Scotland Bill

Lord Wallace of Tankerness Excerpts

Thursday 26th January 2012 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the House do now resolve itself into a Committee on the Bill.

Amendment to the Motion

Moved by

--- Later in debate ---

The Prime Minister has announced that he has a respect agenda for Scotland. Would it be respectful to proceed with this Bill if the Scottish Parliament takes the view that we should not proceed with it? I ask this simply as a humble seeker after truth. I should say to my noble and learned friend that I am not going to read out all 45 recommendations, tempted as I am, but I have to say that if the Scottish Parliament is not going to debate them, surely we should not be debating them, or surely we should have answers from the Minister as to the Government’s attitude. Perhaps we could have a debate in the Moses Room, although it would be rather paradoxical if the unelected House of Lords—as the Leader of the Scottish National Party, the First Minister, Alex Salmond, insists on calling us—actually got round to debating a committee report that was dominated by his own party in the Moses Room.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

Without Moses!

[Lord Forsyth of Drumlean]

I do not think that Alex Salmond would like being compared with Moses. After all, Moses never got to see the Promised Land. However, on reflection, perhaps my noble and learned friend is right.

One other aspect of the consultation paper is that he wants to rig the franchise and give the vote to 16 and 17 year-olds. My researchers tell me that there are only nine countries in the world that give the franchise to 16 and 17 year-olds, two of which are North Korea and Cuba, both of which have leaders with a high opinion of themselves.

I am not noted for carrying a flag for the Scottish Parliament but, to be serious, there are some very important recommendations here, on some of which I have tabled amendments so that they can at least be debated. I do not agree with all of them, but some of them are perfectly sensible. For example, this Bill provides for the control of speed limits in Scotland to be devolved to the Scottish Parliament. I think that that is daft, because you would cross the border and suddenly there would be a different speed limit. But it has been agreed—it is in the Bill and I do not want to question it. However, the committee of the Scottish Parliament says that it should not give legislative consent unless the Government agree to change the Bill, which at the moment allows the Scottish Parliament to set the speed limits for cars but not for HGV vehicles. It seems a little odd that we are prepared to devolve responsibility for motor cars but not for HGVs. I have tabled an amendment to which I hope my noble and learned friend will give fair consideration at a later stage. There are other issues, too, which should be considered.

I know that my noble and learned friend is agog as to whether I am going to press this matter to a vote. In order to avoid having to do so, I have tabled an amendment on the issue of legislative consent which says that if within two months of Royal Assent for this Bill we have not had legislative consent from the Scottish Parliament to those provisions which relate to its responsibilities, then the Bill will fall, and only those provisions which do not require legislative consent will remain. I hope that my noble and learned friend, after the consultation period has been concluded, and given the evidence of a lack of good faith on the part of the First Minister, will consider amending the Bill to provide for a fair and proper referendum to be conducted. In those circumstances—if the Scottish Parliament did not give legislative consent—we would be left with a Bill that simply provided for a referendum. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I start by thanking my noble friend Lord Forsyth for moving this amendment. He questions whether I should—I think it has been very useful. I hope we will move into Committee, but it is helpful that that has been placed in the context of the current political debate. It is a very serious constitutional debate, not just for Scotland but for the wider United Kingdom, as other noble Lords, not least the noble Lord, Lord Empey, have indicated. The comments that have been made have helped to set that context.

I endorse what was said by the noble Lords, Lord Kerr, Lord Singh of Wimbledon and Lord Browne, about the importance of the tone of these debates. It is important that we conduct these debates in a very rational manner, putting and testing argument in a way that I think is typical of this House. The noble Lord, Lord Kerr, indicated that it was perhaps unfortunate that there are no Scottish National Party Peers here. I do not propose to answer for the Scottish National Party but I share his view. That is a decision that the party has taken. Our debates are possibly the poorer for it. Without embarrassing anyone by naming names, many of us can think of one or two Scottish National Party Members who would certainly add to the deliberations in your Lordships’ House. Of course, they might then be able to move some of the amendments on the recommendations of the Scottish Parliament committee. I know that my noble friend Lord Forsyth will move some of them. No doubt the business managers will have noted his comments about the Moses Room.

