Scotland Bill

Lord O'Neill of Clackmannan Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord O'Neill of Clackmannan]

I am very pleased to follow the noble Lord, Lord MacGregor. There seems to be an outbreak of unity in the Chamber today and we should be grateful to the noble Lords, Lord Forsyth and Lord Foulkes, for their amendments. The amendments may have imperfections but the point has been well made that devolution was to be about the extension of democracy, greater accountability and, ultimately, greater transparency. Through that, we hoped that there would be a measure of equity. In fact, what we have here is a classic example of the inequitable character of our constitutional arrangements.

I voted very reluctantly in favour of the principle of charging fees—I was probably one of the last converts from the Whips’ arm-twisting process and what have you. However, I am not sure whether I would have voted in favour of the principle of fees if I had thought that it was going to be abused in the way that it is being abused by the Scottish Government. From the very speedy but quite succinct analysis given by the noble Lord, Lord Sutherland, of the accounting procedures adopted by the separatist Administration in Edinburgh, it is quite clear that they are out to discriminate against the rest of the United Kingdom and to prevent young people coming to our universities. If they do come, they will be making a disproportionate contribution to the finances of these institutions.

It is certainly the case that some institutions for historical reasons, such as Edinburgh, are probably better endowed and better able to introduce generous systems of support. There are a number of institutions that one might almost call marginal in their financial capability to provide the kind of support—

[Lord Sutherland of Houndwood]

I thank the noble Lord for giving way. The money that Edinburgh will put forward for needy students comes from the total fees package that is taken in. Clearly, they test alumni—looking around the Chamber, I remind Members of this—for additional funds to do that, but a significant part of the money comes from the fees that they charge.

[Lord O'Neill of Clackmannan]

The point I was going on to make is that some of the newer institutions are less well endowed in the round, have smaller numbers of alumni for a start, and are discriminated against in another way. Those institutions are not as attractive and are therefore unable to benefit from students from the rest of the UK or from abroad. Even within the system there are difficulties and inequities. There are imperfections in the two amendments, and the Government have to take the point that this Chamber is not happy with the way in which things have developed, nor with the unfairness that has been inflicted on children and families across the country. One part of the United Kingdom is able to benefit from devolution in this way and have free education at undergraduate level, while others in the same country are discriminated against when they come to Scotland to study or are deterred altogether, which I think is even more significant. Our universities and our Scottish institutions make a unique contribution to the mix.

I have had this discussion in my own family with my sons. They say, “We’re not really interested in going to Oxbridge; we think Edinburgh and Glasgow are perfectly adequate to provide us with an education”. One could argue that they might have got the emphasis a wee bit wrong, but that mood still prevails. However, we do not want children to grow up in some kind of Caledonian closet, where they will not be open to other relationships and cultures. My younger son, who went to Glasgow, learnt a lot from being in the same halls of residence and playing in the same football team as young men from Northern Ireland, whose cultural and social background was dramatically different from his own. Such people will not necessarily have the chance to come to our institutions and the Scots who go to our institutions will not have their company.

Money is at the beginning, the middle and the end of this situation, but there are other dimensions. When we started on the road to devolution, we wanted, as I said earlier, to create a better United Kingdom, not a United Kingdom that was inequitable because of the cynicism of separatists in Scotland who wished to use the mechanism at their disposal to discredit the concept of the UK. This is an opportunity for us to avoid that and to ensure that they can be exposed for the charlatans they are when they argue in favour of free education for some but not for the rest, not because they do not happen to be Scottish but because they just happen to live in the wrong part of the United Kingdom.

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[Lord Browne of Ladyton]

I am grateful to the noble Lord for that intervention. I am a member of a profession that prides itself on discrimination—at least certainly in its history it did—between those who had rights of audience in the higher courts and those who were historically perfectly capable of making the arguments but were denied. That division was addressed in the way the noble Lord has suggested. I am absolutely certain that the discrimination I was alluding to, which was based more on geography than on someone’s membership of certain branches of the profession, has now been addressed. I am not entirely sure whether it has or not, but the purpose of introducing it was not to take us down a cul-de-sac, but to explore the issue of whether the interest in principle of the noble Lord, Lord Forsyth, was a necessary way of redressing a situation that went beyond student fees.

[Lord O'Neill of Clackmannan]

Perhaps my noble friend would remember that we do not need to have a solution that covers every form of discrimination. He should not allow the waters to be muddied by the somewhat unhelpful intervention of the noble Lord, Lord Forsyth, by way of a question. It is quite clear that on the educational issue here, this Committee is united. That is the message which should go up the channels of the Labour Party to those who will think about considering another amendment at some stage and whether or not it could be supported. Let us be clear: we just want something on fees and on the discriminatory effect of that issue.

