Lord Wallace of Tankerness
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Scotland Bill
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank the noble Lord, Lord Browne, for using the clause stand part debate to allow us to explore and examine what is intended by this clause and, indeed, what is not intended. I also thank my noble friend Lord Lang. I assure him that it was not my intent to try to stop him speaking. I think he knows full well that we genuinely expected the previous debate to be somewhat shorter than was the case. He is absolutely right to say that it was good that we started with a lengthy but very good debate which allowed numerous views to be expressed. It may well facilitate our consideration of these clauses.
This clause transfers to Scottish Ministers certain of the executive functions that are currently the responsibility of the Secretary of State relating to the administration of Scottish Parliament elections. It will enable Scottish Ministers to make general provision by order for the conduct and administration of elections to the Scottish Parliament, the questioning of such an election and the consequences of irregularities. The noble Lord, Lord Browne, asked me to be more specific about what the powers confer and what continues to be reserved. In the same spirit, my noble friend Lord Lang asked for some reassurances. As I have indicated, the Bill will transfer to Scottish Ministers some of the executive functions that are currently the responsibility of the Secretary of State. There is no corresponding widening of the legislative competence of the Scottish Parliament although, obviously, it will have a role in approving the subordinate legislation made by Scottish Ministers. So it is executive devolution rather than legislative devolution.
Specifically, Scottish Ministers will be able to make provision by order as to the conduct of Scottish Parliament elections, the questioning of such an election and the consequences of irregularities. This power includes making provision about the supply or otherwise dealing with the electoral register, the combination of Scottish Parliament elections with other elections falling within the legislative competence of the Scottish Parliament—the most obvious one being local authority elections—as well as the limitation of candidates’ election expenses. However, elements of the powers will remain the function of the Secretary of State: the franchise and the combining of Scottish Parliament polls with polls at other reserved elections. This will ensure that issues of constitutional importance continue to be dealt with by the UK Parliament.
I hope that reassures my noble friend that, because of its constitutional importance, the franchise will be reserved to the United Kingdom Parliament. He referred to 16 and 17 year-olds being able to vote. Such a situation is purely hypothetical. However, having different franchises for different elections held in a combined poll may not be as anomalous as my noble friend thinks. If a local election were held in a combined poll with a Westminster election, while he and I would have the ability to vote in local elections we would not be allowed to vote in a Westminster election, so you can already have elections which could be combined on the same day with a different franchise applying in each.
As regards the referendum, I remind my noble friend and, indeed, the Committee that the preference expressed by the United Kingdom Government in our consultation paper was that the franchise of the electorate for any referendum on Scottish independence should be that which applies at the Scottish Parliament elections. That same franchise applied at the 1997 referendum. We take the view that, if it was good enough to elect a Scottish Parliament in May last year, it is appropriate for a referendum.
In addition, the Secretary of State will retain the powers to modify the application of Section 7(1) of the Scotland Act, which sets out the modifications to the calculation of the regional figures which are made when a constituency poll is countermanded or abandoned, and to modify Section 8(7), which sets out what happens when the highest regional figure is the regional figure of two or more parties or individual candidates. This is about the election to the Scottish Parliament rather than an administrative part of it. It is about the election itself. That is why we have considered it appropriate to continue the reservation. The Secretary of State will also retain the power to make provision for the return of members of the Parliament otherwise than at an election.
The B3 reservation—that is, elections to the United Kingdom, European and Scottish Parliaments and the franchise at local government elections in Schedule 5 of the Scotland Act—will remain unchanged. The noble Lord, Lord Browne, asked whether that would lead to the fragmentation which the Gould report raised concerns about with regard to the operation of the 2007 Scottish and local government elections. All responsibilities for the effective conduct of a Scottish Parliament election are being handed over to the Scottish Government. I have indicated the nature of the functions being retained, which relate to the framework under which those elections are run—for example, the franchise and the electoral registration system—or to the reserved elections such as the parliamentary elections. We believe that the difficulties encountered in 2007 were the result of a unique combination of factors that is not expected to arise again.
It is fair to put on record that the 2011 elections were well administered, notwithstanding the fact that it was a combined poll with the AV referendum. That is to the credit of electoral administrators, who are now better co-ordinated through the electoral management board that both the UK and the Scottish Governments support. If one were to change the rules with regard to electoral registration and devolve that, you could then get fragmentation because you could possibly find yourself with different rules for electoral registration for Scottish parliamentary elections and for Westminster elections. I think we are agreed that, although the franchise may be different for each of these elections, it makes sense to have the one canvass subject to the one set of rules for electoral registration.
The noble Lord, Lord Browne, in referring to the previous report of the Scottish Parliament, asked about disqualification from membership of the Scottish Parliament. Section 15 of the Scotland Act allows Her Majesty to specify, by Order in Council, various office-holders who are disqualified from membership of the Scottish Parliament. At present, Scotland Office Ministers are responsible for preparing the draft legislation and presenting it to Her Majesty in Council, but it must first be approved by the Scottish Parliament. Clause 16 has been added in response to the legislative consent Motion in March last year, and will pass responsibility from Scotland Office to the Scottish Government, although the requirement for approval by the Scottish Parliament will remain.
We believe that devolving the elements of responsibility for the administration of elections as I have outlined is consistent with the Calman commission’s principle that these matters should be decided at a level closest to those affected, unless there are good reasons for determining them at a UK level. I have sought to try and make the distinction in respect of constitutional matters and where, in terms of electoral registration, it makes sense to get consistency across the United Kingdom.
Lord Sewel
Perhaps I may make one point. I do not want to keep on bringing the debate back to the present First Minister, but he has made clear over the years his animosity and antipathy towards this House. Would it therefore be possible under the arrangements that have been outlined for the Scottish Parliament to disqualify Peers from being Members of the Scottish Parliament? That would be a great shame because a number of Peers have distinguished themselves as MSPs.
Lord Wallace of Tankerness
No, my Lords, that would not be possible, as eligibility matters will remain reserved. I hope that on the basis of what I have indicated—
Lord Browne of Ladyton
I am grateful to the noble and learned Lord for giving way. From the way in which his voice changed, I had the sense that he was moving towards a peroration.
