Scotland Bill

Lord Sewel 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.

[Lord Forsyth of Drumlean]

I hesitate to interrupt—I have said too much already tonight—but, just on that point, if we cannot bring ourselves to deal with the vires, does the noble Lord seriously think that we are going to bring ourselves to contradict them if they introduce a new tax?

--- Later in debate ---

[Lord Sewel]

I think that it would depend on what the tax was. If it was a tax on left-handed people, I would happily vote against it. When it comes to taxation, nothing is ever simple—as the noble Lord, Lord Forsyth, knows. It is important to catch the right people and avoid creating the potential for someone finishing up being a territorial taxpayer in two jurisdictions. I am not quite sure that the Bill has that bit right. I remember long and interesting discussions on lorry drivers sleeping in their cabs at night north or south of Gretna and the great importance that that would have on whether they were a taxpayer. How anybody knew whether they were going to sleep north or south of Gretna, I never dared try to find out.

[Lord Lyell]

I have all that debate—it is in vol. 593 —here with me. After I have been able to speak in this debate—perhaps in the morning—the noble Lord might be able to read that in Hansard. However, he is absolutely right. I shall never forget all the efforts that he made—it is all here. Alas, I was before him getting vol. 593.

[Lord Sewel]

I thank the noble Lord very much for that intervention.

Perhaps I may focus on one last thing. The really big difference is now that Scottish public expenditure will be financed by a combination of tax raised in Scotland and grant given to Scotland by the United Kingdom Parliament. Everything about Scottish income tax is defined and specified in the Bill, but the Bill is silent on grant, and that is still going to be the largest source of income for the Scottish Parliament. I think that that is a lopsided arrangement that really is unsustainable. We have got to the stage now where the grant element ought to be defined in legislation as well as the tax element.

I have spoken much too long. I think that this is a good Bill. It builds on the original Bill without fundamentally disturbing it, and I welcome it wholeheartedly. However, I think that we are going to spend quite a bit of time in Committee.

[Lord Steel of Aikwood]

My Lords, the late Donald Dewar once observed that devolution is not an event but a process. I very much agree with that, and I believe that we should look at this Bill as the second.

[Lord Sewel]

This phrase that it is a process rather than an event is attributed to Donald Dewar. I spent some time trying to trace the source of that comment, but I could not find any occasion when Donald Dewar said it. It was said ad nauseam by the then Secretary of State for Wales, for very good reasons, if you looked at what Welsh devolution was.

[Lord Steel of Aikwood]

That has lengthened my speech already, before I finished my first half-sentence. Anyway, it was attributed to him, but the point is that it is true, and I regard this Bill as the second stage of the process of devolution, the 1998 Act being the first stage. It may not be the last stage; there may be a third or even, possibly, a fourth stage to come. I do not think we should be frightened of that. The truth is that we are wrestling all the time with the basic problem that we cannot have a proper federal constitution in this country because one component part is larger than the other three put together. That has been the difficulty with which Governments have had to wrestle, so we end up with what I have always called lopsided federalism.

When he opened, the Minister used a quotation from my Donald Dewar lecture in 2003 when I said that no self-respecting Parliament could exist permanently on the basis of a grant from another Parliament. I believe that is true, and although the speech of the noble Lord, Lord Forsyth, was very entertaining, he did not address that problem. This Bill at least attempts to do so. After I said that, people in my own party came to me and said, “You’ve made this pronouncement. We agree with it. Will you now chair a commission to work out what we do about it?”. I was very reluctant to do that because I tried to follow the precedent of Speakers of the House of the Commons and not engage in party-political activity. However, I regarded it as a constitutional issue, and so I said I would chair the commission, provided that there were people other than the usual party enthusiasts appointed to it. I was greatly assisted by my noble friend Lord Vallance, who had then just retired as chairman of British Telecom and is a former director of the Royal Bank of Scotland, and my right honourable friend Chris Huhne, with all his economic expertise.

We came up with what became known as the Steel commission report, which was subsequently the substance of our evidence to the Calman commission. The one difference between the two—this has been commented on by many in the Liberal Democrat ranks—is that our commission recommended a far wider sweep of tax-raising powers than is in this Bill or was recommended by the Calman commission. The noble Lord, Lord Forsyth, put his finger on it when he talked about the possibility of having a wider net of tax-raising powers rather than focusing simply on income tax. The fact is that the Calman commission was the product of a consensus agreement between the three parties taking part in it, and the Bill is the result of a consensus agreement. I have always believed that when it comes to constitutional reform, you cannot expect any one party to dictate how exactly it should proceed. If constitutional reform is going to succeed properly, it has to be on the basis of a broad range of consensus. I therefore find myself in support of the principles of the Bill in its tax-raising powers, although clearly in Committee we can have much more discussion along the lines that we have heard already.

