Scotland Bill

Lord Sewel Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord Foulkes of Cumnock]

I think that things are moving up the scale, although they are taking some time to do so. We are making a little bit of an impact there now.

I want to make it clear that in moving the amendment I am conscious of the sensitivities in relationships between Westminster and Holyrood, and between the UK Government and the Scottish Government. We have found in many of our discussions that this is a sensitive area in which we have to tread very warily, and I would hesitate to say anything that suggested that the UK Parliament was imposing its will upon the Scottish Parliament.

I say that having been a Member of the Scottish Parliament for four years. A number of noble Lords who have participated in these proceedings have also been MSPs—including the noble Lord, Lord Steel, who was Presiding Officer, the noble Lord, Lords, Lord Selkirk, Lord Watson and others who have participated, and, of course, the noble and learned Lord, Lord Wallace, the Minister who is to reply. Those of us who have been in Holyrood are aware of those sensitivities and we move with caution.

However, this Parliament has some responsibilities. The action of the United Kingdom Government in imposing very high fees precipitated this issue in the first place. I know that this is one area where the noble Lord, Lord Forsyth, and I might not totally see eye to eye. I am very pleased to see present the noble Lord, Lord Sutherland, who was a distinguished vice-chancellor of my old university, Edinburgh—not when I was a student, I hasten to add; he is not nearly that old, and neither am I. His experience and deep knowledge of the university sector will be very helpful, and that demonstrates some of the value of this Chamber.

We also have a wider responsibility for the European Convention on Human Rights and the equality legislation, as epitomised in the Equality Act. We therefore have to bear some responsibility for and take some interest in discrimination and equality. What has been not just proposed but agreed by the Scottish Executive and Scottish Government is tremendously unfair discrimination against students from England, Wales and Northern Ireland who go to Scottish universities. It really is quite disgraceful. It is astonishing, when you think of it, that students from Lisbon, Madrid or Berlin will all get in free to Scottish universities, but students from Belfast, London or Cardiff will have to pay fees.

[Lord Sewel]

Does the noble Lord recognise the supreme irony in the Scottish Government’s position? On the one hand, they are arguing for independence, but the policy they are pursuing can be carried out only while they remain members of the United Kingdom. If they achieved independence within the EU, they would not be able to have this pernicious policy.

[Lord Foulkes of Cumnock]

My noble friend, who was a distinguished administrator and academic at the University of Aberdeen—he was vice-principal—has put his finger on one very important matter. In fact, he has taken away a major part of my speech. Never mind about that. It is a massive irony, as my noble friend said, that the Scottish Government are able to impose these discriminatory fees only because Scotland is part of the United Kingdom. If Scotland was an independent country, as the SNP wants, that Government would be unable to impose those fees. Students from England, Wales and Northern Ireland would be in exactly the same position as students from Poland, Germany or wherever in the European Union.

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[Lord Sewel]

Was the noble Lord as uncomfortable as I was when reading the justification of some leaders of Scottish universities for imposing the highest fees? They used the argument that it was necessary in order to prevent Scottish universities being swamped by English students. I found that deeply uncomfortable.

[Lord Sutherland of Houndwood]

I am very uncomfortable with that. On the other hand, there were reasons, which I shall come to now, for the level of fees being set as it is.

The policy of the Scottish Government and the funding council is such that in the period from last year to next year a gap of roughly £40 million will have opened up in the funding of those universities. The University of Edinburgh, much to its credit—as the noble Lord, Lord Sewel, will be pleased to hear—recruits a large number of students from south of the border, and they contribute significantly to the life of that university. That is part of the way in which the university focuses on its United Kingdom, let alone its international, obligations.

With regard to that gap of £40 million, I know it is put about by some that the universities are raiding the coffers of the rich English and that is why they are setting the fees as they are, but that is not the case. A funding gap has been created. I pay tribute to the University of Edinburgh because I believe that at the same time it has put in place the most generous and best scheme for helping students who could not otherwise afford it to come from south of the border. It is a very good scheme which I think could be emulated by others.

Where did this fees level come from? It came from two decisions. One was the coalition Government’s decision to increase the fees to £9,000, although I have to say that they were following the example of their predecessors. This is not an argument about whether there should or should not be fees. I resist the temptation to get into that, although I have strong views on it. That was one element of what created this division. The other is that the Scottish Parliament, through its allocation to the funding council, deliberately created a gap in the funding of Scottish universities—it is in its accounts—of over £50 million. It created that gap and in effect instructed the universities to raise the money from students coming from the rest of the United Kingdom. That being so, there is a dual responsibility here, and it simply illustrates the point made more eloquently by the previous speakers about how we can sometimes set out on a constitutional road that leads not just to unintended consequences but to very unfair and unacceptable consequences as many of us see them.

