented a Scottish constituency in the United Kingdom Parliament as well as in the Scottish Parliament, and as someone who will continue to be resident in Scotland after the referendum, whatever the result, I find the report’s recommendation on the role of Scottish representatives and the exclusion of those who would have a conflict interest very compelling.

I turn now to the points highlighted by the committee, including representation of Scotland within the UK Parliament and by the UK Government in the period between a referendum which endorsed a yes vote and independence day. In paragraphs 56 to 58 of the report the committee raises the risk of constitutional limbo. This issue was raised in his introductory speech by my noble friend Lord Lang, by the noble Lord, Lord Kerr, and by the noble and learned Lord, Lord Cullen of Whitekirk. I have looked back at the context in which my right honourable friend the Secretary of State for Scotland answered that question. It was in the context of negotiation, whereas, as I have just said, you cannot have negotiations where there are different sides of the argument.

However, to make it clear, during any negotiations Scotland would still be part of the United Kingdom and public services would be delivered as they are now. This means that the Scottish Government would continue to be responsible for health, education, justice, rural affairs, housing and transport in Scotland as well as the other devolved matters, and the United Kingdom Government would continue to be responsible for reserved matters. I do not think that the noble and learned Lord expected the Electoral Commission statement to contain the whole list of Schedule 5. However, the key ones are there and there is nothing sinister about the ones that were mentioned or not mentioned. The United Kingdom Government would continue to be responsible for reserved matters, including defence, security, foreign affairs and the constitution, plus pensions, benefits and most tax powers up to the date when Scotland became an independent state.

During the negotiations, the two Governments would continue to discuss any policies of either that affect the responsibilities of the other. Equally clear is the reality that a vote to leave the United Kingdom is a vote to leave its institutions, including the Houses of Parliament. The timing of any changes would have to be settled in the event of a vote for independence.

I sincerely hope that there is a clear endorsement—a view expressed by all noble Lords with the exception of the noble Lord, Lord Elis-Thomas—of Scotland’s place in the United Kingdom. If there is not, that is when the negotiations will begin. I suspect that they will take as long as necessary to ensure that both sides are content, rather than fitting neatly into a timetable laid down by the Scottish Government. I hope that that answers the question raised by noble friend Lord MacGregor. The noble Lord, Lord Robertson, with his experience of negotiating seven NATO entries, indicated that that was not by any means an easy process. As the noble Lord, Lord Kerr of Kinlochard, pointed out, as did my noble friend Lord Garel-Jones, negotiation of entry into the European Union is by no means a straightforward matter either.

As people have said before, it is the deal in any negotiation that is important and not the date. With regard to the negotiations themselves, as the Constitution Committee report notes, the starting point for them is predetermined by the legal position that underpins all of this debate. The first of our Scotland analysis papers dealt with the legal and constitutional position of Scotland within the United Kingdom and the implications of independence. This was the right place to start, because it is from the law that political realities and experiences will flow. The legal reality is clear: the rest of the UK would be the continuator state in the event of independence. Scotland would leave and become a new successor state. I welcome the committee’s clear endorsement of this position in the first of its conclusions.

This key legal point has a number of ramifications. The United Kingdom would continue to be a member of all the international bodies to which it is currently party: the European Union, permanent membership of the Security Council of the United Nations, NATO, the G7 and the G20. As a new successor state, Scotland would need to apply for and seek new terms of membership. Those negotiations cannot in turn be prejudged in the way that the Scottish Government and advocates of independence seek. As has been pointed out in this debate, 28 member states of the European Union, each of which will wish to protect and represent the interests of its citizens, will have to sign up to these negotiations. Many of these states have had to accept terms of EU membership from which the Scottish Government expect to be exempt.

In the previous debate I did not wish to seem dismissive of the points made by the noble Lord, Lord Kerr of Kinlochard. I hugely respect the experience that he brings to these matters, but it would not be right to speculate on how negotiations could work. Previously I perhaps raised an eyebrow more with the idea that the Scottish Government would find it acceptable for the United Kingdom Government to negotiate on their behalf: I just think that you need to say that there could be some political issues around that, but I certainly do not dismiss lightly what the noble Lord, with his experience, says.

As I noted at the start of today’s debate, the Government will respond in full to the committee’s recommendations, ahead of the response deadline. I hope that I have given some indication of our likely response to some of the key points made by the committee and repeated during this debate, and a clear sense of the approach that the United Kingdom Government are taking on these issues.

I turn to some of the other points that have been raised. In reference to the Edinburgh agreement I indicated that it is one wherein the United Kingdom and Scottish Governments agreed to work together to ensure that the referendum on Scottish independence could take place on a legal basis. I think that the noble Lord, Lord Foulkes, thought that we had been tricked into it. Noble Lords might want to think about this for a moment. With the SNP having won—with a manifesto commitment to a referendum—a majority of seats in the Scottish Parliament, in which the noble Lord, Lord Robertson, and I have some responsibility for the electoral system used, neither of us or many others thinking that any party could win a majority, it is not unreasonable that the referendum was facilitated. I rather think that Mr Alex Salmond, with the cunning wiliness referred to by the noble Lord, Lord Foulkes, hoped that the United Kingdom Government would say no and give him ever more of a grievance.

[Lord Foulkes of Cumnock]

A 45% vote on a 50% turnout is not an overwhelming mandate. I am not saying it is overwhelming in one direction or the other but it is arguable that it did not provide the mandate and there could have been further discussions. I also said that in the discussions the UK Government seem to have conceded on every issue—issue by issue.