I was very interested in the speech by the noble and learned Lord, Lord Davidson, and the noble and learned Lord, Lord McCluskey, about the fallout from the remarks by not just the First Minister but also by the Minister of Justice in Scotland about the Supreme Court decision on a human rights case. It seemed to me that they were quite paranoid about the court being in London and would be quite happy for cases to go to Strasbourg, which is a most bizarre position for them to adopt. I was incensed by the language used and the insult to prominent members of the Scottish judiciary who serve on the Supreme Court. I thought it was quite intolerable, and that is why I resigned as an adviser to the First Minister on the ministerial code of conduct. As I said to him in a letter at the time, I did so because if now that they had a majority that was how they were going to behave, there would be more and more complaints against Ministers, and I did not want to spend my time refereeing them. I do not regret that decision. However, the issue that they raised in the debate today was echoed by another Donald Dewar lecturer—namely, Elish Angiolini, the immediate past Lord Advocate—whose lecture I went and listened to. She devoted the latter part of her speech to this issue and clearly was not satisfied that we have yet solved the question of how we treat our engagement with the Humans Rights Act with the new Supreme Court. We should return in Committee to the points made by the noble and learned Lord, Lord Davidson, and the noble Lord, Lord McCluskey, and treat them very seriously. I welcome what they said.

One minor point which I am pleased to see in the Bill, in Clause 4, is about the Presiding Officers in the Scottish Parliament. It is a direct result of the evidence which I gave to the Calman commission. We had the embarrassing situation in 2002 where, despite juggling hospital appointments with the Easter Recess, I had to take two weeks off from the Scottish Parliament for treatment for prostate cancer. My two deputies had a simply terrible time trying to cope with not just chairing the Parliament, because that is only part of the function, but chairing the committees, the Parliamentary Bureau and the corporate body. They had also to entertain the legions of visitors that we had, because the Foreign Office took it into its head to tell every visiting dignitary coming to this country, “You must go to Scotland and see this thing which has come to pass”. We had constantly to give lunches and dinners to visiting people. My two colleagues told me that they were run absolutely ragged during that fortnight. It was intolerable that the Parliament had no power to appoint a third deputy even for a temporary period. I am delighted that that minor flaw has been put right in the Bill before us.

I share the surprise of others who have spoken that the Bill is silent on the question of holding a referendum. Again to be fair to the Government, I point out that the election of the SNP Government in May came subsequently to the Calman commission’s deliberations and the drafting of the Bill. We should be quite open about that. The Bill has come to us; we shall have to deal with it in Committee; and we should look at that question. There is a real danger that Scotland will find itself sleepwalking into independence unless we tackle the matter. As others have said—the noble Lord, Lord Sewel, was right—this is quite plainly and clearly a reserved matter for the Westminster Government. It is not a question of the SNP Government saying, “Well, we’re elected, therefore we can have a non-binding referendum which we devise—and we organise, by the way, not the Electoral Commission”. That would be intolerable. We should make it quite clear in this Bill that, granted that the SNP has its majority and a mandate to hold a referendum, ensuring that it is done in a proper way is a matter for this Parliament. The Bill has to come to us late, but we have the responsibility to send it back to the Commons for further deliberation.

My right honourable friend the Secretary of State has asked some very pertinent questions of the SNP about what it means by independence, and I hope that we will in due course get answers to them. My heart sinks at the thought that we will have three years of debate and uncertainty about independence or not, with a permanent collective whinge from the Scottish Government that everything that goes well in Scotland is due to their magnificent government and everything that goes wrong is due entirely to Westminster. It is not a situation that we should allow to fester for three years.

The basic question which the SNP has to address is whether people in this country really want a situation where Scots people living and working in London are living and working in a foreign country, and English people living and working in Scotland are living and working in a foreign country. That is what independence means and we should not hesitate to say so.

I also believe that there is a common misunderstanding about the history of how the union came about. It is frequently said, “Oh, well, it was all bribery and corruption that the Scottish Parliament was abolished and people were against the union”. They were not against the union. In 1704, three years before the treaty was signed, Fletcher of Saltoun said that he was in favour of the union,

“to do away with bloody and destructive wars”.

The fact was that there was a perfectly good defence and foreign policy case for the union, just as there was an economic case following the collapse of the Darien scheme and the ridiculous notion that we in Scotland should compete with England in colonial adventures following that disaster.

When there were discussions between the two Parliaments in 1706, although the word “federal” may not have been used—it perhaps did not exist in those days—the discussion was of federal type constitution. When it became clear that the English representatives would not accept that, and that it had to be an incorporating union or nothing, that was the point at which there were riots in the streets of Glasgow and Edinburgh. The truth is that the abolition of the Scottish Parliament was never accepted by the Scottish people. We saw that—although there were other factors as well—in 1715, 1745, through the 19th century, through the early part of the 20th century, the campaigns in the Labour Party, the Liberal Home Rule Bills and the covenant campaign of 1950 which attracted millions of signatures. The abolition of the Scottish Parliament was never accepted. The 1998 Act put right something that was done wrong in 1707. But that is a quite different argument from talking about going back to pre-1707 years and having a completely independent state north of the border.

This Bill is simply a fine-tuning of the 1998 provisions. So long as we treat it like that, it should deserve our support and go through to success.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, first I welcome and congratulate the noble Lord, Lord Browne of Ladyton, on his maiden speech from the Dispatch Box. He has had a very distinguished ministerial career in the other place and I am sure that the House looks forward to hearing him further from the Dispatch Box, not least in the many hours in Committee that have been clearly flagged up during our deliberations—and quite properly. As I indicated in my opening remarks, a number of contributors to this debate have said that this Bill should be properly scrutinised, as was the original Scotland Bill back in 1998.

