Scotland Bill

Lord Stephen Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I confessed that I knew nothing about it, but it seems a very sensible proposal. I have in the past suggested that because the Scottish Parliament sits only one and a half days a week, a solution to the West Lothian question would be that all Scottish Members of Parliament should sit in the Scottish Parliament for one and a half days a week and on those one and a half days the House of Commons could discuss those matters not related to devolved issues. This has not proved very popular with Members of the Scottish Parliament, for reasons that I cannot imagine. So in following the advice of the noble Lord, Lord Foulkes, they might protect themselves from being endangered by people like me, who might suggest that there were synergies in combining the roles of a Member of the House of Commons with a Member of the Scottish Parliament. I am sure that the Scottish Parliament will show considerable gratitude to the noble Lord in drawing this matter to public attention if, indeed, it has already got that Parliament rethinking its sitting days.

[Lord Stephen]

My Lords, I agree very much with the first contribution that the noble Lord, Lord Forsyth, made. This is essentially a matter for the Scottish Parliament, which has wide discretion in this area. Unfortunately, I cannot agree with the suggestions that he made in his most recent contribution. I agree with a great deal of what the noble Lord, Lord Foulkes, said. I am sure that others who have been in the Scottish Parliament, most notably my noble and learned friend Lord Wallace of Tankerness, also agree with a great number of his suggestions, most particularly about the guillotining of virtually every contribution made in the Scottish Parliament. The noble Lord is absolutely right; it is impossible to make a full and weighty contribution when the guillotine constantly comes after sometimes less than four minutes. These issues should be addressed, and I hope that in addressing those issues the Scottish Parliament will look to the contributions of former Members and those who have had experience of the Parliament. But I do not think that it should be as a result of an amendment proposed through the House of Lords that those matters are best addressed. I am sure that the Minister will explain that those matters are being looked at; I understand that there is a concerted effort to look at changing the way in which the Scottish Parliament operates. That is all the more important in the context of more powers being granted to the Scottish Parliament; as the Parliament grows and develops, these issues should be tackled, and the noble Lord, Lord Foulkes, made an extremely valuable contribution in pointing to the Parliament the way ahead.

[Lord Selkirk of Douglas]

If I may, I would like to ask a very brief question to the Minister in this connection. During the Calman commission, we recommended that more time should be given for the final stages of Bills in the Scottish Parliament. It seemed to us that with many Bills, voluntary organisations, charities or other worthy bodies would have recommendations to make but would get virtually no changes in the final stages of the Bill because procedures were so rapid and everything went so quickly. My understanding was that that was under consideration by the Scottish Parliament, and I wonder whether the Minister could give us the up-to-date situation on that subject, if he has the facts readily at hand.

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[Lord Wallace of Tankerness]

My Lords, it has been amply demonstrated by the remarks of the noble and learned Lord, Lord Boyd, that, as things currently stand, whole Bills can be delayed—possibly for months—should only a single provision be referred to the Supreme Court to determine whether it was within legislative competence. Section 33 of the Scotland Act 1998 contains a power to allow the law officers to refer Bills passed by the Scottish Parliament to the Supreme Court to determine whether they are within legislative competence prior to Royal Assent to the legislation.

The Scotland Bill provides the Government with an opportunity to re-examine this power. Indeed, as the noble and learned Lord indicated, the Calman recommendations encouraged a general sweep-up, and so within the Scotland Office and the Office of the Advocate-General we looked at all the different matters that had arisen and at where there were opportunities to amend, and some of these are reflected in other parts of the Bill.

It is very helpful that the Committee has been informed by the noble and learned Lord, from his many distinguished years of experience as Lord Advocate, as to how the process works. I should put on record from the UK Government’s side that officials in my department talk day in and day out to officials in the Scottish Government’s legal department on proposed Bills and orders to ensure that they come within competence. They discuss particular issues, and sometimes, when it is found not possible to get a solution under the legislation to be passed by the Scottish Parliament, orders under Section 104 of the Scotland Act can be brought forward to give effect to certain provisions. One sometimes sees headlines about the more controversial issues. We should not lose sight of the regular and valuable work done by officials in respective Governments to try and resolve many of these issues.

Likewise, officials within my department monitor Bills as they go through the Scottish Parliament. In a similar way to when the noble and learned Lord was Lord Advocate and during the 28-day period, these matters were looked at in my own department and ultimately referred to me to decide whether to refer them to the Supreme Court under Section 33. I share this thought with the noble and learned Lord. I recall from being a Minister when he was Lord Advocate the thoroughness with which that was done. Yet shortly after I took up office as Advocate-General, a case came before the High Court of Justiciary involving the competence of an order of lifelong restriction when someone had been convicted of an offence solely under the Firearms Act. That is of course a reserved matter. The question was whether the order was competent. The general view was that it was not, and ultimately the Crown did not defend the appeal. One of my officials said, “Who was the Minister who signed the original Bill as being competent?”. I had to hold my hand up, but I will not say who the law officer was who gave me that advice. It is fair to say that the other parts of the Bill stand with regard to the order of lifelong restriction and to offences that were either common law or related to devolved matters. That underlines the fact that a considerable amount of effort and work go into this.