We certainly took on board the comments that had been made about the fact that it would not necessarily be desirable for Committee stage of this Bill to take place when there would still be live questions on amendments tabled in relation to the referendum on independence while the Government’s consultation was still outstanding. That consultation will close on 9 March. I am grateful to all who contributed through the usual channels that the House was able to agree a Motion on Tuesday, which has been widely welcomed, to enable our debates on Clause 10 to be taken last. At that time, I suggested to the House that any amendments relating to the referendum or independence should be best placed before Clause 10. Perhaps I may express my gratitude to noble Lords who have tabled, and in some cases retabled, referendum-related amendments before Clause 10 rather than to other parts of the Bill in order that we can fulfil the intention of the order of consideration that was put before the House. To repeat what I said on Tuesday, the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March, which will allow us to debate the referendum in the light of the responses received during the consultation period.

That said, we immediately found ourselves debating issues relating to the referendum and the consultation documents. While I am tempted to follow the noble Lord, Lord Browne, down the road of saying, “Well, perhaps it is not appropriate to discuss these”, I think that it would be only courtesy at least to address some of the issues that have been raised. However, quite clearly, when the House resolves itself into Committee and we reach the amendments that have been tabled in relation to a referendum, we will have an opportunity to discuss those issues at greater length and in more detail.

I am very grateful for the comments made by the noble Lord, Lord Browne, about the lecture I delivered at Glasgow University last week. I was able to confirm the very strong view of the United Kingdom Government that under the Scotland Act 1998 the Scottish Parliament does not have the legal competence to pass a referendum Bill. Things obviously flowed from that and we set out in our consultation why we believe that a referendum should be legal, fair and decisive, and the ways in which we might seek to do that.

It is fair to say that we have moved a long way in two weeks. First, I do not think that I had sat down in your Lordships’ House after having repeated the Statement before we had been given a preferred date by the Scottish Government for a referendum, for which many people had been asking for some considerable time. It appears to be the case that we have agreed that the preferred way to deliver the legislation for a referendum is by the two Governments working together. In their consultation paper yesterday, just as the United Kingdom Government expressed their preference for an order under Section 30 of the Scotland Act to take this matter forward, the Scottish Government indicated that their preference was for a Section 30 order.

Without going into the detail of the Section 30 order, I know that my noble friend Lord Sanderson expressed the importance of the role of the Westminster Parliament in constitutional issues. Of course, a Section 30 order not only has to be approved by the Scottish Parliament but has to be approved by both Houses of this Parliament, which means that, assuming we can make progress, any order which we would wish to bring before the House is one which this House would have an opportunity to consider. Clearly, that will be in mind as these discussions take place.

[Lord Forsyth of Drumlean]

Perhaps my noble and learned friend can help me on one point. He has been very generous in agreeing to reschedule the consideration of the Bill in order to accommodate the timetable of the Government’s consultation paper. Will he say something about how he proposes to deal with the problem created yesterday by the Scottish Executive’s consultation paper, which has a timetable that takes us beyond the period probably of this Session and therefore our ability to consider the Bill? How do we resolve that?

[Lord Wallace of Tankerness]

I was going to deal with that matter later. The noble Baroness, Lady Liddell, also made reference to the possibility of carrying over the Bill. Certainly, it is my understanding that the normal process for carrying over legislation is that it has not passed to the second House for consideration. Page 642 of the 24th edition of Erskine May states that,

“carry-over is restricted to Bills which have not yet left the House in which they originated”.

Therefore, to try to carry over this Bill would mean not so much carrying over but effectively starting the process again, which would significantly delay implementation. That is why I believe it is right to continue with the current timetable and I will come on later to explain why. It is important that we make progress on that.