I am beginning more clearly to understand this division. I understand the difference between the framework within which the elections are conducted, as opposed to the administration; and I understand the difference that I imposed on this debate between the electoral system and conduct. I should be grateful if the Minister would go through the list that I gave—at some stage, if not now. Perhaps he may write to tell me where at least two of those matters lie. One of them may be straightforward and we will come to an amendment on it shortly, one hopes—the procedure and framework for filling regional MSP vacancies—but where does the abandonment of a constituency poll or notice of it to be countermanded lie? Those two matters concern me and I will ignore the other two. I should just like a reassurance that beyond the list that I gave there are no matters other than those the noble and learned Lord has identified.
Lord Wallace of Tankerness
My Lords, I will certainly write to confirm, but I can seek to indicate that the rules regarding the regional list will remain reserved to the Secretary of State. On the abandonment of a poll, my understanding is that the issue in question is not so much with the abandonment of the poll itself but where that leads to a difference in the calculation of the regional vote. It is that calculation that would be affected if there was an abandonment of a poll in a particular constituency. I am seeing nods that I have actually got it right. That is the substance of this reservation. I will confirm that, but I hope that that has been a sufficient explanation to the noble Lord.
Lord Wallace of Tankerness
My Lords, in introducing his amendment, the noble Lord, Lord Foulkes, has given us an opportunity to look at a number of the issues that have arisen with regard to the operation of the electoral system. As my noble friend Lord Steel said, when we were legislating in 1998 it was not really possible to foresee all the implications and consequences of it. Therefore, we have had a useful opportunity to highlight a number of the issues and concerns that have arisen.
As the noble Lord, Lord Foulkes, says, Amendment 1 identifies a lacuna, which, to be fair, I am not sure has been highlighted very much in the past. My noble friend Lord Steel pointed out a variation on that with regard to the role of the Presiding Officer, who gets elected on a list basis as opposed to a constituency basis. Perhaps I may add that Mr George Reid did not stand again so the issue did not arise, whereas Mr Alex Fergusson always indicated that he would seek to stand again as a Conservative. No doubt he would have had to win the nomination of the Galloway Conservatives. It may also be said that it would have been open to my noble friend Lord Steel to have sought again to put his name forward in the Liberal Democrat list for Lothian. Although I did not live in Lothian, had I done so I certainly would have voted for him.
The noble Lord, Lord Foulkes, has raised an important point. No doubt with some work he has found an interesting way to address it. As he properly says, currently a seat vacated by an individual candidate who was returned as a regional Member remains vacant until the next general election. The noble Lord proposes that a poll is held across the whole region to select a new Member. Calculations would ensue upon that—he set that out very clearly and I do not propose to repeat it—to identify who would succeed.
The noble Lord is right to point out that a regional seat vacancy has not yet been caused by an independent Member vacating one. I share his view. I bear no ill will towards Mrs Margo MacDonald for being the only independent Member. Not only do I bear her no ill will but I think that everyone who knows her would take the opportunity to wish her well. My experience is that she has always made a very robust and independent contribution to the deliberations of the Scottish Parliament, and long may that continue, although we do not always agree with her.
We should remember that voters continue to be represented by their constituency MSP and several regional MSPs. It is an important issue, which, given that it is novel, I would wish to look at. If we did anything, it would be important that it commanded consensus among all the parties because it is an important part of our electoral system. To commit from the Dispatch Box without having taken proper soundings among all the parties would be inappropriate, but I hope that we can get an opportunity to take soundings to see whether this gap can be plugged, and plugged suitably to take account of the position of a Presiding Officer as well.
The other amendment moved by the noble Lord, Lord Foulkes, would allow candidates to stand for both constituency and regional polls, and both he and my noble friend Lord Steel indicated some discontent from their own experiences with the current system. The noble Lords, Lord Foulkes and Lord Browne, quoted from the Arbuthnott commission, which stated that it was,
“not convinced that there is any evidence to support the claims made regarding these perceived problems. There is no survey evidence to suggest that dual candidacy is an issue for voters, or a disincentive to their participation in the political process. Few of our consultation responses raised dual candidacy as an issue, nor was it raised spontaneously in our focus groups”.
I am certainly aware from my time in the Scottish Parliament that colleagues representing Orkney would find that not many regional list candidates would bother to get that far, although occasionally it was quite useful to have regional-list MSPs in order to pass on some of the more difficult cases. If a constituent was clearly not satisfied with what you had done on their behalf, and you would be surprised if anyone would be able to satisfy them, it was always useful to have another seven MSPs with whom you could share the burden.
That said, this would be a significant change to the system for electing Members of the Scottish Parliament. The question was raised with regard to Wales—my noble friend Lady Randerson and the noble Lord, Lord Wigley, are in their places. My understanding is that objections were raised by three of the four main political parties in Wales when this was brought forward. The noble Lord, Lord Foulkes, asked me to explain why this position arises. In our debate before we went into Committee I was asked at one stage to explain the policy of the Scottish National Party, and now I am being asked to defend the position that was brought about by the previous Labour Administration, of which the noble Lord, Lord Browne, was a most distinguished member. It actually arose from a proposal in the White Paper, Better Governance for Wales, published in June 2005. It is fair to say that there is no reason why the position in Scotland should be the same as that in Wales. There is an automatic assumption that the systems are always going to be the same, but I think it is reasonable to say that there can be variations tailored to suit particular requirements in different parts of the United Kingdom. I do not think it follows that because Wales has not gone down the route, Scotland should not do so either.
The noble Lord, Lord Foulkes, indicated that a later amendment of his would propose a general review of the electoral system. He will be aware that the Government have stated their intention to consider what has been said about a review of the electoral system in the reports of both the Calman commission and the Arbuthnott commission. There is obviously some support for this in some quarters, but it would be possible to take forward such a review only with the full support of the Scottish Parliament as well. The Committee will be aware that quite a number of consultations are under way. The most crucial one at the moment is on the referendum, and in a moment I will deal with the amendment spoken to by the noble Lord, Lord Browne, on the coincidence of election dates. The Government are committed to looking at the issue of fixed-term Parliaments and whether the Scottish Parliament should move to fixed terms. That will generate another consultation. Perhaps this is not the most appropriate and propitious time to start a review of the electoral system, although I repeat that the Government have indicated their intention to consider a response to both Calman and Arbuthnott on that point.
