Scotland Act 2016
Lord Forsyth of Drumlean Excerpts(8 years ago)
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Lord Dunlop
In all issues the two Governments will seek to work constructively. There was a specific review to see how passengers who travelled to Scotland could get the benefits of HS2—that is an example of how the two Governments have been working together.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend agree that the Scotland Act 2016 leaves the power to call a second referendum on independence in Scotland here at Westminster and not in Scotland, and that it is utterly irresponsible for any unionist to argue that a vote to leave the European Union would justify a second referendum when the vast majority of people in Scotland regard this matter as now settled?
Lord Dunlop
I very much agree with my noble friend. The people of Scotland voted very clearly and decisively in 2014 to remain part of the United Kingdom, and at the time Nicola Sturgeon, now First Minister of Scotland, said that this was a “once in a generation” issue. It is incumbent on the SNP to respect the decision that the people of Scotland took and to focus on jobs, prosperity and high-quality public services in Scotland.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(8 years, 2 months ago)
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“Approval of the fiscal framework
Nothing in this Part shall have effect until each House of Parliament has passed a motion expressing its approval of the agreement between the Scottish Government and the United Kingdom Government on the Scottish Government’s fiscal framework.”
Lord Forsyth of Drumlean (Con)
My Lords, I shall speak also to Amendments 57AB, 57AC, 68, 68A and 68B standing in my name. Amendment 56ZA is a probing amendment giving us an opportunity, for the first time, at 20 past six at night, in the final stages of the Bill, to discuss the fiscal framework. This will be the first opportunity for either House of Parliament to discuss this important measure. The amendment simply states that the proposals for giving the Scottish Parliament income tax powers should not have effect until each House of Parliament has had an opportunity to discuss the fiscal framework.
Amendment 57AB provides for the same matter in respect of the welfare provisions in the Bill. Amendment 57AC provides that a statement should be published on what exactly the Scottish Government have spent the £200 million on which, under the fiscal framework, is being provided to them as a one-off payment to implement the powers, and the £66 million per year being given to them to support the additional powers being provided to them. Amendment 68, on which, in the absence of an indication from the Minister that he is prepared to accept it, I intend to test the opinion of the House, simply states:
“None of sections 1 to 68 may come into force until … the Secretary of State has laid before each House of Parliament a fiscal framework setting out the arrangements and institutions underpinning the tax and spending powers included”,
and that,
“the framework has been approved by resolution of each House of Parliament”.
First, I thank my noble friend for the courteous and helpful way in which he has supported us in trying to do our job in this place, which is to scrutinise the fiscal framework. I know of the difficulties that have been caused by the lack of agreement between the Government and the Scottish Government on these matters, but I have to say that this is fundamental to the Bill, and it seems to me that the fiscal framework should be approved by both Houses of Parliament.
I found myself spluttering over my WheetyBangs when I was having breakfast yesterday reading the Sunday Times—it was probably only in the Scottish edition. Mr Jim Gallagher was a very distinguished Scottish Office civil servant indeed. I think I am right in saying that he was private secretary to my noble friend Lord Lang and, previously, Sir Malcolm Rifkind, and went on to be in charge of the Constitution Unit in the Scottish Office, and he is held in high regard by people on all sides of this House. I was very surprised to read his verdict in the Sunday Times, which I shall share with the House. He said:
“The compromise the Scottish government made is that the deal is not eternal. It will be subject to review. The compromise the Treasury made is that they handed over the money … The Treasury gave the Scottish government a deal it couldn’t turn down. How it will explain this to English MPs I have no idea, but that is George Osborne’s problem. From a purely Scottish perspective, you have all the advantages of tax devolution and very few of the risks”.
In the same article, the Sunday Times reported that, “According to well-placed Westminster sources, the deal between the Scottish and UK Ministers was struck amid Tory fears that sticking with the Treasury offer that could have left Scotland £3 billion worse off over a decade would have hurt David Cameron’s chances of winning the June EU referendum”. It strikes me as extraordinary that something as important as the future financing arrangements for the whole of the United Kingdom should be decided in this way and, indeed, that the agreement that has been struck is so unfair to other parts of the United Kingdom. We are talking in the Scotland Bill about trying to provide a permanent and stable arrangement for the future governance and funding of the United Kingdom.