[Lord Browne of Ladyton]

I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.

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[Lord Maclennan of Rogart]

My Lords, I support the thoughts lying behind this amendment. When approached recently by an American company which indicated the desire to establish a small nuclear research plant in Scotland to develop nuclear power on a small scale, I was rather shocked to be advised by the Department of Energy and Climate Change that, because of the planned powers for the Scottish Parliament and the declared expression of intent to allow no nuclear developments in Scotland, this approach, which would have brought significant employment to Scotland, was to be denied.

I know that there are different attitudes to nuclear power in different parts of Scotland. I know, for example, that my noble and learned friend’s former constituents were always a little unhappy about what was happening across the Pentland Firth at Dounreay. Equally, my noble and learned friend will recall the satisfaction of my former constituents that nuclear power was being developed and researched on the north coast of Britain as part of a strategic policy on energy development. It is rather unfortunate, to say the least, that the good will of those in that particular area towards nuclear power is to be overlooked and that the possibility of replacement in the research field is to be denied when the Dounreay nuclear establishment is finally decommissioned.

My comments, like those of the noble Lord, Lord Sewel, are probing. It appears that the original intentions of devolution in respect to energy policy have been effectively stymied by matters which will not necessarily proceed to be related directly to the strategic questions. Having policies for different parts of the United Kingdom in relation to energy, which transcends even existing national frontiers, is almost certainly unwise. Indeed, I think that when the Prime Minister came back from the European Council the other day, he talked about enlarging the scope of the European Union in respect of energy policy. Therefore, we seem to have two standards here—one relating to how we deal with Europe and one relating to how we deal with internal matters—and I think that these anomalies need to be sorted out. However, as I said, this is merely a probing inquiry.

[Lord O'Neill of Clackmannan]

I should like to follow my colleagues on this issue because for some time I was chairman of the Nuclear Industry Association. My connection with that organisation has now been terminated, so I do not have to declare an interest but I still have great affection and respect for the industry.

It is certainly fair to say that an amendment of this kind has to be probing in character because, to be realistic, we do not really want to face the prospect of a planning challenge at this time on nuclear matters. I do not think it would be reasonable to say that there is fantastic demand in Scotland for Hunterston C and D being constructed at this time. However, by 2015 or 2016, we will have the large plant directive in place and, therefore, Cockenzie power station, which is relative small, will probably be closed and we will also have the prospect of Longannet, which is the massive linchpin of Scottish power generation, operating under severe constraints as a consequence of the large plant directive.

Torness will probably carry on until 2025, given likely extensions if the safety codes are met. Within the next eight years investment decisions will have to be taken as far as replacement base load generation is concerned. It ought to be made as clear as possible what restraints there are on the possibility of the planning powers of the Scottish devolved Parliament being constrained or changed or being ignored, if that were possible. If energy is a reserved power, does the power to frustrate through the planning process necessarily enable a Scottish Parliament to deny the people of Scotland and the United Kingdom the contribution that a power station on the scale of Torness could offer?

It is suggested that the nuclear industry is somehow alien to Scotland, that we do not have anything to do with it, and the plutonophobes, in their separatist windmills, forget that probably as much credit has to go to James Clerk Maxwell as anyone for the development of nuclear power. Through companies like the Weir Group and through a variety of other groups like Renfrew-based Doosan Babcock, the nuclear power industry is very vibrant and strong in a lot of areas of Scotland. Although it does not enjoy the weekend press releases that we get for the somewhat immature, renewable technologies—immature in the sense that they are barely proven and barely out of the laboratory—in its hands will lie the economic success of Scotland.

It is true that we will still have gas-fired power stations, but it is quite likely that, if the carbon capture and storage technologies are developed, they will try to apply them to that form of generation as well. If that happens, it will severely restrict even the capability of the gas-fired power stations to make a proper contribution to our energy needs. I make the point that, although today it is not an important issue, we still have some time to go before a Torness replacement has to be considered. There will be uncertainties about the continuing generating capability of our main stations by 2015. Not all of us are quite as optimistic about the contribution, 24/7, base load in character, that can be made at present by renewable power stations.

Therefore, it is important that an issue of this nature is afforded some clarity. That is why I am very grateful to my noble friend Lord Sewel for raising it. We are not asking for the earth to move or anything like that; we are merely asking for some clarity from the Advocate-General on this question.

[The Earl of Mar and Kellie]

My Lords, is this not a matter of Scottish democracy? I suggest that in 2016, the Labour Party in Scotland needs to come forward—providing it is prepared to put up with the description of being nuclear Labour—with the type of policy that will presumably be substantially different from the policy continuing to be put out by the current Scottish Government.