The amendment moved by the noble Lord, Lord Browne, seeks to allow the Scottish Parliament to move the date for parliamentary elections by up to 12 months either way when it falls in the same year as either an early UK general election or a European Parliament general election, so long as the new date is not within six months of either of those elections. He mentioned that when this was debated in the House of Commons, there was more of a focus on the then quite likely coincidence of a Scottish and a Westminster election in 2015. I moved an amendment during the passage of the Fixed-term Parliaments Bill through your Lordships’ House that changed the date of the next Scottish election so that such a clash would not occur. The Government are already committed to carrying out a detailed assessment of the implications of the two elections coinciding on the same day and to consult on the possibility of moving permanently to five-year terms for the Scottish Parliament. We will make a more detailed announcement of our plans in due course.
If any future consultation is in favour of moving the Scottish Parliament to five-year terms, that would solve the problem of a clash with both scheduled UK elections and European parliamentary elections, as all three will then be on five-year cycles scheduled for different years. That said, there will always be a risk that an early UK general election could reintroduce a clash of dates due to the resetting of the parliamentary timetable. However, if there are concerns about that happening, I hope the noble Lord will agree that that would be an important issue to raise in the context of a consultation on moving to a five-year fixed term for the Scottish Parliament, as we intend to do.
We are committed to considering a change to the length of the term of the Scottish Parliament. It is an appropriate concern for the noble Lord to have raised, but I hope he would agree that this Bill is perhaps not the place to deal with it. However, it is germane to the consultation that is about to take place. That would be the appropriate place in which to consider it. In these circumstances, I hope that noble Lords will not press their amendments.
Lord Foulkes of Cumnock
My Lords, as always, that was a really helpful reply from the Minister. We are now getting used to helpful replies from the noble and learned Lord, Lord Wallace, for which I am grateful.
I was hoping that he would answer the question which the noble Lord, Lord Evans of Temple Guiting, did not. I was sure that he would have had exactly the same brief from the excellent civil servants the noble Lord, Lord Evans, had, and that it would not be too difficult for him. As it turned out, it was not, so I am grateful to him for explaining it.
As I said in my introduction to the amendment, I am a little equivocal about it anyway. Perhaps I may return the flattery that I received from my noble friend Lord Browne of Ladyton, whom I thank for his kindness. Now one or two people will ask me why they were not invited to the party, by the way; that is the only problem that I have. My noble friend explained extremely well why we should leave it to the political parties and wait for the promised wider review of the electoral system. I understand also that my right honourable friend Mr Peter Hain is suggesting that Wales should move back to first past the post elections for the Welsh Assembly, which seems like a wonderful idea for those of us who are Neanderthal first past the post supporters—so there is even discussion there. Therefore, I shall not press Amendment 16.
I do feel strongly about Amendment 1, because this matter should be sorted out. I am grateful to the Minister for his reply. As I understood it, he said that he would take the matter away and consult other parties, and that if there was some consensus he would come forward with an amendment on Report. He is nodding, so I am not jumping to conclusions. On that basis, I am quite happy to withdraw my amendment.
“(1A) Subsections (2) to (11), except subsection (9), apply also to the power of the Scottish Ministers to make an order under section 12.””
Lord Wallace of Tankerness
My Lords, Section 113 of the Scotland Act 1998 makes provision about the scope of subordinate legislation powers in that Act. Clause 3(1) of this Bill amends Section 113 of the 1998 Act so that it also applies to Scottish Ministers’ new powers to make subordinate legislation about the administration of Scottish Parliament elections under Section 12 of the 1998 Act.
The amendment replaces Clause 3(1) with a provision that has the same effect and restructures Section 113. This is intended to make it easier for provisions in this Bill or in future legislation to provide that Section 113 applies in relation to other powers that may subsequently be conferred on Scottish Ministers. I beg to move.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friend Lord Steel. I can indeed confirm that he made representations to the Calman commission on this point, not least in the light of his own experience. His proposal was supported by the then Presiding Officer of the Scottish Parliament, Alex Fergusson, and therefore the Government were happy to agree with the Calman commission’s recommendation that there should be greater flexibility in the running of the Scottish Parliament.
My noble friend is also right to point to the other parts of the clause, which gets rid of the restriction that the Presiding Officers and their deputies have to be appointed at the Parliament’s first meeting. This inflexibility caused problems during the last Session, given the very close electoral result. This meant that parties had difficulty in deciding quickly to release one of their members to be Presiding Officer.
My noble friend made comments about the time taken to form coalitions. In 2003, we did so in a more measured way than perhaps in 1999, when we were under greater pressure. However, we did not have the markets waiting on every twist and turn of the coalition negotiations. There are important differences between Westminster and Scotland, although no doubt we all learn lessons from experience. I hope that what we are putting in here will provide additional flexibility in the election of the Presiding Officer. It has been supported by the previous Scotland Bill Committee in the Scottish Parliament, and the current Scotland Bill Committee has also indicated that it is content with this clause.
Lord Wallace of Tankerness
My Lords, the amendment, which was tabled by the noble Lord, Lord Foulkes, would enable the Scottish Parliament’s standing orders to make provision to ensure that the Parliament would have to sit on at least 30 weeks in each calendar year; that it met on at least three days in each week that it sits; and that it does not adjourn for a period of more than 60 consecutive days. In moving the amendment the noble Lord certainly described some frustrations which I can readily identify with, although we never actually served at the same time in the Scottish Parliament. Although it does not relate to a restriction on back-bench time, I remember one Conservative opposition day when Mr Murdo Fraser was the Conservative spokesman on the economy and enterprise and I was the Enterprise Minister, and the Deputy Presiding Officer announced: “A Conservative debate on the future of Scotland's economy. Mr Murdo Fraser, you have seven minutes”. That did not really seem to give justice to the issue in hand.
That said, when dealing with the internal arrangements of the Scottish Parliament, it is important that we remember the words in the White Paper which the previous Government published when Mr Donald Dewar was Secretary of State for Scotland, in 1997. The White Paper said:
“The Government intend the minimum of legislation to establish the Scottish Parliament; and wherever possible to leave the Scottish Parliament to decide for itself what its procedures should be”.