[Lord Wallace of Tankerness]

My Lords, I do not accept that. In a PR election, to win an outright majority of seats—the political reality was that there was an expectation that if we had sought to thwart that, it would have played into their hands. There was the possibility that they would have run their own referendum, which we would have argued was not legal, and we would have been embroiled in a constitutional mire. The fact is, there is a binary question, yes/no, but I rather think that some in the nationalist cause would have liked to have muddied the waters with a third question and allowed us all the time to negotiate among ourselves what the third option would be, thus taking our eye off the ball and not tackling the main issue, which is whether Scotland should be an independent country.

The noble Lord, Lord Birt, made important points about the BBC. As the committee indicates, that is one of the institutions that would belong to the continuing state. He highlighted the detriment that Scotland leaving the UK would cause the BBC: 10% less funding for BBC programmes and for the rest of the UK. He also pointed out, importantly, that of course the BBC is independent of government and any negotiations it had with the Scottish broadcasting service would be akin to the kinds of negotiations that I am sure it has with many other national broadcasting companies throughout Europe and the rest of the world. Unlimited access to BBC services in an independent Scotland would cost money, and it is naive and indeed misleading for the Scottish Government to pretend that everything would just go on as before.

The noble Baroness, Lady Adams, asked about English universities. Access for Scottish students would be the same as for those from other European Union countries. The other thing that is slightly odd is the Scottish Government trying to pretend that English students coming to Scottish universities could be treated differently from those from other European Union countries.

[Lord Wallace of Tankerness]

Indeed, if Scotland was a member of the European Union, they would be treated the same as everyone else from there; if it was not, they would be treated the same as international students from India or wherever. Of course, if Scotland were to be part of the European Union—a point that I think the noble Lord, Lord Foulkes, is about to latch on to—the idea that you could allow free tuition for students from every other European Union country and charge English students does not have any sound basis. It is difficult to say that you want to enter into a social union with other parts of the United Kingdom but one of the first things you do is charge its students when you are not charging anyone else.

[Lord Foulkes of Cumnock]

I know it is difficult but it has already been said. Mr Salmond has said that they would not get free tuition—that English, Welsh and Northern Irish students would not be treated as other European students. That is what we are facing. We are doing everything by the book. We are treating these matters honourably. People on the other side of the discussion are not.

[Lord Wallace of Tankerness]

My Lords, there is such a thing as the European Court of Justice, and anyone who attempted to fly in the face of what most people would think of as accepted European Union law may find that the law caught up with them.

My noble friend Lord Cormack and the noble Baroness, Lady Adams, talked about their grandchildren and how they do not wish to see opportunities cut off and cannot understand why we would want to build barriers. That has been reflected in many schools, where there have been substantial no votes. It shows that in an era when young people can communicate so easily, when the communication barriers have been broken down because of modern technology, the idea that you would start erecting barriers is something that many of them just cannot comprehend. That is a great strength for our union as we look forward.

My noble friend Lord Caithness asked about the draft Bill. I confess that we have not yet done any analysis of it. My noble friend Lord Lester of Herne Hill, however, was telling me the other day that he has already identified two or three inconsistencies with the European Convention on Human Rights, and if my noble friend has identified them, that probably means that they are right. It is not a very good start for a constitution if it seems to fall foul of the European Convention on Human Rights.

The noble and learned Lord, Lord Hope of Craighead, raised the question about whether it could be a Section 30 order. It is clear that independence cannot just be asserted. The terms of an agreement reached between the representative of an independent Scotland and a continuing UK would have to be that: an agreement. I have already indicated what the position would be with regard to the period between the date of a referendum if there were to be a yes vote and the date of independence, and all the responsibilities that the United Kingdom Government would have. The quote that I gave was a direct quote from the statement given jointly by both Governments to the Electoral Commission, so the Scottish Government themselves have signed up to that.

The noble and learned Lord, Lord Cullen, made a point about how long it took to get that agreement, and that was just an agreement to make a statement. That might put into context how long it might take to negotiate an independence settlement. If Scotland chooses to leave the United Kingdom, it must be prepared to do so whatever the terms, because the terms cannot be known in advance.

As the report of the Constitution Committee indicates, there could be possible difficulties with a Section 30 order if it was challenged in the courts that the use of the Section 30 order had gone beyond what Parliament intended an order to do—if it were bringing in independence when in fact that was clearly never the intention of Parliament.

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[Lord Wallace of Tankerness]

My Lords, of course the Executive are answerable to Parliament. That is self-evident, as we well know. It is impossible to speculate on this because we do not actually know what the terms would be. I am just confirming that there would have to be legislation. I cannot speculate about what would be in the legislation because I have no clue what kind of negotiations there would be or what agreement would be reached. To try to speculate would go against the grain of what we have said about there being no pre-commitment or pre-negotiation.

[Lord Foulkes of Cumnock]

I am sorry to keep everyone but this is a very crucial matter—as the noble Lord, Lord Forsyth, indicated. The noble and learned Lord, Lord Wallace, has said that the Government have not yet considered fully the terms of the interim so-called constitution drafted by the Scottish Government. Perhaps he could tell us today that the Government will look at that, and report back to this House on it, and then we can have a further debate. We really must consider this. As I said in my speech, we are getting bounced into one thing after another. We should be damned sure that we are not bounced into this one.

[Lord Wallace of Tankerness]

My Lords, we certainly shall look at it, although whether we can have a debate between now and the House rising I just do not know. However, I hope we are not confusing two things. Of course, a constitution would be a matter for the independent Scotland. It would post-date independence. I think the noble and learned Lord, Lord Hope, talked about an interim Bill, and that was what was being discussed.