With this clause, we sought to prevent unnecessary delays to Bills the majority of provisions of which are considered to be within the competence of the Scottish Parliament. In these circumstances, the affected Bill would be submitted for Royal Assent by the Presiding Officer, while the disputed provisions would not come into force until the Supreme Court had reached a decision and Scottish Ministers had made the appropriate commencement order.

As the noble and learned Lord indicated, this power has not been used to date. As I have indicated, that is testament to the engagement between the UK and Scottish Governments, both under the current Administrations and previous ones. We do not really need to be reminded of how much both Parliaments enjoy, particularly in the field of criminal justice, so-called Christmas tree Bills to which bits are added here, there and everywhere. No doubt there is a need to address some recent development, or some official remembers a particular problem that needs sorting out. It would be regrettable if a Bill whose provisions for the most part were well within competence had one particular clause thought to be outwith competence and that had to be referred to the Supreme Court for a determination that held up the whole Bill. We wish to address that issue.

The limited procedure that we propose seeks to do that. I will deal with some of the amendments before addressing some of the points raised by the noble and learned Lord.

[Lord Stephen]

Before moving on, might the noble and learned Lord at this stage or later in his remarks take the opportunity to refer to an issue relating to the SNP Government’s proposed referendum Bill, on which he will be aware of very clear legal advice to the UK Government? Given the current procedures and how they might be affected by the proposals in this Bill, what is his understanding of the position within the Scottish Parliament on involving the law officers in Scotland if the referendum Bill moved forward?

If law officers were to advise the Presiding Officer that the Bill, or any other piece of legislation—the noble Lord, Lord Steel, will have much experience in this regard—was not legislatively competent, would that advice become apparent at any stage? Need that advice become public in any way? This is a matter of huge interest at the moment in Scotland.

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[Lord Wallace of Tankerness]

I express the view of the United Kingdom Government; I shall leave it at that. There is good reason why the convention is there, and it has been quite rigidly adhered to by law officers of all Administrations, in Scotland and the United Kingdom generally.

The noble Lord, Lord Stephen, also asked about the legal advice given to a Presiding Officer. The Ministerial Code arrangements for that are clearly not the same. Off the top of my head, I could not say whether that legal advice would be made available or not, or what the response would be if someone wanted to FoI it. It might well be that it is advice given by a lawyer and that there are categories of exemptions for legal advice. It might be a matter that would end up in the courts—I am not going to express a view on it.

[Lord Stephen]

My point is that when my noble and learned friend and I were in government, I recall that we went to quite extreme lengths to make sure that a piece of legislation was within legislative competence. The noble and learned Lord, Lord Boyd, has already referred to those matters. Part of the hard work that was done was to ensure that a piece of legislation would get the approval of the Presiding Officer. My understanding was always that if there was a conflict with the Presiding Officer, we would work on the legislation and make sure that it was within legal competence, as defined by the Presiding Officer. From what has been said this afternoon, a Government can, as I understand it, in effect defy the ruling of the Presiding Officer and push forward with the legislation, and no one in the Scottish Parliament—indeed, no one in Scotland—would be aware that the Presiding Officer had been overridden. That is my understanding of what the noble and learned Lord, Lord Boyd, and my noble and learned friend indicated. I suppose the question is: in what way would it be known that, for example, the referendum Bill had been laid before the Scottish Parliament even though the Presiding Officer had not approved it as being within legislative competence?

[Lord Wallace of Tankerness]

Perhaps I can clarify for my noble friend that Section 31 of the Scotland Act 1998 is relevant in this regard. It states:

“A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament”.

Subsection (2) says:

“The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view”—

or in the case now, in her view—

“the provisions of the Bill would be within the legislative competence of the Parliament and state his decision”,

so the Presiding Officer has to state their decision as to whether it is within competence.

Let us take this away from the question of the referendum Bill, because our ambition here is not to get into that position; it is to reach an agreement, preferably on a Section 30 order. However, in general, the Presiding Officer has to decide whether the provisions of the Bill would, in their view, be within the legislative competence of the Parliament, and has to make that decision public. It is still the case that the Parliament could proceed to debate and process the Bill notwithstanding that, but there are obviously political ramifications. I could imagine some pretty lively debates if that was to be the case.

