Scotland Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 8th December 2015 Lords Chamber

Moved by

[Lord Foulkes of Cumnock]

21: After Clause 2, insert the following new Clause—
“Scottish Senate
(1) There shall be a Scottish Senate which shall be the second chamber of the Scottish Parliament.
(2) The Scottish Senate shall consist of 46 members, to be elected using the Single Transferable Vote system in each region of Scotland, in elections to be held on the same day as the elections for the Scottish Parliament.
(3) Each electoral region shall return the following number of Members—
(a) Central Region: 5 members;(b) Glasgow: 6 members;(c) Highlands and Islands: 4 members;(d) Lothian: 7 members;(e) Mid Scotland & Fife: 5 members;(f) North East Scotland: 7 members;(g) South of Scotland: 6 members;(h) West of Scotland: 6 members.(4) The Boundary Commission for Scotland must keep under review the regions and the number of Members to be returned for each region, and if appropriate make a report to the Secretary of State recommending changes.
(5) Any reports by the Boundary Commission for Scotland under subsection (4) are subject to the requirements, and to the provision for the implementation of recommendations by Order in Council, contained in Schedule 1 to the Scotland Act 1998.
(6) The proceedings of the Scottish Senate shall be regulated by Standing Orders agreed by the Senate.
(7) Standing Orders agreed by the Senate shall include provision for the Senate to—
(a) undertake pre-legislative scrutiny of proposed Bills;(b) consider and propose amendments to legislation agreed by the Scottish Parliament for future consideration by the Scottish Parliament before it is submitted for Royal Assent;(c) debate and pass resolutions on devolved matters; and (d) establish committees with the power to call or require Scottish Ministers to give evidence on any devolved matter.”

[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.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, I start with an apology to the noble and learned Lord, Lord Keen, for my irritation earlier. As my noble friend Lord Kirkhill pointed out to me, the Minister has not been a Member of this House for very long and we should be more tolerant, which is something that perhaps some on his own side ought to reflect on as well. I hope he will accept my sincere apologies.

However, I think he is wrong: just because this proposal was not in Smith, that does not mean it cannot be in the Bill. The Bill states:

“To amend the Scotland Act 1998 and make provision about the functions of the Scottish Ministers; and for connected purposes”.

It does not say that it is simply to implement the Smith commission work. So my amendment is entirely in order. Indeed, the Public Bill Office would not have allowed me to get away with tabling it if it was not.

Perhaps I may say how much I welcome the fairly widespread support for the amendment. As the noble Lord, Lord Norton, said, I think everyone recognises that there is a problem. I thought the noble and learned Lord, Lord McCluskey, had a better description of it when he quoted Lord Hailsham talking about an elected dictatorship rather than the effective one-party state that I have described. There are different ways of dealing with it and I have put forward one suggestion. It has been suggested by some in certain quarters, astonishingly, that this is not our responsibility. Notwithstanding that, the same people are trying to impose all sorts of things on the Scottish Parliament. The noble Lord, Lord Norton, is right to say that the Presiding Officer, along with her colleagues, has the principal responsibility for this, but there is nothing to stop us, as we saw earlier, making recommendations and indeed legislating.

The only two people who have been Members of the Scottish Parliament who have spoken are the noble Lord, Lord Purvis, and me, and we both have respect. I do not think the noble Lord, Lord Stephen, spoke in this debate although he did in previous ones and, of course—he keeps changing his name so I can never remember James’s latest title—

[A noble Lord]

Lord Selkirk of Douglas.

[Lord Foulkes of Cumnock]

Thank you. The noble Lord, Lord Selkirk of Douglas, was also a Member of the Scottish Parliament.

I have the same respect as the noble Lord, Lord Purvis, and I understand why he may not be as convinced as I am of the need for change. I served on the audit committee and we did some good work with Hugh Henry in the chair, but that was a time when the SNP did not have an overall majority. I do not know whether the noble Lord fully realises and appreciates the change that has taken place since the SNP has had a total overall majority. We know of PMQs, but even worse are FMQs when the First Minister has the last word. Look at the size of the Executive. What Willie Ross and three junior Ministers used to do is now being done by 13 Cabinet Ministers, each paid over £100,000, and 11 other Ministers. It is really quite astonishing the way in which that has grown.

I accept from the noble Lord, Lord Purvis—I do not accept it from others—that this matter would be best dealt with in an overall way through a constitutional convention. The noble Lord and I have been active in that. It is difficult on this occasion, but to be fair to the noble Lord, Lord Forsyth, he also supports the idea of a constitutional convention. However, he has so far been unable to persuade his Government that that is the right thing to do. To some extent it would be useful if he spent some energy trying to persuade his Government to accept the wisdom of that.

