Scotland Bill

Lord Garel-Jones Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Sewel]

My Lords, here we are again. It seems like only yesterday that we were discussing the Scotland Bill. Over the intervening years, the cast of characters has changed in this Chamber, and I think we can say that it has been enriched, particularly by the noble and learned Lord the Minister, the noble Lord, Lord Forsyth, and my noble friend Lord McConnell. The one sad bit is that I think we all miss the contributions, which we learnt to love and appreciate, made by the late Lord Mackay of Ardbrecknish. His is a voice that will not be heard this time around, unfortunately.

I wish the Minister the best of good fortune in guiding the Bill through your Lordships’ House. I make it clear that I broadly support the Bill, although I hope that we do not spend quite as much time in Committee this time as we did in 1998. I thought that I understood the 1999 Act pretty well inside out but it had passed me by that we had devolved Antarctica. Whether it meant that we could send the noble Lord, Lord Forsyth, on internal exile to Antarctica, I do not know, but at least it is some relief that we have re-reserved it.

There is one thing that I do not understand in the Government’s approach to this legislation. This is undoubtedly a constitutional Bill, as the Minister made clear from the very beginning, so the question arises as to why the Government have sought legislative consent Motions from the Scottish Parliament. The position does not seem to be totally clear because the Secretary of State for Scotland was quoted the other week as saying that the Government would push on with these proposals, even if the Scottish Parliament came out against them. Why have a legislative consent Motion if you are going to do that? Are the Government going to use the “not normally” qualification in the Sewel convention? It would have been a lot better if the Government had said that this is a constitutional Bill and, because of that, it is a reserved matter, although of course the opportunity is there for the Scottish Parliament to express its views and to be involved in the consultation. However, I think that the approach taken by the Government so far is a bit messy.

As many noble Lords have discussed, the Bill has to be set in the wider political context of the debate about the relationship between Scotland and the rest of the United Kingdom, and indeed about the future of the union itself. I do not take the somewhat depressing view put forward by the noble Lord, Lord Lang. There is almost an element of political unreality in discussing this matter in your Lordships’ House, where all the parties represented support the union—with one personal exception. The party that presently forms the Government of Scotland is committed, hook, line and sinker to the destruction of the union and we have to recognise that in the way that we approach and understand the terms in this Bill.

In 1998—I am sorry to keep on harping on about this—I said on one occasion that I was a devolutionist because I was a unionist. That is still my position. I think that the union is of fundamental importance to us all. The union celebrates diversity rather than imposing a stifling uniformity. Having lived in England, Scotland and Wales, I find that it is that sort of union and diversity, that mixture, that creates something rather special about the United Kingdom. It ought to be nurtured, celebrated and preserved.

Why are we dealing with a Scotland Bill a dozen years or so after the original one? Clearly it is sensible to take stock, to see how things have worked out, and to make some common-sense adjustments. I think that that is absolutely right now that the settlement has had time to work and some shortcomings—the very few shortcomings in the original Act—have been identified. Part of the pressure for additional powers has come from those who have argued that devolution is a process rather than an event. Within the United Kingdom as a whole, I hope that it is a process, but whether they want real regional government in England is up to the English to take forward at some stage. In Scotland those who have argued for the process rather than event case have done a disservice to devolution. Where is the process likely to lead? Is it not almost perverse to set in train a line of thinking that makes a major concession to your principal opponents, who want to destroy the union in the first place?

A major disappointment about political debate in Scotland since devolution has been that very few voices have argued the alternative case, that devolution gives Scotland the best of both worlds: the ability to devise Scottish solutions to Scottish problems set against Scottish priorities, while at the same time ensuring that Scotland enjoys the social and economic security of being part of a larger state, together with the greater political influence that that brings. Nowhere is that more the case than in Scotland’s relationship with the European Union, where, because qualified majority voting is the normal system of EU decision-making, it is infinitely preferable to be part of a large member state with a lot of votes than of a small member state with few votes.