Students from the rest of the United Kingdom, or RUK—it has a name, which is a sign of how well entrenched it is—will have to live with students whom they know will be paying none of the £36,000 that they are paying. The case has already been given of at least two such universities. It is sometimes suggested that the £36,000 is unnecessary. That is not true. If we are to compete with the best in the United Kingdom, that is the carefully estimated sum of money that has to be put back into the budget of individual universities, and they have set their fees accordingly.

I should mention that I was rather pleased to hear in the Antarctic debate mention of the University of Edinburgh. It has very strong research interests there and I am glad that we are protecting those interests. The only other interest that I could think of Scottish universities having in the Antarctic was if a very strong strain of clever penguins started applying to universities. They would have to decide what fees to charge the penguins, but happily we are unlikely to face that problem.

To summarise, an indefensible gap has arisen. I am not sure that either of these amendments would deal with it completely, but it is time for further thought. Do we want our university community, which shares knowledge and a passion for truth, to be divided within the United Kingdom financially in this extrovert way—a way that will distort human behaviour and the ways in which applications to universities are made? I hope not.

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Moved by

[Lord Sewel]

26B: After Clause 14, insert the following new Clause—
“Nuclear Power
In Part 2 of Schedule 5 to the 1998 Act, under head D4 (nuclear energy) omit—“ExceptionsThe subject-matter of—(a) Part I of the Environmental Protection Act 1990, and(b) the Radioactive Substances Act 1993.””

[Lord Sewel]

My Lords, I hope that we can get through this in under 12 minutes and break the Foulkes record. Right at the beginning, I will come clean: this is purely a probing amendment, which means we can totally disregard the detail. I can only apologise if some poor civil servant somewhere has spent hours drafting notes on Part 1 of the Environmental Protection Act 1990 and the Radioactive Substances Act 1993. I am sorry, but that was my way of getting the issue on to the agenda.

Quite simply, the issue is my concern whether, at a time when energy security is one of the greatest challenges that we face, we have the appropriate legislative framework to enable the implementation of a strategic British energy policy. It would be totally inadequate to try to deal with the issue of energy security by fragmenting policy so that you have English, Scottish and Welsh energy policies. The task that we face is too great for that sort of small, narrow-minded approach.

Schedule 5 to the 1998 Act reserved virtually all areas of energy policy: electricity, oil and gas, coal and nuclear energy; there are a number of exceptions and they are in the original Act. There has also been a degree of executive devolution since then. The reservation of energy was done quite deliberately in 1998, with the view that strategic energy policy was best devised and implemented at a British level. The point that I want to explore with the Minister is whether we are still capable of implementing a strategic British energy policy. This is where I use the peg of nuclear: we have to take account of the specific contribution that nuclear power can play. We have heard from the Scottish Government that they will not be allowed to build new nuclear power stations in Scotland, and that is a major factor in the debate on energy policy. Is the Minister satisfied that the Scottish Parliament and Scottish Ministers have powers which would enable them to prevent the construction of nuclear power stations in Scotland and, if that is the case, is it really possible or credible to think in terms of British energy policy?

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[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.

[Lord Sewel]

I thank all noble Lords who have contributed. In reply to a point made earlier, I am not advocating a nuclear power policy for Scotland. I am advocating a British energy policy to deal with the issue of energy security. It cannot be done at the level of the individual component parts of Great Britain. We need to work together to have a policy covering the whole country.

I think that we are very reluctant to go too far on the planning point. But the noble and learned Lord will remember that the vires test in the 1998 Bill that left the House of Commons was not the same as the vires test that became the Act. Let me put it this way: that change was in part as a result of discussions that were very close to the type of discussion that we have had today. I beg leave to withdraw the amendment.

Amendment 26B withdrawn.

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Moved by

[Lord Sewel]

44A: Clause 20, page 14, line 6, leave out “the agreement of” and insert “having consulted”

[Lord Sewel]

My Lords, my mind goes back to consideration of the Scotland Bill in 1998. Some things are the same and some things change. What is the same is that now we are reduced to a relatively small House; what is different is that in 1998 our deliberations were at 2 am—when we used to carry on till that time—and now it is 6.45 pm. Nevertheless, as they say, I am sure that we will be able to make some progress.

The amendment deals with the appointment of what is called the BBC Trust member for Scotland. In olden days it used to be referred to as the “Scottish governor” of the BBC. At the moment the Bill says:

“A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment”,

and then goes on to explain. My amendment would take out “agreement” and put in “consultation”.