This Government believe that that statement holds as true today as it did in 1997. The Government do not believe that it is appropriate for the United Kingdom Parliament to place restrictions on the freedom of the Scottish Parliament to administer its own affairs. It is now embedded within our UK constitutional arrangements, and our view is that the Scottish Parliament is capable of making its own changes to procedures as it sees fit.
As the noble Lord, Lord Foulkes, mentioned, on 21 December the Standards, Procedures and Public Appointments Committee of the Scottish Parliament published the phase 1 report of its inquiry into the reform of parliamentary business, which is appropriately entitled Remodelling the Parliamentary Week. I do not know whether that happened as a result of or in spite of this amendment, but as the noble Lord indicated when moving the amendment, it certainly was timely. The committee undertook its inquiry into parliamentary business last September in order to review the Parliament’s procedures and recommend areas for improvement and change. As I indicated, it is a phase 1 report. The aim of the inquiry is to give the Scottish Parliament greater scrutiny and responsiveness to emerging issues of importance to the people of Scotland.
The report makes a number of recommendations. My understanding is that they will soon be debated in the Scottish Parliament and, if agreed, implemented after the Easter Recess. Recommendation 1 states,
“that the sitting patterns of the Parliament should be changed to allow committee meetings to take place on Tuesday, Wednesday and Thursday mornings with Chamber business on those afternoons”.
This would mean that the Parliament will sit for three days a week when it is sitting, which would meet part of what the noble Lord’s amendment aims to do. The report does not make any recommendations on the other two parts of the noble Lord’s amendment—to ensure that the Parliament sits on at least 30 weeks of the calendar year, and not to adjourn for a period of more than 60 consecutive days. However, the report concluded that,
“given the need to protect the”—
respect—
“between the Chamber and committee business, and to protect time for engagement with civic Scotland, the amount of time allocated to each of these priorities at present is broadly correct”.
I have however noted that as the inquiry evolved, it also looked at how the likely addition of new powers and responsibilities proposed in this Bill would need to be taken into account, as further timetabling commitments will need to be made to scrutinise the use of these new powers for the Scottish Government and Parliament. As my noble friend Lord Forsyth indicated in a question, where does the responsibility lie? It is for the standing orders of the Scottish Parliament.
My recollection, though, is that there is also a considerable amount of flexibility. When I was a Member of the Scottish Parliament—more recent Members can correct me—although the normal starting time on a Wednesday, with time for reflection, was 2.30 pm, noble Lords will have realised that yesterday the Parliament managed to sit at 1.35 pm in order for the First Minister to make his statement launching his consultation document, no doubt so that he could then hot-foot it to his appointment with the world’s press at 3 pm in the Great Hall at Edinburgh Castle. I recall other occasions—for example, when it was clear that stage three of the Bill was going to take much longer—when there was flexibility to sit earlier or later.
My noble friend Lord Selkirk asked about the recommendation from the Calman commission regarding the separation of time to allow more time at stage three if new amendments come up, which would engage more stakeholders. I indicate to him that that is obviously a matter for the Scottish Parliament, but I will write to him and other Members of the Committee who are participating in our deliberations to give our understanding of the up-to-date position with regard to the Scottish Parliament’s response to that recommendation.
The Scottish Parliament, now 12 or almost 13 years old, is capable of reviewing its own processes, but we are showing our willingness to look at this issue too. I hope that in those circumstances the noble Lord will feel that the amendment is unnecessary and withdraw his amendment.
Lord Foulkes of Cumnock
My Lords, what surprises me is how the Scottish Parliament in its procedures seems more rigid and in its lack of flexibility seems more sclerotic than even this Chamber, let alone the House of Commons. We have already heard examples from the noble Lord, Lord Stephen, about having less than four minutes to contribute to a debate, which are true. We have heard from the noble Lord, Lord Selkirk, about the recommendations regarding later stages being rushed and civic society not having an opportunity to participate fully, and I have appreciated that as well. The Minister himself said that getting everything in when you are given only seven minutes to talk about the economy is a formidable task.
Under the proposals, all that will happen is that they will meet for three days but only for half a day each, so it is still really effectively only a day and a half. That is not a huge amount extra. Of course it is up to the Scottish Parliament, and I am going to withdraw the amendment on that basis, but, speaking as a member of the public in Scotland rather than a nominated Member here, I would expect that the Scottish Parliament might sit rather more than that and spend rather more time discussing some of the major issues that it has to deal with.
Perhaps we should not be saying this because we are non-elected and they all think of us as Neanderthals. I have been around for an awfully long time; I have just had a birthday, as someone diplomatically pointed out earlier. Perhaps we should not be lecturing the Scottish Parliament, but it is just a wee bit strange that it is not lengthening the times of its plenary sessions a little. I shall leave it at that and withdraw.
Lord Wallace of Tankerness
My Lords, in responding to the amendment moved by the noble Lord, Lord Foulkes, I am very tempted to adopt the argument of the noble and learned Lord, Lord Boyd of Duncansby, who made the case very cogently. Of course, there is a clear distinction in many cases with regard to reserved matters. I am coming to the point raised by my noble friend Lord Sanderson which was picked up by the noble and learned Lord, Lord Boyd, as to what is reserved. It is not just that the genie is out of the bottle but paragraph 2.5 of the White Paper, published in 1997 as a prelude to the referendum and the Scotland Bill and Act states:
“The Scottish Parliament will also be able to examine devolved matters and debate a wide range of issues of interest and concern in Scotland, whether devolved or reserved”.
My recollection of the debates all those years ago was that it was understood that there would be such debates.
I also seem to recall in the early days of the Scottish Parliament, with our fledgling coalition between the Labour Party and the Liberal Democrats, that the Scottish National Party Opposition liked nothing better than to identify a reserved matter at Westminster where the Labour Party and the Liberal Democrats were on opposite sides of the argument. The SNP would wish to debate those Motions to try to drive wedges through the coalition and we usually found some way out, either by having no executive line or by tabling an amendment recognising the position of both parties. After a while the SNP gave up because it realised that it was not having the desired effect of driving a wedge between the coalition partners.