There are a couple of areas in the Bill where the Government ought to have seized the opportunity to clarify things. This is particularly the case with vires, which has been mentioned already. In Schedule 5, nuclear energy, for example, is reserved, apart from two exceptions.

[Lord Garel-Jones]

The noble Lord mentioned qualified majority voting as being the norm, but I am sure that he would agree that an application by an independent Scotland for membership of the European Union, which it would have to make, would need unanimity.

[Lord Sewel]

Treaties do—a treaty change would require unanimity. In terms of the normal day-to-day policy-making of the EU, it is now virtually all qualified majority voting.

Can I get back to nuclear energy? Nuclear energy is essentially reserved, but the Scottish Parliament—the Scottish Government—is opposed to it, wanting to use, I suspect, their planning powers to prevent it. The issue is whether the use of the planning powers would pass the purpose test on vires which is in the Act. If there is doubt about that, surely this is the opportunity to make it absolutely clear where responsibility for nuclear energy lies. That is a big issue that we are going to have face up to in this country in the very near future.

The second area—the obvious one—is to do with the calling of a referendum on independence. As the Minister knows, that specific issue was a matter for debate both in the other place and here during the passage of the 1998 Bill. Perhaps I may read two quotations. One follows a question that was asked by the then Mr Michael Ancram of Donald Dewar particularly on this point. The Secretary of State replied:

“It is clear that constitutional change—the political bones of the parliamentary system and any alteration to that system—is a reserved matter. That would obviously include any change or any preparations for change. … If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements ... A referendum that purported to pave the way for something that was ultra vires is itself ultra vires”.—[Official Report, Commons, 12/05/98; col. 257.]

Those were the words of Donald Dewar. In this House, the Minister in charge of the Bill was also questioned on this issue. There was a specific amendment put down. In arguing that any act about the continuation of the union would be beyond the competence of the Scottish Parliament and therefore not lawful, the Minister said:

“Perhaps I may go through the three steps that lead to that conclusion. First, the parliament cannot legislate if the provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union of the Kingdoms of Scotland and England is a reserved matter by virtue of paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on independence would be legislation about whether the Union should be maintained and would therefore relate to the reserved matter of the Union, and so be beyond the competence of the parliament. That is brought in by the purpose test [on vires]”.—[Official Report, 21/07/98; col. 854-55.]

Do the Government still hold to that position or not? If they do not, they must in all fairness, honesty and transparency amend the Bill so that it deals with and faces up to the issue.

On the increase of non-financial powers, which are of mind-blowing importance, I welcome them. There is no fundamental change in them, which is perhaps because the original Act was quite good. The noble Lord, Lord Forsyth, has previously spotted the question of the poor guy who lives in England, drinks in England, but drives through Scotland to get there. At the beginning and the end of the journey, he is perfectly lawful, but for the five miles or so that he drives through Scotland, he is committing a crime. I am sure that this is not beyond the powers of the Government to sort out.

The real substance of this Bill is the financial powers. That is the real guts of the whole thing. I welcome the intent of those clauses. I believe that the one major mistake we made in 1998 was failing to ensure that the Parliament was financially accountable to the people of Scotland. That omission has meant that the crucial political decision of striking a balance between expenditure and taxation has been missing, and that has led to at least a rhetoric of irresponsibility. By giving this power, that is closed off, and I thoroughly support it.

However, I do not believe in fiscal autonomy, not least because devolution provides a structure through which the resources of the whole of the United Kingdom can be redistributed so that more wealthy and prosperous nations and regions of the UK can assist the less wealthy. That, at heart, is the social democratic argument for devolution.

As for the powers of the Scottish Parliament to create new taxes but only with the approval of the Parliament of the United Kingdom—a point which the noble Lord, Lord Forsyth, may have skipped over when reading the Bill—the issue is how that is going to be done. Will it be done by primary legislation? Will that approval be given by primary legislation, by resolution or by order? That has to be specified in the legislation.