My noble friend Lord Forsyth mentioned the fact that, as we are well aware, the consultation paper was published yesterday. The point is that the UK Government’s consultation paper indicates that while our preference is for a Section 30 order, there is also the possibility of using this Scotland Bill. Clearly, if we are to get this Bill passed in the current Session, it would not be possible to put it off indefinitely. I note that paragraph 1.7 of the Scottish Government’s consultation paper states:

“The UK paper sets out two possible mechanisms to transfer the power to hold a referendum on independence: an Order in Council under Section 30 of the Scotland Act 1998, or an amendment to the Scotland Bill currently under consideration by the House of Lords”.

It does so without any implied criticism. It just states that as a fact. We would wish therefore to make progress, although it is important for us to indicate that, but for the fact that my right honourable friend the Secretary of State for Scotland has been stricken down with chicken pox, there would have been a meeting tomorrow between him and the First Minister on these matters. Unfortunately, it cannot take place tomorrow but we are very keen that it should take place—I do not think the First Minister is keen that it should take place while the Secretary of State has got chicken pox—as soon as possible. It is a welcome sign that that engagement is happening.

I will reflect on the points made by my noble friend and others about the role of the Electoral Commission. However, the UK Government have made it very clear that we believe that the Electoral Commission is a proper body to have oversight of the referendum, not least given its track record in monitoring referendums since its inception. We are clear that that is our preference.

A number of noble Lords raised whether the question proposed by the Scottish Government is fair. We will certainly wish to consider the consultation document carefully but we believe, as set out in our consultation paper, that the Electoral Commission should have a statutory role to review and to comment on the question. As others have pointed out in the press today, it is not immediately clear from the Scottish Government’s document that they propose that the Electoral Commission will have that role. I understand that the First Minister has indicated that this may have been an oversight of the document but we will obviously pay close attention to that. Clearly, it would be part of the substance of discussions.

[Lord McConnell of Glenscorrodale]

The Minister advised that at some stage, perhaps not today but in the future, that process could involve looking at a variety of ways of posing the choice. Over the past few decades, it has not necessarily been the case in the United Kingdom that all referenda have included questions that had a yes or no answer. There have been referenda which posed a choice. I should like the Electoral Commission to be able to look at a variety of possibilities and not just those that have been chosen in more recent times.

[Lord Wallace of Tankerness]

I recall the kind of situation that the noble Lord, Lord McConnell, suggests. That emphasises that the Electoral Commission does have an important role to play. I cannot answer his specific question today, but it underlines more generally the important role of the commission. Further, as I have indicated, this will be a matter for discussions with the Scottish Government.

I have made the point that these discussions are taking place, but my noble friend also raised the question of what we should do with the Bill pending a legislative consent Motion in the Scottish Parliament. As the noble Lord, Lord Browne of Ladyton, reminded us, the Scottish Parliament expressed its general support for the Bill, subject to some detailed concerns, in a vote in March 2011. Of course, the Scottish political landscape has changed since then, but as he rightly reminded us, those voting for the resolution included many Members of the current majority party in the Scottish Parliament, including the First Minister himself. He also indicated that there has been a response from the UK Government to the points made in the legislative consent Motion, specifically that provision has now been made in the Bill to allow bonds to be introduced in the future without the need for further legislation. There is a provision in the Bill to allow for reciprocal consultation between Governments in relation to electoral matters; provision to provide Scottish Ministers a role in the appointments to MG Alba; and provision to give Scottish Ministers responsibility for the disqualification rules for the Scottish Parliament. Obviously we will come to discuss Clause 17 at the next sitting of the Committee, if we get that far, which in a number of important respects is a response to the review undertaken by the noble and learned Lord, Lord McCluskey, at the request of the Scottish Government. So there have in fact been numerous comprehensive responses to the previous LCM.

I can assure the House that we are considering carefully the latest Scotland Bill Committee report. Its timing is clearly not a matter for the UK Government, but I can confirm that we are in continuing constructive discussions on the Bill with the Scottish Government. It might be premature to table a legislative consent Motion when these discussions are ongoing. I do not particularly want to say anything that might prejudice those discussions, but I can confirm that they have been happening on a constructive basis, and I hope that they will provide us with a way forward.