On occasions it will be necessary for the Scottish Parliament to discuss reserved matters when changes have been made that have an impact in Scotland. For example, in November last year the Parliament debated maritime safety and coastguards. I certainly share the view of the noble and learned Lord that it would be allowed if it was making representations to the UK Government. One can imagine many Motions starting with the words, “This Parliament calls on the United Kingdom Government to”, for example, “not allow the Bank of England to become the bank of last resort”, or whatever. It would not require too much ingenuity to do that.
The noble Lord, Lord Foulkes, had ministerial responsibility for international development matters in the previous Administration. While that area was a reserved matter, none the less there was a Scottish interest that was considered legitimate. I pay tribute to the work that was done in the then Scottish Parliament and Executive by the noble Lord, Lord McConnell of Glenscorrodale, in taking forward and developing a relationship between Scotland and Malawi. That was thought all round to be positive and helpful.
The noble Baroness, Lady Liddell, rightly highlighted the difficulties that people sometimes have in not knowing what the relationship is between the Scottish and Westminster Parliaments. They might read things into debates on foreign policy. Therefore, it is important that when people engage in matters of such sensitivity in whatever forum, they do so in a measured and constructive way. I remember—and not just because I took part in it myself—that one of the best debates in the Scottish Parliament was in March 2003, on the eve of the military action in Iraq. The view was that everyone else was talking about it so it would look very odd if the Scottish Parliament did not. There was no line from the Executive because the Labour Party and the Liberal Democrats took different views. It is worth recalling that I moved an amendment on behalf of the Liberal Democrats that opposed intervention in Iraq. Because of the myth that has built up, it is worth remembering that the Scottish Parliament approved military intervention in Iraq in its vote in March 2003, ahead of the event happening. However, by all accounts at the time, it was a good debate.
There will be occasions when there is an interweaving of the issues. My noble friend referred at Second Reading to the question of energy, which is a reserved matter. Renewable energy has been devolved. As the noble and learned Lord, Lord Boyd, indicated, powers under Section 36 of the Electricity Act give Scottish Ministers substantial powers with regard to the licensing of power stations. There is a connection here—even an interconnection—which makes it important that both Parliaments and Governments must co-operate in trying to ensure that, where there is shared responsibility, the issues are properly addressed.
The Duke of Montrose
My Lords, perhaps my noble and learned friend could help me. As time has passed and habit has developed, we have found that the Scottish Parliament can discuss anything that it wishes, and express opinions. If something like the amendment of the noble Lord, Lord Foulkes, was passed, it would be limited to things that it wished to refer to this Parliament. Of course, discussion on the question of a referendum is probably something that the Scottish Government could say was referable to this Parliament. My noble and learned friend talked about the resolutions that were passed by the noble Lord, Lord McConnell of Glenscorrodale, on helping Malawi. Is there any limit to the amount of money that the Scottish Government can spend on things that are not devolved? It would be interesting in particular to know how much money they would be allowed to spend on a referendum. My noble and learned friend will know that there is an 80-page Bill attached to the consultative paper that was produced by the Scottish Parliament. It did not just drop out of the sky in a pre-formed manner. A great deal of time and expense was put into it.
Lord Wallace of Tankerness
The first thing I will say in response to my noble friend is that this is not something that has just grown up over the years. As I indicated, it was anticipated from the outset—in the White Paper in 1997—that there would be this opportunity. On the specific case of Malawi, there is a provision in the Scotland Act that allows Scottish Ministers to give assistance to UK Ministers and the UK Government. The co-operation at the time between the international development department and the Scottish Executive allowed that to proceed.
My noble friend raised an important point about a referendum. The United Kingdom Government made it very clear, in our consultation paper of 10 January, that the Scottish Parliament cannot legislate on reserved matters, including on an independence referendum. We have also indicated a preference for a Section 30 order, as have the Scottish Government. By the very nature of a Section 30 order, it deals with things that are currently reserved. One of the earliest was on railways. Therefore it is inevitable that there will be some expenditure and some legitimate activity by Scottish Ministers, who have to discuss and negotiate the terms of any order—which, by definition, must relate to a reserved matter—but look forward to agreeing between the two Governments to put a Section 30 order to both Parliaments. That is clearly why it is important, not just in the context of a referendum but in the context of other areas where a Section 30 order has been used where there has been a transfer of powers from one Parliament to the other, that there is proper co-ordination and consideration. Indeed, in terms of a number of powers in this Bill, there has clearly been discussion between both Governments.
Lord Forsyth of Drumlean
Could my noble and learned friend help with the point that was raised by my noble friend the Duke of Montrose about the position in respect of expenditure incurred on matters that are not within the legal competence of the Parliament? Who is accountable for that? Is it the Permanent Secretary as the accounting officer, the executive members or the Members of the Scottish Parliament? What, if any, sanction is there if there is expenditure that is ultra vires?
Lord Wallace of Tankerness
My noble friend has tabled an amendment on this issue that we will come to. I suspect that the accounting officer must have responsibility in these matters. However, as I sought to indicate, it would be very perverse if the United Kingdom Government invited a response and a consultation and then said that it was beyond the Scottish Parliament’s competence to engage in it. My noble friend raises an important point, and we will come to his amendment, which will be a proper opportunity to look at that in more detail.
As I indicated, in the case made by the noble and learned Lord, Lord Boyd, it is very difficult to draw the line. It does not cure the problem, but it is not beyond the wit to come up with the appropriate Motion to put before the Scottish Parliament. My noble friend Lord Forsyth and the noble and learned Lord, Lord Boyd, made the point that the genie is out of the bottle. Indeed, it was intended as long ago as the original White Paper that there should be an opportunity to debate these reserved matters. In these circumstances, I invite the noble Lord, Lord Foulkes, to withdraw his amendment.
Lord Foulkes of Cumnock
I have found this debate very helpful, although it pointed out that my amendment is less than perfect. A lot of interesting issues have been raised, not least that raised most recently by the noble Duke, the Duke of Montrose, and picked up by the noble Lord, Lord Forsyth, because according to this consultative document written submissions have to go to the Elections and Constitutional Development Division at Victoria Quay. I remember asking a number of questions and, no doubt, some MSPs are still asking questions about how many civil servants there are in these divisions dealing with breaking up the United Kingdom. They are spending taxpayers’ money to employ officials to move Alex Salmond’s dream a bit closer. The noble Lord, Lord Forsyth, asked a good question, which needs to be pursued, about how much money is being spent on that and whether it is ultra vires. That is, no doubt, something that we will be taking up on another occasion. It is a very serious matter. It is not just a question of printing the document; it is a question of the civil servants who could be better employed dealing with education, which is pretty ropey and not being dealt with in a perfect manner—let us put it that way—in Scotland at the moment, or with the health service, which is under pressure in Scotland. It would be better to use that money to employ nurses, teachers and policemen rather than these civil servants. I hope the noble Duke, the Duke of Montrose, and the noble Lord, Lord Forsyth, will pursue this important matter.
