Scotland Bill

Debate between Lord Wallace of Tankerness and Lord Cormack

Monday 21st March 2016 Lords Chamber

[Lord Wallace of Tankerness]

As I said, these are not academic issues but very real ones. The Human Rights Act could certainly give rise to them as indeed could measures in the Trade Union Bill. They would not necessarily be issues between Governments; they could be issues that impacted on other public bodies in Scotland, for example. That is why it is regrettable that the Government have not been more forthcoming and willing to look at the proposals that we want to put on the statute book.

[Lord Cormack (Con)]

My Lords, both noble and learned Lords have made powerful points. I do not wish to make anything other than a very brief intervention, but I have amendments, strongly supported both in Committee and on Report, concerning the word “normally”. I am extremely sorry that the Minister has not really met that point. It has been made with great eloquence by noble Lords learned in the law, and it was made by those of us throughout the United Kingdom who share the concern of the two noble and learned Lords who have just spoken. I am sorry that their amendments have not been deemed admissible. Of course they have done entirely properly in not seeking to move them, but this is an unsatisfactory Bill and we are in an unsatisfactory situation.

I put it on record that I remain extremely concerned about the use of this very loose word “normally”. I believe as a layman that it is clearly something that could be justiciable. I know not what will happen, but I fear that we are not putting on the statute book something that recognises what noble Lords in all parts of this House have recognised. In my opinion this is a flaw in the Bill, and it has been demonstrated as such by many people. I am sorry that the Minister has not felt able to move on this issue.

--- Later in debate ---

[Lord Cormack]

My Lords, a constant theme in your Lordships’ House is that the other place has inadequate opportunity to scrutinise legislation thoroughly. When we say that, we always then go on to say that in your Lordships’ House things are different. In this case, they are not. It is nothing short of disgraceful that the other place has not had an opportunity to debate the fiscal framework. Twenty-nine of us put our views on that on the record when we had a Division a few weeks ago, but it was a vain gesture.

I speak as a Member of your Lordships’ House who feels proud of our reputation for scrutiny and our ability to look at Bills forensically and to get change by either passing more amendments or, more regularly, by getting the Government to recognise that points of substance have been made and that alterations of substance should follow. In this case, that has not been possible.

It is deeply regrettable that that is the case. I make no personal criticism of my noble friends on the Front Bench; they are men of great charm and ability. However, they have been working under orders and have not been able to respond to points of real weight and substance because the brief has not allowed them to do so. In so many ways, this is a one-off Bill. I trust, above all, that in the context of scrutiny it will remain a one-off Bill.

[Lord Wallace of Tankerness]

My Lords, like the noble and learned Lord, Lord McCluskey, I thought that the remarks made by the noble Lord, Lord Dunlop, in replying to the last amendment, when he thanked everybody, were more suitable for the Bill do now pass debate. However, although I did not take part in that discussion, I would not wish in any way to lessen the appreciation I express on behalf of my colleagues to those who have helped to get the Bill to its present state, not least the Bill team, with some of whom I have worked in the past and know of their exceptional quality and hard work. I particularly thank the Minister, who with his customary courtesy has gone out of his way to meet us, engage with us and discuss issues with us—regrettably, not always to any effect from my point of view, but no doubt from his point of view it has been very effective. That is very much appreciated.

Aspects of this process have not been at all satisfactory. The short period that we had in which to look at the fiscal framework was not satisfactory. The Bill could be in a better state than it is and perhaps more favourably reflect the spirit of the Smith commission. The House has not done much to respect, or even give proper consideration to, the points made by the Scottish Parliament’s committee that looked at the Bill. Those are matters of regret and do not augur well for having mutual respect and trying to improve the relationships between the institutions of the Westminster and Scottish Parliaments. But that is where we are.

This amendment addresses the Barnett formula. The Minister referred to the vow in his wind-up speech. I happen to believe that the referendum was won in spite of rather than because of it. However, it is important that we celebrate the fact that we won the referendum and are not facing independence day on Thursday of this week, with one dreads to think what consequences.

I note that, when I stood where the Minister stands now, the most difficult question I ever had to answer in one of these debates came from the noble Lord, Lord Turnbull, who referred to the vow. It says:

“We agree that the UK exists to ensure opportunity and security for all by sharing our resources equitably across all four nations to secure the defence, prosperity and welfare of every citizen”.