My noble friend Lord Maclennan asked about our response to Miss Fabiani, who is the convenor of the committee. I can confirm that on 20 January the Secretary of State wrote to her and again made it clear that constructive discussions are under way. He also indicated that in addition to reviewing the report of the Scottish Parliament, the Government would have to have regard to comments and contributions made in your Lordships’ House on the Bill. I think I am right in saying that the letter contained a paragraph which reminded the convenor of the Scotland Bill Committee that the Government do not have a majority in this House, and therefore we could not necessarily guarantee that any particular amendments would be carried. However, I hope that I can reassure noble Lords that there is constructive engagement on this.

It is also fair to say, as the noble Lord, Lord Browne, pointed out, that there is no clear timetable about when in the progress of a Bill a legislative consent Motion is passed. As I indicated, one was passed in the Scottish Parliament last March, which certainly meant that it was done before Report stage in the House of Commons.

[Lord Forsyth of Drumlean]

I have considerable respect for my noble and learned friend, and perhaps I may ask him to answer a straightforward question. In the absence of a legislative consent Motion, will the Government proceed with the Bill to Royal Assent, and implement it; or is it their position that without a legislative consent Motion, the Bill will not go ahead? It is important that Members of the Scottish Parliament know the score. As the noble Lord, Lord Browne, said, if one were a Member of the Scottish Parliament who, like the First Minister, was publicly committed to the Bill, one would not want to do anything that might prevent it getting on to the statute book. The fact that the committee report has not even been scheduled for a debate in the Scottish Parliament, when we want to take account of what it has to say, is an affront to democracy—which might be a strange thing to say in this unelected House.

[Lord Wallace of Tankerness]

My Lords, I sought to indicate that if discussions are going on, it might be premature to go ahead with a legislative consent Motion. That could prejudice the discussions when in fact there is an opportunity for agreement. I do not want to say anything that might be seen as a threat and jeopardise the position, as that would not be helpful to the process. We want to achieve a process in which a further legislative consent Motion can be passed by the Scottish Parliament, and I do not wish to say anything in the debate to prejudice that. I say that particularly as an engagement has taken place. However, as the noble Lord, Lord Browne, made clear, many powers that will be available in this Bill are ones that the Scottish Government have been calling for. The recently published document on infrastructure planning is actually predicated on carrying forward to fruition the borrowing powers which the Bill makes available.

[Lord Forsyth of Drumlean]

I am sorry to press my noble and learned friend. I am asking not about the negotiations but about the constitutional position. So far as the Government are concerned, is the constitutional position such that they will not proceed to put this legislation on to the statute book in the absence of a legislative consent Motion—or might they? I do not wish to prejudice the negotiations but I do want to have clarity on the status of legislative consent Motions. The noble Lord, Lord Sewel, gave us his view. I want to know the Government’s view on the status of legislative consent Motions. The Motions apply not only to the negotiations on this Bill but to Section 30 orders.

[Lord Wallace of Tankerness]

My Lords, the point on Section 30 orders is clear—it is in statute. Statute law requires the consent of the Scottish Parliament and of each House in this Parliament. A convention is just that, a convention; it is not enshrined in statute. However, as the noble Lord, Lord McConnell of Glenscorrodale, said, if a convention has been operating for a period, you have to be careful about how you deal with it. I am not going to say anything today that might prejudice the way in which that convention is dealt with. Equally, although there is a legislative consent Motion outstanding, I very much hope that there will be a further one to which the House can have regard before we reach Report.

I shall come to the question asked by the right reverend Prelate in a moment. However, we may well have completed the Committee stage before we have the report of the Scottish Parliament committee. At one stage it seemed possible that we might receive it but, for reasons of timing, that has not happened. There is certainly nothing sinister about it, and I do not think that the Scottish Parliament necessarily expects that we would hold back our deliberations in Committee until the legislative consent Motion had been tabled and debated. I know that the noble Lord, Lord Sewel, is desperate to intervene.