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.
Lord Wallace of Tankerness
To take the first part of the question, about the law officers, it is part of the Ministerial Code. We have tried to be very careful with regard to the referendum matter, although we may not have managed it all the time, to say, “This is the view of the United Kingdom Government”, because the Ministerial Code says that it may not be disclosed whether or not law officers have been asked for advice, let alone what the advice may be. The Ministerial Code is written in almost, but not quite, identical terms for the Scottish Government, and I would therefore certainly not ask the Scottish Government to produce their legal advice. If they refused to produce it or even to disclose whether they had sought it, that would be totally consistent with the Ministerial Code. However, it is perfectly legitimate to challenge them, if they assert something, about the basis on which they assert it, without asking them if there has been legal advice.
Lord Foulkes of Cumnock
I always wonder what is meant by legal advice—legal opinion from a counsel, or whatever. Let us take an example. Let us say that the Lord Advocate went to Glasgow University and gave a learned lecture about the law on the legality of a referendum. Is that legal advice?
Lord Wallace of Tankerness
A public lecture is clearly not the same as advice that counsel would give to his or her client. This is probably not the place to debate the pros and cons of the Ministerial Code on legal advice, but legal advice is an opinion of the law officers given on a particular issue to a client department.
Lord Foulkes of Cumnock
Is it not reasonable to assume that if a law officer states a legal opinion in the course of a lecture at Glasgow University, that might just be the same as the legal advice that he gives a Minister in a Government?
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.
Lord Boyd of Duncansby
Could I clarify something which I think I asked? I am not entirely sure that I have got it over. On the provisions on the statement in Section 31, I said that in my time as Lord Advocate the law officer had to give their approval to that. That is a matter of public record and has been said many times before. I do not know whether that has changed in any way and I cannot recall whether it was part of the Ministerial Code that the Minister could not make that statement without the law officer's approval. If it was part of the Ministerial Code, I cannot think that it would be departed from. If it was simply an internal arrangement, it could of course have been departed from and one could speculate as to what procedures would now be in place.
Lord Wallace of Tankerness
The noble and learned Lord is right. We cannot speculate on what happens in an Administration of whom we are not members, but I can confirm what my noble friend and the noble and learned Lord said about the Administration of whom the three of us were members. The procedures and proceedings in these matters were as they have described.
To return to Clause 7, the limited reference procedure that we are seeking would therefore allow the law officers to refer to the Supreme Court only the provisions with which they have competency concerns, while, as I said, allowing the rest to go forward to Royal Assent. We believe that this is an appropriate and sensible method of helping to ensure that the work of the Scottish Parliament runs as smoothly as possible.
On the amendments tabled by my noble friend Lord Selkirk to Clause 7, through our engagement with the Law Society of Scotland the Government have, as my noble friend indicated, tabled amendments that reflect the intention behind his amendments. I wish to thank my noble friend for looking at this clause closely and for tabling his amendments. The government amendments have the same effect; I am advised that parliamentary counsel think that they have a more appropriate form of wording, but the effect is exactly the same. We therefore very much support the amendments that he has tabled, and I hope he will withdraw his amendment in respect of the other amendments that have been tabled.
Lord Browne of Ladyton
I am grateful to the Minister. He will understand why I seek to intervene at this stage. I think it would be appropriate to point out that in the House of Commons Tom Greatrex moved a very similar amendment that was rejected, or at least not supported, by the Government at that time. The gratitude of the House to those who have created this resolution to the problem needs to be shared by him as well.
Lord Wallace of Tankerness
Indeed, what we have here is a better outcome than what was there before. We reflected on what had been said, the representations that we had received and the amendments that had been tabled, and came to the conclusion that this was the best way forward on this point.
Lord Boyd of Duncansby
I was not quite sure if the Minister was now coming to an end. I wanted to press him on one point. Whatever view he may take of the utility of the measure that he is putting forward, what weight does he put on the view of the Scottish Parliament—whose legislation this is, after all—that it does not want this? Does he think that it is right to press it in the face of that opposition? Or does he think that, because he as Advocate-General and his successors in that office will have to operate this, this is something that the UK Government want, despite what the devolved Administration think?
Lord Wallace of Tankerness
I also need to address some of the points regarding the amendments in my own name. I indicated that this was intended to help give effect to Scottish Parliament measures where perhaps only one small part of a Bill was in contention, rather than hold them up and frustrate them. If that were to happen and a whole Bill was referred because there was one clause in it over which there was some doubt and some cause for a Supreme Court determination, I rather think the Scottish Parliament might have a view to express at the point. The Bill being held up might contain other measures that it was agreed on all sides were very valuable; indeed, the measure under reference might be one where there was agreement about the policy intent but some doubt about whether it was within competency.
The six amendments that the Government have put forward are intended to achieve a number of important changes as well as technical improvements. As I have set out, and my noble friend has made this point, we think that the law officer who is making the limited reference should be responsible for publishing notice of it, rather than the Presiding Officer.
Amendment 12 implements recommendations made by the Subordinate Legislation Committee of the Scottish Parliament. We are taking on board what it said in its report on the delegated powers in the Bill in its 10th report of 2011, Session 3, where it stated that it,
“could envisage situations where the delay in commencement of the specified provisions would possibly require further provision to be made to enable the Act to function as the Parliament intended”.
The new power in subsection (9) is added in response to those comments to give the Scottish Ministers the power to make appropriate consequential provision in that scenario.
Amendment 12 deals with a point that the noble and learned Lord picked up: it modifies Section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 in its application to commencement orders made by the Scottish Ministers under new Section 33A(6). The effect is that those orders, which are to be subject to negative procedure in the Scottish Parliament, must be laid for a minimum period of 40 days rather than the standard 28-day period before they can come into force.