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[Lord Foulkes of Cumnock]

I treat the noble Lord, Lord Steel, as a friend of mine; in fact, he was at the party as well. He will not be coming to my 80th, that is for sure—no, that is a very good point.

It illustrates the absurdity of it all. When I was a Member of Parliament for Carrick, Cumnock and Doon Valley, which we considered a relatively safe seat, I had meetings all over the place. I produced literature and spent almost the limit to make sure that I got elected. In 1997, I ended up with the largest majority in Scotland as a result. We worked hard to get elected. It seems absurd, having worked hard year in, year out to get elected as a Member of Parliament in that constituency from 1979 to 2005, I just floated in easily to the Scottish Parliament. It is a strange system.

[Lord Stephen]

Not having been invited to the birthday party, can I, perhaps unfairly, point out that the voting system was to be proportional, which was agreed through the constitutional convention? The Liberal Democrats, as always, proposed a fair and appropriate system—the single transferrable vote in multimember constituencies. My clear recollection is that the Labour Party, in conceding a proportional system of election, was prepared to agree to anything except the system that was being proposed by the Liberal Democrats. Therefore, it was the Labour Party that devised the system that we now have in the Scottish Parliament. I would welcome it if the noble Lord, Lord Foulkes, and other members of the Labour Party were now suggesting a fairer system of proportional representation. Perhaps the noble Lord will give his backing to the single transferrable vote.

[Lord Foulkes of Cumnock]

I was commending the noble Lord, Lord Forsyth, and David Cameron earlier for not being party political in terms of support for the union and for not looking for party advantage. As the noble Lord, Lord Stephen, will find out, I am doing the same in relation to this. I will come to that in a moment.

We were told by the architects—it is coming back to me now. It was not the noble Lord, Lord Steel, who was guilty, but probably Henry McLeish who was the architect; he is the guilty person. If he is not, he is getting blamed for it now, but I am sure that he is.

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[Baroness Liddell of Coatdyke]

My Lords, I can put on the record now that right from the start of the discussions about the Scottish Parliament, I was opposed to the voting system. It got to a stage where the minute I came into a room, eyes would glaze over. As a consequence, I lost the ability to make my arguments. To some extent, my opposition was based on recognition of the difficulty of having regional list Members and the problems that it would create for individual constituency Members where you had someone who could helicopter into your constituency and cherry pick the issues. It makes it very difficult even if it is a member of your own party who is the regional list Member. It makes it very difficult to run a consistent service as an elected representative. Time after time I was told that I was old-fashioned and that I was being tribal. My heart told me that I wanted first past the post, because that was the way that my party would win; but my head told me that for a new system of government, for devolution, we had to find some other way of doing things—but I was extremely unhappy with AMS. As the Minister knows, that is parallel to the system which operates in New Zealand, where there has just been a referendum and, ironically, they have voted to keep it.

Having said that, I agree with my noble friend about the hotchpotch of systems and the problems caused by non-contiguous constituency boundaries. In a couple of instances, I may have been responsible for that because of decisions that I took as Secretary of State. You do not always get the opportunity to take the decisions that you would want to take. However, I am opposed to the proposal that my noble friend has put forward—not because I am opposed to the idea of a review, but because I think that when you have been comprehensively beaten in an election, you do not turn around and say, “We’ve got to change this”. I accept that the Government of whom I was a member could have done something about a review, and the coalition could have done something about a review before the Scottish Parliament elections. Frankly, however, I think that we have missed the boat. It would be interpreted as the unionist parties saying, “We was robbed”. We have just been saying that we must be absolutely certain that the referendum is fair and transparent and that the decision will be accepted by the majority, which is very important. I think that we have missed the boat.

[Lord Stephen]

Would the noble Baroness be prepared to take a different view if the Scottish Government were in favour of a review of the voting system? My understanding is that the SNP Government would prefer a different form of voting system, perhaps even one in line with the system that the noble Lord, Lord Foulkes, might be persuaded to back, and similar to the proposals set out by my noble friend Lord Steel. If that were the case, would it not fundamentally change the argument that she has just made?

[Baroness Liddell of Coatdyke]

I thank the noble Lord for that intervention. It would change my position. I would snatch off their hand if they proposed a review of the voting system. I would be surprised if they wanted to do it now when the voting system has so decisively played in their favour and they have developed a sophisticated strategy of ensuring that regional list Members forensically target seats where there is a prospect of winning. My former seat of Airdrie and Shotts, which used to be one of the safest in Scotland, now has a SNP Member of Parliament because of that very forensic, very clever targeting of constituencies and issues.

It is with considerable regret that I say to my noble friend that I do not think that this is the time for this House or this Parliament to call for a review, because it would be misinterpreted. However, it is not often that I get a chance to say I told you so. There are one or two people, who will not be listening now, to whom I said that. It is a case of I told you so.