[Lord Sewel]

I thank the noble and learned Lord for giving way. So far as I can remember, and I may well be wrong, a legislative consent order can be passed at any time up to immediately before the last amendable stage of a Bill in this Parliament.

[Lord Wallace of Tankerness]

That accords with my recollection. Given the limitations on amendments tabled at Third Reading in your Lordships’ House, I am not going to get into a discussion on whether it would be before Third Reading or before Report. However, that—as enunciated by the noble Lord, Lord Sewel—accords with my understanding of the convention.

It is also important to note what has been noted by a number of contributors to this debate—that not only has the Bill been passed by the elected House, its content was included in the 2010 general election manifestos of the Labour Party, the Liberal Democrats and, substantially, the Conservative Party. Each party which had been party to the Calman commission process made a commitment in its respective manifesto to take it forward. It is quite a rare event in politics to be criticised for implementing your manifesto commitments. It rather stands things on their head if for some reason you are criticised for actually doing what you said you would do.

The noble Lord, Lord Browne, asked me as a member of the Calman commission—I suppose that my declaration of interest will apply throughout these proceedings—what response the commission received. I think that it is fair to say—there are other members of the commission present in your Lordships' House today—that we were not inundated with suggestions about where the boundary between devolved and reserved matters should fall. Many of the representations that we did receive—there were not a particularly large number—are reflected in the Bill before us. However, it was strongly represented to the Calman commission that the 1998 Act would have to be revisited because of the lack of financial accountability of the Scottish Parliament. That was understood when the Act was passed. We have had since 1999 a Parliament that has had complete discretion over how it spends the money it receives but precious little responsibility for raising it. I think that my noble friend Lord Steel said in a Donald Dewar lecture that a Parliament that was 100 per cent dependent on its revenue from another Parliament would have to address that issue. That is what we seek to do in the Bill. As the Calman commission proposals have been around since 2009—they elicited a White Paper from both the previous and the present Administrations—I suspect that many of them, to some extent, have already been banked. However, as the noble Lord, Lord Browne, indicated, these are very substantial proposals that should not be minimised. They will give to the Scottish Parliament a degree of financial accountability that does not exist at the moment. That is one of the reasons why we want to make progress.

The right reverend Prelate asked about the overlap of the Scotland Bill and a referendum campaign. I think it is fair to say that it has been known since last year’s election, and before the Commons debated the Bill on Report, that we would have a referendum campaign at some point. That is something that we have to take account of but it has not suddenly come up. It was clear in the Second Reading debate that we would go into a referendum campaign at some stage. However, the Bill’s powers are substantial and we should continue to make progress with it.

The noble Lord, Lord Empey, raised some important issues about the referendum campaign that will have to be debated, as the substance of that independence debate, once the process is resolved. I think that many of us look forward to engaging in that debate and making a positive case for Scotland being part of the United Kingdom. The noble Lord, Lord McConnell of Glenscorrodale, warned that the First Minister was perhaps taking the view that the way to get rid of bad tenants is for them to annoy the neighbours. It is a good analogy up to a point, but the point is that we are not tenants. We helped to build the house and we co-own it. That is why the union is so valuable to us.

My noble friend’s Amendment 85 will allow us to return to these matters later in Committee. As I indicated earlier, although the Scottish Parliament has considered the Bill, your Lordships' House should be able to consider it in detail too. I am conscious that there are a number of your Lordships present who were here during the debates in 1998. I think that those debates well served the Scotland Bill, which became the Scotland Act 1998. The kind of deliberation that your Lordships can bring to a constitutional measure such as this is an important part of the process. I encourage noble Lords to continue deliberations on the Bill, and I hope that we can now proceed to do so in Committee.

[Lord Forsyth of Drumlean]

My Lords, we have had a really good debate. My view that the debate would take half an hour has not worked out entirely right—we have had two hours and 17 minutes of debate. It is fantastic that we have had such a turnout given that the debate was scheduled for the Thursday after Burns Night when many of us would have been in Scotland and perhaps not as bright and breezy as people obviously were this morning.