It may be helpful if I also write to noble Lords about this; I spent many sessions trying to get my head around a lot of its implications. The measure is designed to eliminate the risk that the Scottish Parliament passes a negative resolution after provisions in a commencement order made under Section 33A(6) have come into force. In this scenario the resolution would have no effect, as the provisions commenced would by that time already have the force of law. By increasing the laying period to 40 days, if the Parliament passes a negative resolution within that period then, in terms of Section 28 of the 2010 Act as modified, the instrument is not to come into force after that resolution.
Amendment 12 also allows the Supreme Court to provide that an order under new Section 33A(6) may be laid before the Scottish Parliament less than 40 days before it comes into force, in acknowledgement that there may be circumstances where it is desirable to bring provisions of an ASP that were subject to a limited reference into force more urgently.
Amendment 13 amends Section 113 of the 1998 Act so that the useful supplementary order-making powers contained at subsections (2) to (6) and (11) of that section also apply to the powers of Scottish Ministers to make orders under Section 33A(6), (9) and (10). For example, that would allow a consequential order under new section 33A(10) also to make supplementary or incidental provision under the power at Section 113(4)(a).
“(d) provide that an order under subsection (6) may be laid before the Scottish Parliament less than 40 days before it comes into force, despite anything in section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10), as modified by subsection (11).(9) The Scottish Ministers may by order make such provision as they consider necessary or expedient (including provision amending the Act) in consequence of any delay by virtue of subsection (2) in the coming into force of any provision of the Act.
(10) If the Court decides that any provision of the Act is outside the legislative competence of the Parliament, the Scottish Ministers may by order make such provision as they consider necessary in consequence of that decision in order to give full effect to any provisions of the Act which are within that competence.
(11) In its application to an order under subsection (6), section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (the negative procedure) has effect with the following modifications—
(a) in subsections (2) and (8), for “28 days” substitute “40 days”;(b) in subsection (4), omit “so far as the instrument is not in force on the date of the resolution” and paragraph (b);(c) omit subsection (7)(a).””
Lord Browne of Ladyton
My Lords, I know my limitations and that I will be unable to match the gratitude of the noble Lord, Lord Steel of Aikwood, to my noble friend Lord Foulkes, but I will do my best. That is all I have to offer him. I thank him for bringing forward this amendment. I believe that he has made the case for a review of the electoral system used for elections to the Scottish Parliament. He made it by reminding us of the promise that the system would be kept under review; of the acceptance of the recommendations made in the Arbuthnott commission report in 2006; and, if I remember correctly, of the acceptance then that it would be appropriate to have a review of the electoral system for the Scottish Parliament following the May 2011 elections—which recommendation I recollect was accepted by Douglas Alexander, the then Secretary of State for Scotland. That acceptance may not have transferred to the new coalition Government and the present Secretary of State, but I suspect that if he reread Arbuthnott, he would come to the same conclusion in relation to that review as did Douglas Alexander.
For that reason, I accept that there is a case for a review. I was interested in the intervention made on my noble friend Lady Liddell by the noble Lord, Lord Stephen, who indicated that he had some reason to believe that the current leadership of the SNP in Scotland had welcomed the review and might be inclining towards the views of my noble friend Lord Foulkes about what system should replace the present one.
My noble friend expressed some surprise at that, but I am not surprised, because the SNP now has the constituencies. There is a tendency for a party’s view of the electoral system to reflect either its wish to hold on to the status quo or its desire to disturb it. That is exactly why my noble friend is right to suggest that the review needs to be carried out independently of politicians, and the noble Lord, Lord Forsyth, is right to support him.
Perhaps part of the problem with the present system was that it was a compromise agreement between political parties which had an objective to disturb the status quo. My own experience is that some of the concerns about the electoral system that is used for the Scottish Parliament are exaggerated, but I do not have comprehensive experience all over Scotland of how the system works. I know that people whose views I respect have concerns about it and they have been articulated here in our debate.
I suspect that the noble Lord, Lord Steel, is partly responsible for forcing upon the Electoral Commission a numerical priority. We have had two experiences of this in Scotland. One was in a review of boundaries for the Scottish Parliament elections, when my recollection was that the instruction that went out to the Scottish Boundary Commission was in its interpretation so restrictive that it took the basic building block and just applied it numerically from one starting point across Scotland. With one or two exceptions, none of its recommendations survived the appeal process or presentation to the sheriff principal because they were ridiculous in relation to communities. I remember the debates about the constituency boundaries and voting systems Bill, when my noble friends were queuing up to say that that is exactly what would happen if we forced that structure, or any part of it, on the Boundary Commission again through that legislation. So, in a sense, this legislative body has exacerbated the problem through that legislation.
I accused the noble Lord—I hope not too seriously—of being part-author of that problem. However, he may not have voted against the attempts that were made to ameliorate the effect or to stop it, but I have a recollection, certainly, of people from his Benches voting against the amendments that were tabled through the best endeavours of people on this side of the House who knew exactly how it would work and tried to prevent it happening. If it does happen, some people will have been the authors of their own misfortune by creating a separation between communities and constituencies.
We have yet to see how the review of constituency boundaries will work out but I predict confidently that when people realise how they will take effect in their communities, Members of Parliament of all parties will be screaming from the rooftops. Not only that, communities from all over the country will come to Members of Parliament and politicians and say, “What are you doing here? What have you done?”—and it will be interesting to see how many people stick by the arguments that they made during the passage of the Bill as a justification for doing this. However, that is perhaps another matter. I did not introduce the issue into the debate but I have taken advantage of the opportunity to make my point.
Having supported the general tenor of the debate—that the time has come for a review—I say to my noble friend that I do not think this is the vehicle for it. Earlier in the debate I understood the Minister to indicate, possibly in anticipation of this amendment, that the Government were minded to explore whether the time had come for a review; that they were going to do so in an appropriate way by consulting across parties; and that the voting system for the Scottish Parliament could be included if there was consensus and agreement for such a review.