It goes on to refer to the,

“continuation of the Barnett allocation for resources”.

I was asked how I could square the equitable sharing of resources with the continuation of the Barnett formula. I struggled to find an answer. I will allow the Minister to find his.

Energy Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Cormack

Wednesday 21st October 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I do not wish to detain the House for long. When we engaged after the debate on recommital late last week, we hoped that the Government might have moved a lot further than they did. I acknowledge the amendments that have been made, but they do not go to the heart of many of the concerns of the industry. In fact, there is still a blatant unfairness for those who have observed good practice and have tried to work with local planning authorities.

On the point made by the noble Lord, Lord Cormack, that local democracy matters, developers have worked alongside communities and planning authorities, but because they did not take the route of having a deemed refusal, they are falling foul of this.

[Lord Cormack]

One of the things we have to bear in mind is that a number of wind farms were granted permission not by local authorities, but by being overruled from the top. Indeed, Lincolnshire County Council was against a number of wind farms that have been thrust upon the county.

[Lord Wallace of Tankerness]

I think that the noble Lord almost makes my point because, as far as I understand what is being proposed by the Government, local authorities which have refused an application before 18 June, but which was subsequently appealed successfully on a decision taken by Ministers, will actually qualify. But an agreement reached by locally elected people and a locally elected planning committee after debate, consideration and engagement with the local community, but where the subsequent consent as part of that route due to the cycle of meetings was not given until after 18 June will not qualify. Perhaps he has done so inadvertently, but the noble Lord, Lord Cormack, profoundly makes the point that we are making. There is an inconsistency and an unfairness in what the Government are proposing. There is inconsistency between Section 36 applications for smaller developments added on to existing developments and those which do not need Section 36 applications. I do not believe that the Government have made out the case for fairness of treatment, given the test which their own Minister articulated yesterday.

I am sure that we will debate the Salisbury convention at some stage, and I hope that we will take note of the report of the House of Lords and House of Commons Joint Committee on Conventions, which sat around 10 years ago. My noble friend Lord Wallace of Saltaire, who was then the deputy leader of my party in your Lordships’ House, emphasised the Liberal Democrats’ view that,

“‘the Salisbury-Addison Convention was an historical negotiation between the Labour Party in the Commons and the Conservative Party in the Lords’ and therefore not relevant to current circumstances”.

We articulated that position almost 10 years ago, and I think that the report itself accepted that things had moved on.

The noble Baroness, Lady Worthington, said that it was an opportunity for the Government to think again. We certainly want to engage with them in thinking again, because I do not believe that what we have at the moment is fair to developers who had a reasonable expectation that a system which was due to close in March 2017 has been brought forward by a year. In the end, as the Government’s own impact assessment states, the central estimate is around 30p on the electricity bill of the average household. Given the potential damage to the industry and the damage that this is doing to investor confidence in other areas of the renewable industry, it is important that the Government should think again. They have not been able to come up with satisfactory ways of addressing some of the many legitimate complaints that the industry has expressed.

Proposed Changes to the Standing Orders of the House of Commons

Debate between Lord Wallace of Tankerness and Lord Cormack

Tuesday 21st July 2015 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I very much welcome this debate and congratulate the noble Lord, Lord Butler, on coming forward with this Motion. It is not because we on these Benches do not think there is an issue to be addressed; rather, we think that the Government have gone about it in a somewhat rushed way, with little or no consideration of the possible constitutional consequences.

I heed the remarks of the noble Lord, Lord Wakeham, who has considerable experience in these matters, that the House of Lords ought to be cautious when we are dealing with matters that relate to the internal workings of the other place. But if these internal workings, and the manner in which the Government are going about it, have important constitutional consequences, then it is a matter for this House to have regard to as well. This is perhaps a classic example of a measure that flashes the warning sign: “Beware the law of unintended consequences”.

Many of these points have been rehearsed, but we know it will be very difficult to determine whether a clause or a schedule, to quote the draft Standing Orders, would be,

“within the legislative competence of the Scottish Parliament to make any corresponding provision for Scotland in an Act of that Parliament”—

that being the test for whether or not it was a matter that the Speaker could certify. It is not an easy matter to determine, as I indicated last week. When I was Advocate-General for Scotland, much of my office was looking at these matters and trying to determine where the boundaries of competence were. Indeed, I had the privilege of appearing before the Supreme Court, presided over by the noble and learned Lord, Lord Hope of Craighead, on a matter relating to the sale of tobacco products to children. Ultimately it was the Supreme Court that determined whether the matter was within or outwith the competence of the Scottish Parliament.