I do not propose to respond to all the points but I thank everyone who contributed to the debate. I am not sure whether I should thank the noble Lord, Lord Foulkes, for praising me for acting against my party interest in taking the view that I do on the union. Being serious, I think that we all recognise that the future of the United Kingdom is an issue that is above party, as this debate has demonstrated.

My noble friend Lord Sanderson talked about competition between consultation papers. Although I believe in competition, in this case it may have led to a certain disorder in the marketplace. It is really disappointing that the idea of carry-over proposed by the noble Baroness, Lady Liddell, cannot work, because that would have been a solution. I have to say to my noble friend Lord Sanderson that the last thing we want is another Bill to deal with a referendum in the next Session of Parliament, when we will by all accounts have to deal with the future of this House, which I think will take on considerable time and turbulence.

The noble Lord, Lord Wigley, is right to be concerned about language, but I just ask him to spend half an hour on the internet looking at what the cybernats write about many of those who have spoken in this debate. If he could convey those views about language to them, it would be very much appreciated.

The noble Lord, Lord Kerr, argued that it was important that there should be nationalist Members in this Chamber in order to put their point of view, but he seemed to have a bit of a wobble when I suggested that UKIP might be treated in the same manner. The right reverend Prelate the Bishop of Chester made the key point that it is important that this debate is seen to be carried out respectfully. That means that the consent of the Scottish Parliament is fairly important, a point made by the noble Lord, Lord McConnell. He criticised the Prime Minister for intervening perhaps a little late in the debate. That might be a fair criticism, but I do not think that any of us could have expected the First Minister to have made quite so many changes so quickly in response, so perhaps we have caught up with a timetable that would otherwise have applied.

The noble Lord, Lord Hughes, who I believe celebrated a major birthday recently, and who has a long experience in these matters, reminded us of the—I shall be careful with my language—flexible view on devolution which the First Minister has taken. He has been against it; then, in 1998, he campaigned with the Labour Party for it; then he went back to Scotland in 2004 and denounced devolution as a disaster; and now he is the high priest of devo-max, because nobody else seems to be talking about it.

I have great sympathy with the noble Lord, Lord Sewel. He shares with the noble Lord, Lord Barnett, the fate of having something named after him which he is going to spend the rest of his life denying any responsibility for.

It was very important to have the contribution of my noble friend Lord Steel, who was the first Presiding Officer of the Scottish Parliament. Of course, in the original Scotland Act, it was thought that the electoral system had been designed so that no one party would be able to get a majority, and that it was unnecessary to have a House such as your Lordships' House to be a check and balance against the Executive, because the committee system would ensure a balance. Well, it has now turned into almost a one-party Parliament. The nationalists have a majority in the committees and there is no check and balance. Therefore the role of this House is even more important. The fact that the current Presiding Officer was taken from the same party underlines the lack of sensitivity to the point so well made by my noble friend.

In his address, the noble Lord, Lord Empey, reminded us of how important it is to get these matters right, and that the balkanisation of Britain is a matter that concerns every part of the United Kingdom.

My noble friend Lord Maclennan reminded us that absence of consent is not acceptance. I agree. The noble Earl, Lord Mar and Kellie, referred to the absence of the SNP as Banquo’s ghost. I plead with him to find another analogy because, of course, Banquo’s successors inherited the crown.

Finally, in an excellent speech—I hope this is not damaging for him—the noble Lord, Lord Browne, set out the answers. He reminded me of what the noble and learned Lord, Lord Irvine of Lairg, said about the West Lothian question in response to my pressing him on where we were on the legislative consent Motion—a view which was echoed by my noble and learned friend in his excellent reply—which was that, with some questions, the answer to the question is not to ask the question. So on the basis that we do not ask the question now and make progress in the interests of what I accept is the democratically expressed views of the Scottish people, I beg leave to withdraw the amendment.