I really welcome the support from the noble Earl, Lord Kinnoull. His point about constituency Members being very busy dealing with case loads is a really important one, which added to the case that I made. I am also grateful for the support of the noble Lord, Lord Lyell, who, like me, is a football fan. He knows that it is astonishing that some people can be put in prison for up to five years for one of these offences. That is now being criticised by some on that side in the Scottish National Party, but nothing seems to be able to be done about it. I am grateful for the qualified support of my noble friend Lord Maxton. As the noble Lord, Lord Norton, said, there is a danger that an elected House will want to accrue power. That is something that we must take account of as well.

So, there is a problem; I think everyone recognises that. It is not something to which there is an easy solution. That is why any solution that is brought forward by anyone will be open to criticism of one kind or another. However, it is about time we talked about these things. It is even more important that the issues are addressed in Scotland by Scottish civil society, as well as by the Scottish Parliament. After all, the Scottish Parliament itself says that it is the people of Scotland who ultimately have sovereignty. I am one of those people; I speak not just as a Member of this House. I have been getting quite a lot of support on Twitter for this proposal—I do not often get support on Twitter as some noble Lords will know—and quite a lot of support from other quarters, so it is about time that we started looking at the issue in a sensible, coherent and systematic way. If I have contributed just a little to that, I will feel it was worth while to move the amendment. Nevertheless, I withdraw it.

Amendment 21 withdrawn.

--- Later in debate ---

[The Earl of Kinnoull]

My Lords, I am attracted by the thinking behind this amendment. I remind your Lordships of a few lines from the Smith commission report, headed, “Inter-governmental working”:

“Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem”.

It went on:

“Both Governments need to work together to create a more productive, robust, visible and transparent relationship”.

Then, later on:

“I would encourage them to find solutions”.

This amendment, and the thinking behind it, drives at that area and, therefore, has my total support.

Following on from the point made by the noble and learned Lord, Lord Hope, and the noble Lord, Lord McAvoy, it is a pity that the SNP are not here to talk to this issue. Thanks purely to their party political policy, they, as the self-styled voice of Scotland, are not here voicing their opinions or advancing amendments. Indeed, we would have none of its amendments were it not for the work of the noble and learned Lord, Lord Hope. I regret this self-inflicted state of affairs.

Anything which promotes co-operation, co-ordination and communication is part of the business of good government. I thought it would be helpful for your Lordships to have one real example of the problems associated with devolution. I am the chairman of the Red Squirrel Survival Trust, a UK-wide charity which is doing pretty well what it says on the tin. Red squirrels run backwards and forwards across the border between England and Scotland with no barrier. In the autumn of 2013, I had a meeting with two senior officials from Scottish National Heritage; men of great calibre and enthusiasm. During the meeting, it came out that they did not know their opposite numbers in England or their telephone numbers. A red squirrel is a UK-wide mammal which is severely endangered, but communication totally broke down at the point of devolution. Being the men they were, they instantly began working at a solution and something called the United Kingdom Squirrel Accord, which covers problems for both red and grey squirrels and for broadleaved trees, grew up. I am, in fact, the chairman of that as well and I salute its work. That is an excellent example of where, if communication, co-ordination and co-operation break down, you get bad government, not good.

[Lord Foulkes of Cumnock]

I will just intervene, rather than make a speech. I agree absolutely with the noble Earl and with the amendment. I do not know whether the noble Earl has heard but at Question Time I regularly ask UK Ministers, again and again, what discussions they have had with their Scottish counterparts. Invariably, it is none. They ought to meet with them more often. The trouble with Westminster, and Whitehall in particular, is that they do not pay enough attention to the devolved Administrations where there are the kind of issues, such as the red squirrels, which the noble Earl mentioned.

[The Earl of Kinnoull]

I am grateful to the noble Lord: I had heard that. It is an endemic issue. With the squirrel accord, various governmental bodies from the Welsh, Northern Ireland, English and Scottish Governments now actually sit together once a quarter. If they cannot do so, they are on the telephone. They know each other and have to meet face to face once a year. I feel a bit like a schoolmaster there, but it is extremely effective in this one tiny area. The amendment, and the thinking behind it, could be very effective because the nature of this report will be to find out where there are weaknesses. We have very high-quality officials north and south of the border and, once a problem is identified, they have the ability to sort it out. Therefore, the thinking behind the amendment deserves consideration, if not, perhaps, its precise wording. It is very much within the scope of the Bill, given the quote that I read out. I commend it to the Committee.