As the noble Baroness, Lady Boothroyd, said in our deliberations last week, these issues could bring the Speaker into some legal and political controversy. What if, for example, the Speaker certifies a measure as satisfying the test but subsequently the Scottish Parliament seeks to bring forward exactly the same legislation and the Supreme Court determines that in fact it was not within the competence of the Scottish Parliament? No doubt the Speaker’s certificate would be final but you would have a very difficult situation where the Supreme Court decided something that the Speaker or the Speaker’s Counsel had got wrong. As has also been said, we are treading on ground that could raise issues about Article 9 of the Bill of Rights. Even if it is not justiciable, it will not necessarily stop someone trying to make it justiciable, and all sorts of issues could arise there.

I also note that the draft Standing Orders say:

“Where either the whole House or the English, or English and Welsh, MPs do not agree to a motion relating to the Lords amendments, the amendments are not agreed and a message to this effect is sent to the House of Lords”.

We would be dealing with a situation where an amendment has been passed by your Lordships’ House—indeed, it could have been passed by the House of Commons—which, in the past, anyone would have thought had been passed by both Houses and should then go to Her Majesty for Royal Assent, but we are being told that in fact that would not necessarily lead to a measure being put forward for Royal Assent. That is an important constitutional issue. It may not affect the Standing Orders of your Lordships’ House but it has implications for your Lordships’ House.

Finally, the noble Lord, Lord Forsyth, may wish to intervene and articulate this more, but he made an important point last week about the provisions that were added in relation to finance—that it could well be the case that the substantial part of the Government’s supply from income tax would be deemed to be a matter only for English MPs or English and Welsh MPs to determine. So you could have a situation where English and Welsh MPs could veto the supply of the majority party in the House of Commons. I am not saying that it could not be done—under these provisions it would be done—but it has important constitutional consequences. Therefore, I do not believe it is sensible to proceed piecemeal by way of Standing Orders of the other place, and that is why the proposal that has come from the noble Lord, Lord Butler, is one that I hope this House will pass and which I hope the other place will take seriously.

[Lord Cormack (Con)]

My Lords, I have great sympathy with the noble Lord, Lord Butler. The solution that the Government have come up with in the other place is, to put it mildly, far from perfect. But we have one problem in this House this afternoon: we cannot establish a Joint Committee. We can express a view and say that we think that there should be a Joint Committee—personally, I would welcome that—but we can also try to ensure that the matter is referred to our Constitution Committee. I believe that there are repercussions for this House and that we have to take the issue extremely seriously.

Altering the constitution in this way, almost by sleight of hand, does no service to any of us who care about the stature of Parliament, the relationship between the two Houses and the responsibility of this House in particular. My noble friend Lady Stowell has already indicated that there will be a full day’s debate in September, which is good and welcome. But I hope that when she comes to reply from the Front Bench she will be able to go further and say that she, as Leader of the House, will personally ask the Constitution Committee of this House, which has an enviable reputation for working thoroughly and fairly expeditiously, to try to report in time for that debate—but, if not, very shortly afterwards. We are entering a legislative quagmire here and it is far more important that we get it right—here, I totally agree with the noble Lord, Lord Butler—than that we achieve it quickly.

We have had too much government by gimmick and deadline over the last year. I have quoted this before in the House: something must be done by St Andrew’s Day and something else by St David’s Day. We are playing with the constitution of the United Kingdom, in which I hope that most of us truly believe, and if we are to safeguard the United Kingdom in this new era of extra devolution, we have to safeguard the position of the United Kingdom Parliament—a Parliament in which all Members are equal.

It may well be, as I believe, that there is a very good case for reducing the number of Members from Scotland when current legislation is on the statute book, and in time for the next general election. There is precedent for that both in Scotland and Northern Ireland, but the extremely convoluted arrangement that is currently proposed is likely to create far more problems than it solves. Of course I welcome the idea of a review after one year, but I would rather that we did not go there. I urge my noble friend to give serious consideration to making a personal request to the Constitution Committee of your Lordships’ House to look at this matter very quickly.