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[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Sewel, for introducing this issue. I take the point he made that the pegs on which he hangs it are perhaps not details that he wishes to address. Rather he wishes to open up the wider issue of energy policy and, more specifically, nuclear energy policy with regard to the devolution settlement.

That said, it is important to note that decommissioning gives rise to important issues regarding substantial amounts of nuclear waste. We do well to remember that decommissioning the civil nuclear legacy and managing the radioactive waste produced as a result is a joint project across the UK, and the Nuclear Decommissioning Authority reports to both Scottish and UK Ministers, although it is funded centrally by the UK Government through DECC. There have been good working relationships on that point.

The noble Lord, Lord Sewel, raised the more general question about energy policy. The balance that has been struck, with the United Kingdom in the driving seat with regard to UK energy policy, is one that we endorse. The Calman commission received a number of representations on these issues and indicated that it believed that a UK-wide approach is essential to ensure a continuing national supply, that international targets and obligations are met and that consumers have access to a competitive and modern energy market. It concluded that the current arrangements remain appropriate and provide a balance between powers appropriately exercised at devolved and reserved levels, although it encouraged proper engagement between the two Governments.

The UK nuclear energy policy has been set out in the national policy statement EN6, which was ratified in 2011. I am grateful that my noble friend the Minister at DECC is in his place. He will, no doubt, correct me if I get any of this wrong. This national policy statement provides for enough sites across the United Kingdom for a significant build programme going forward for new nuclear sites. I do not know the detail of the extension times for currently operational nuclear power stations. Scotland currently has five nuclear power stations, three of which are in the process of being decommissioned—Hunterston A, Dounreay and Chapelcross—and two are still operational—Hunterston B and Torness. There is also an MoD site, as my noble friend Lord Maclennan will know, the Vulcan Naval Reactor Test Establishment adjacent to Dounreay, which ran a test reactor for the nuclear submarine programme. I will get confirmation to the noble Lord, Lord Browne, about the remaining lifetime of those plants.

I think it is fair to say that the noble Lord perceives that there may be some inconsistency in the view taken by the Scottish Government with regard to extension as opposed to their stated view with regard to new build.

[Lord O'Neill of Clackmannan]

I may be of some small assistance here. It is my understanding that life extension would be the responsibility of the Nuclear Installations Inspectorate. A safety case has to be advanced. Were that to have construction implications that required planning, that might cause a wee bit of a problem, but the basic case has to be satisfactory in the eyes of the Nuclear Installations Inspectorate.

[Lord Wallace of Tankerness]

I am sure the noble Lord is absolutely right. At the core of this—maybe not the right word—at the heart of it is the safety case, which would be determined by the independent Nuclear Installations Inspectorate. The noble Lord raised the point, which we will come on to, about other issues leading to issues about planning. It is not only planning because in 1999 there was executive devolution that transferred to Scottish Ministers powers under Section 36 of the Electricity Act with regard to giving permission for power stations in excess of 50 megawatts, and that would include any future nuclear power stations.

I perhaps interpret the concerns to include how that would operate. To be fair, more generally in planning it probably makes sense to have planning powers. In the debate on the then Scotland Bill, the noble Lord, Lord Sewel, said that,

“an Act of the Scottish parliament containing provisions about water pollution from coal-mines or dust from open-cast coal-mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish parliament. This would make a nonsense of the devolution of pollution control”.—[Official Report, 21/7/98; col. 819.]

There is some good sense that there should be planning considerations.

I should also perhaps draw to the attention of the Committee a decision in the Outer House, Court of Session, last year by Lord McEwan in a petition of Dulce Packard and others for judicial review. He said:

“The best guidance is the Lewis case (the mixed redevelopment at Redcar on Teesside). It is quite clear from the case that the Minister’s position is quite different from someone holding a judicial or quasi judicial office. All the Minister has to do is to consider genuinely the inquiry report and the objections”.

Clearly, we have not yet had any application. But he went on to quote from the Lewis case and the judgment of Lord Justice Rix.

“So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question”.

It would be wrong to speculate what would happen if any company applied for planning permission and was turned down. It is a high test, which I think Lord McEwan made clear. Nevertheless, he went on to say that the,

“test is applicable, the fair minded and informed observer must be taken to appreciate that predisposition is not predetermination”.

But evidence of predetermination might be relevant.

I had better stop there because one never knows when one might find oneself having to go down that path. In saying this, I hope I can give some assurance that the Government believe that the balance in the Scotland Act is right. As I have indicated, the national policy statement, which was ratified last year, provides for enough sites across the United Kingdom for a sufficient build programme going forward for nuclear sites. With these remarks, I hope the noble Lord feels that he has probed successfully. I am afraid that we have taken twice 12 minutes, but it has been a useful debate and I hope that he will withdraw his amendment.