I believe that we have had a very well informed, worthwhile debate. Noble Lords have contributed with great passion but with great knowledge, bringing to bear expertise in many different ways, having been informed by their experience of civic life in Scotland and, in the case of the noble Lords, Lord Wigley, Lord Morgan and Lord Soley, in Wales and England. They have all made a contribution as part of the United Kingdom and Members of this Parliament in the United Kingdom and have brought their experience to bear.

The general tenor has been one of welcome for the Bill, albeit with varying degrees of enthusiasm. My noble friend Lord Mar and Kellie described it as a mild measure. The noble Lord, Lord Elder, said that he fundamentally and enthusiastically embraced it. In between those views there has been qualified welcome, and, I think quite properly, people have put down markers as to where they wish to examine these provisions further. Like the noble Lord, Lord Browne, I find it impossible to pick up all the points that have been made. I think there will be time in Committee to develop some of them if I do not get the opportunity this evening.

However, I disagree with my noble friend Lord Lang, who saw this Bill as an admission of failure, following on from the failure of the 1998 Act, as he alleged. The findings of the Calman commission, as I think my noble friend Lord Selkirk of Douglas indicated, was that the Scottish Parliament was overwhelmingly judged a success. Clearly some people would not have wished us to go down that road. We do not have a parallel universe so we cannot work out what would have happened if the Labour Government, having come to power in 1997, had said, “We are not actually going to do any of the things that we have done, and we are not going to have a Scottish Parliament”. For my view, I suspect that it would have hastened the day when we would have had an even greater upsurge of the SNP if the promises made prior to 1997 had been broken. We do not know; we have a Parliament in Scotland. As has been said, it is part of the scene. It has been generally supported by the people of Scotland. In the Bill, we have set out to build on the foundations laid and improve our Parliament.

I turn to some of the specific points raised. The noble Lord, Lord Sewel, and my noble friend the Duke of Montrose raised the question of the Sewel convention. The passage of the Bill through your Lordships' House may be interesting if we have the noble Lord, Lord Sewel, talking about whether the Sewel convention should apply and in Committee the noble Lord, Lord Barnett, discussing whether the Barnett formula should apply. That would be novel.

The devolution guidance note established by the previous Government and adhered to since 1999 has been supported and endorsed by the present Government. It states that legislative consent Motions apply in three cases: where we are legislating on devolved matters; to amend powers of the Scottish Parliament; or to amend the powers of Scottish Ministers. I would be more than happy to make available devolution guidance note 10, which sets all that out. No doubt the noble Lord, Lord Sewel, will be more than familiar with the various provisions in the Scotland Act that allow powers to be transferred. In a number of those circumstances, that would have to be approved by the Scottish Parliament as well as by both Houses of this Parliament. Where that is done by other primary legislation, it seems right, and it was thought right in 1999, in the spirit of the convention, that if there is no order—if it is being done by primary legislation—there should be a legislative consent Motion.

[Lord Sewel]

Do I take it from that that if, ultimately, the Scottish Parliament decides that it does not accept the proposals, the Government would not proceed with them?

[Lord Wallace of Tankerness]

That is a highly hypothetical question. The Scottish Parliament has already approved the proposals by 121 votes to three. It remains to be seen what the committee of the new Parliament will do with any amendments, but the Scottish Parliament has already approved the proposals.

With regard to the specific powers on the boundary between devolved and reserved matters, I know that there has been comment that the Bill does not contain a substantial number of powers. As I said earlier, that is probably a reflection of the fact that the balance struck and judgments made in the initial Scotland Act were basically right, but we should not belittle or minimise the changes being made. They have been well thought through. In the case of Antarctica, there was clearly an oversight, but that is not an academic argument—well, in some respects it is an academic argument because if anyone wishes to undertake research in Antarctica, they require a permit or licence, and I am sure that Scottish academic institutions will wish to do so. It is only right that we ensure that the proper regime is in place for them to do so with certainty.

My noble friend Lord Shrewsbury asked about air weapons. The question here is not so much about the devolution of the power; some of his points reflected the fact that the Calman commission did not go beyond air weapons because the advantage of having a common system for other firearms throughout Great Britain was well understood. Many of the issues he raised are not so much about the devolution of the power but how the power might be used by the Scottish Parliament. Clearly, we will come back to that in Committee, and I look forward to looking at that in greater detail.

My noble friend Lord Forsyth suggested that we should not get too excited about a change to drink-driving. He might want to note the evidence provided by the Association of Chief Police Officers in Scotland to the Scotland Bill Committee of the Scottish Parliament. It stated that ACPOS welcomes the proposals contained in the Bill relating to drink-drive limits, which it would consider a step towards helping save lives and preventing serious injury on Scotland's roads. That is not a trivial matter at all. It is an important point. If, by exercising the power, the Scottish Parliament is able to pass legislation that would have that positive effect, then we welcome it.