That is partly because of something that happened way back in 1974, when local government in Scotland was reorganised. I remember going to a conference of the good and the great, where the whole discussion was about the relationship between the two tiers of local government in Scotland, the regions and the districts. I remember a very distinguished civil servant at the time saying, “Given good will, the relationship between the two tiers of local government would work very well indeed”, and a grizzled chief town clerk—those were the days when we had town clerks rather than chief executives—saying that in his experience the last thing that you could count on in the relationships between local authorities was the existence of good will.

I am not daring to say that that typifies the relationship between the Scottish Parliament and the Parliament of the United Kingdom, or between Scottish Ministers and UK Ministers, but having an appointment that depends upon the agreement of two Ministers from different Parliaments and maybe of different political hues, as sometimes happens in this House, creates at least the opportunity—I put it no stronger than that—for mischief-making. In other words, it is possible to generate a major row or a clash over something relatively minor, so that what perhaps starts off as an irritant becomes a major issue of principle. Basically, let us avoid that; let us avoid creating a structure that offers that possibility.

By all means let us have consultation. My amendment would mean that the Secretary of State had consultation with Scottish Ministers. To be honest, I would prefer the Scottish Minister to have the decision rather than the Secretary of State, if we got away from the business of agreement. My first position is the Secretary of State and my second position is Scottish Ministers. I just want to avoid the opportunity—the invitation, almost—to create a fuss over something where it should not exist.

[Lord Boyd of Duncansby]

My Lords, there is an important point in what my noble friend says. The Calman commission recommendation was that:

“The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process”.

There is no suggestion there that it would be by anyone other than the Scottish Ministers. Perhaps in addressing my noble friend’s point, the Minister could also address the issue of why there has been a difference of approach in the Bill from that of the Calman commission’s report.

[Baroness Rawlings]

My Lords, I am most grateful to the noble Lord, Lord Sewel, for putting down his amendment as it gives me the opportunity to clarify Her Majesty’s Government’s view on this delicate point.

Clause 20 will make certain that the Secretary of State has to seek the agreement of Scottish Government Ministers in the process of appointing the BBC Trust member for Scotland. Currently, the Scottish Government are involved in the appointment process on an informal basis. The clause will formalise the involvement of Scottish Ministers in the appointment process and gives them the legislative basis to undertake their responsibilities in relation to the appointment process.

Under the terms of the BBC charter, the Trust member for Scotland must be qualified by virtue of his knowledge of the culture, characteristics and affairs of the people in Scotland and his close touch with the opinion of that nation. Therefore, we feel it is preferable that Scottish Ministers should have a significant role in agreeing the appointment. In answer to the noble Lord, it is highly unlikely that the situation would arise in which they would fundamentally disagree over the appointment of a candidate. If Scottish Ministers do not give their agreement to the proposed DCMS appointment of the BBC Trust member for Scotland, they would need to provide justification for that. Both sets of Ministers have the same interest in not wanting to leave the seat empty. The opportunity is primary for a member of a UK body—that is, the BBC Trust. Furthermore, broadcasting remains a reserved matter, something that the Calman report was very clear should remain the case, and we are following that principle. On this basis, the UK Government believe it is important to retain the ultimate responsibility for the appointment.

This amendment would place a duty on the Secretary of State only to consult Scottish Ministers in appointing the BBC Trust member for Scotland, rather than seeking their agreement to the appointment. It is our view that this does not give the Scottish Government sufficient involvement in the appointment process. Securing the agreement of the Scottish Government is the appropriate way of involving them in the appointment process for the BBC Trust member for Scotland. The existing provision gives the Scottish Government an important and appropriate power and the UK Government do not wish to weaken this. I hope that this satisfies the noble Lord, Lord Sewel, and I urge him to withdraw his amendment.

[Lord Sewel]

My Lords, this has been a short debate so I do not even have to thank anybody for taking part in it. I think this is one of those occasions where that well known double positive, which is in fact a negative, comes into play with reference to a fundamental disagreement between the two parties, to which the comment is, “Aye, that’ll be right then”. I very much think that there is indeed the possibility for that level of disagreement. I know that this looks likes an enormously trivial matter but I ask the noble Baroness at least to reflect on it because if we do not have a clear focus on where responsibility lies—that is, the relevant decision is taken by one person in consultation with another—I am afraid the Government may live to regret that state of affairs.

Eagle-eyed noble Lords will note that I ought to have tabled a similar amendment to Clause 21, which relates to Gaelic broadcasting. However, I did not do so because I was totally incapable of pronouncing the name of the organisation involved.

Amendment 44A withdrawn.