That is, of course, the way in which we should proceed with all constitutional change; we should consult and seek consensus so that we can go forward. No political party owns the constitution and we all have a responsibility to preserve certain parts of it to hand on to future generations. It belongs to the people, not to us, and we should ensure that we do not seek party advantage out of a review of the constitution. If there is to be constitutional change in this area, that is the appropriate way to do it—not by, with all due respect to my noble friend, a provision in this Bill.
The structure that my noble friend has suggested has many of the right ingredients for a review. The timing that he proposes, however, would, if we pass the amendment, divert us from what should be the focus of our attention for that period of time and until the referendum in Scotland—that is, making the progressive, proper, forward-looking argument for keeping Scotland in the union; we should not use any of our resources for considering the system for electing Members to the Scottish Parliament. In my view—and I am afraid to say that this is where my gratitude to my noble friend runs out—this is the wrong vehicle. I prefer the Minister’s indication that it will be done in an appropriate way by a review instituted with some degree of consensus. The discussion needs to go beyond political parties into civic Scotland. It is the wrong time, but I am grateful to my noble friend for allowing this debate.
Lord Wallace of Tankerness
My Lords, the amendment moved by the noble Lord, Lord Foulkes, has generated a considerable amount of discussion on the merits or demerits, as perceived by noble Lords, of the present electoral system for the Scottish Parliament. I declare a non-interest: I was not at the noble Lord’s party, but I can assure him that that has no bearing whatever on the response I will give to his amendment.
He wishes to set up a committee to review the electoral system used to elect Members of the Scottish Parliament. It is tempting to go through the history of how we arrived at the electoral system we have. I shall resist that temptation, other than to say, as was indicated, that it was a compromise. It was obvious at the time and is the case. My noble friend Lord Steel said that there was a commitment to review the system after two elections. I do not remember such a commitment but, nevertheless, the Arbuthnott commission was established jointly, if my memory serves me correctly, by both the Scottish Government and the United Kingdom Government to look at the electoral system. It reported, recommending some revisions to the electoral system. I try to remind myself what they were. The Arbuthnott commission recommended that the mixed-member proportional system we have for elections to the Scottish Parliament should be revised to give voters more choice. It suggested that the closed list should be replaced by an open one, that the boundaries should be based on local authority areas and that a role should be defined for the regional MSP. Self-evidently, these recommendations were not taken forward or implemented.
The commission went on to say that,
“our revised electoral system, if implemented, should be reviewed following the experience of two elections. If further reform is judged necessary, consideration should be given at that time to introducing the single transferable vote for Scottish Parliament elections”.
As I have indicated, that revised system has not been implemented. The Calman commission perhaps read more into that and interpreted it as saying that in any event there would be a further review after two more elections—ie, after 2011. My colleagues who sat with me on the Calman commission will no doubt recall that we did not make any recommendations on the voting system as such because of the very recent Arbuthnott review, but also because there might have been a future review.
As I indicated in an earlier debate, specifically on another aspect of the electoral system and the regional list Member also standing in the constituency, the Government have stated their intention to consider what has been said by a review of the electoral system by both the Calman and Arbuthnott commissions. Indeed, in the Command Paper published alongside the Scotland Bill on St Andrew’s Day 2010, Ministers said that they recognised that the Calman commission,
“considered whether the electoral system for the Scottish Parliament should be reformed or devolved to the Scottish Parliament. Previously, the Arbuthnott Commission had reported in 2006 stating that there should be a review of the electoral system after the 2011 elections to the Scottish Parliament—the Government will consider this recommendation, taking into account the views of the new Scottish Parliament, following the May 2011 elections”.
Clearly, as indicated by the debate we have had this afternoon, there is support in a number of quarters for some form of review of the electoral system. However, the Government believe that they could take forward that review only with the full support of all parties in the Scottish Parliament, along with the benefit of the detailed consideration that this Government are committed to. I take the point made by the noble Baroness, Lady Liddell, that there is perhaps some nervousness about seeking to change the rules after they delivered a result that many of us did not like. That is a fair point. The noble Lord, Lord Browne, also made the important point that there are perhaps more important constitutional issues that we should focus on at this time, not least the fundamental question of Scotland’s place in our United Kingdom. Perhaps now is not the appropriate time to start a review of the electoral system. I have indicated that if there is that consensus to take it forward at some future time, we would be willing to consider it, but this is not the appropriate time to do so.
I think that we all share two views that were expressed earlier. First, I endorse what my noble friend Lord Forsyth said on the standing and importance of a Member of Parliament in his or her community. He said that those of us who have had the privilege to serve as Members of Parliament take very seriously that we represent the entire community and not just those who voted for us. That sense of representation and the privilege that follows those of us who have done that is important. That links into what the noble Lord, Lord McFall, said on the duty of all us to consider how as politicians—elected or not—and as a political system we can re-engage with the people who our laws affect. That will not be done just through a change to an electoral system. There are a whole host of things but it is something we would do well to remember.
For clarification, on the specific point raised by the noble Lord, Lord Foulkes, on Amendment 1, I repeat that we will see what consensus there is about looking at that. In the spirit of what I have said, I hope the noble Lord will withdraw his amendment.
Lord Foulkes of Cumnock
My Lords, we have had a very lively and well informed debate, considering that we started over seven hours ago with the procedural amendment proposed by the noble Lord, Lord Forsyth. It has been a very useful debate.
My noble friend Lady Liddell—I call her Secretary of State emeritus for good reasons—alerted me to the fact that she was going to disagree with me. I did not realise that it would be such a gentle disagreement, because it was a very sensible contribution. She pointed out the genuine argument against my proposal, and I had taken account of it. It is a very genuine argument about timing that we need to be concerned about. There is never a good time for this, and we wish we had done it. My noble friend said that we had missed the boat. I wish we had had a review when we should have had one, but it is too late now. I am glad that the Minister has said that the Government would look at it at an appropriate time. If the noble Lord, Lord Stephen, is correct in what he said in intervening on my noble friend, there is hope that we might get agreement across parties and between this and the Scottish Parliament. That would certainly signal the way forward.
I thank my noble friend Lord Browne for his very positive response. He was a bit hesitant about it, but it was very positive indeed. Someone said that this was not the vehicle to raise this issue, but it was the only vehicle open to me. I accept that it may not be the best way forward. Therefore, because I accept the point made by the Minister in his very helpful reply, I beg leave to withdraw my amendment.