If I may be permitted to make one political point, it is extraordinary, is it not, that in less than a month, had the Scottish people not voted by an overwhelming majority to reject independence, we would be experiencing Scottish independence day, which was set by the former first Minister, Alex Salmond, as 24 March 2016 What a mess we would be in with the oil price of $31. There would be a hole of billions of pounds in the Scottish Budget arising from the loss of oil revenues and other disastrous consequences. Fortunately, we in Scotland are part of the United Kingdom and have the security of the United Kingdom around us.
Therefore, I find it quite extraordinary that in the fiscal framework, the Government have agreed to give the Scottish Government £200 million in a one-off payment to meet the administrative costs of the additional powers contained in the Bill before us. Two hundred million pounds was what the First Minister was telling us throughout the independence campaign for the referendum would be the entire costs of setting up an independent Scotland. It is exactly the same figure: £200 million. Yet they are getting £200 million for taking on responsibility for the powers included in the Bill. I have no idea how that figure was arrived at, but as a taxpayer, I would like to know how it is spent, and one of my amendments refers to the fact that there should be an account for that.
In addition, under the fiscal framework, they are being given an extra £65 million every year, on a continuing basis, to administer the new powers. Again, one wonders why that is necessary, how the figure was reached and whether there will be any accountability for spending it. As I indicated at the time of the Statement, the First Minister appears to have been bought and sold for English gold. Those who remember their Burns will know that it refers to a parcel of rogues in the nation, and the SNP is a parcel of rogues in the nation. They told the country that there would be a one-off referendum and that it could all be done for £200 million, but now in secret they have been passing the begging bowl to my noble friend and requiring huge sums of extra money on the basis that it is needed to survive in the union. Thank goodness they did not get their way, break up the United Kingdom and leave Scotland exposed to the financial difficulties—now apparent even to them—that would have resulted.
This fiscal framework makes a fundamental error. I served with my noble friend Lord Lang and others on the committee established by the late Lord Barnett to deal with what he regarded as a great embarrassment—that his name was associated with a formula that he believed was unfair to the rest of the United Kingdom, and to Wales in particular. We looked at the Barnett formula and concluded unanimously, in a report that stands the test of time, that we should have a system that treated all parts of the United Kingdom fairly, was based on needs and had transitional arrangements for the implementation of the changes for losers and winners. That has been ignored by Governments for political reasons—I understand that—by Governments on my own side and on the other side. I understand the political reasons why it has been ignored, but I cannot understand why, in this fiscal framework, it has been agreed that the Scottish Government will have a veto on any change to the Barnett formula in future.
Lord Forsyth of Drumlean
I tend to agree. I want to know how this will be calculated, how it will be enforced and what are the powers to do so.
Then the agreement goes on to make a change from the Smith proposals. Paragraph 46 states:
“These financial consequences of policy decisions have been termed policy spillover effects”.
“No detriment” has now become “policy spillover effects”. Paragraph 47 states:
“The main categories of these can be divided into … Direct effects—these are the financial effects that will directly and mechanically exist as a result of the policy change (before any associated change in behaviours); and … Behavioural effects—these are the financial effects that result from people changing behaviour following a policy change”.
I asked the Chief Secretary to the Treasury about this today. The example the noble and learned Lord, Lord Wallace of Tankerness, has used and I have used is from when I was in government. We decided in Scotland not to privatise water, but in England it was privatised and we lost the Barnett consequences of that. Does that mean that under the new arrangement of no detriment, where the Government south of the border decided to have a policy of funding water privately, not through the taxpayer, as a result, a cheque would have to be sent north of the border to compensate them for this policy under the no detriment or policy spillover effect that arose? “Spillover” is actually quite good in the context of water privatisation. Does it mean that? The Chief Secretary looked slightly puzzled and said, “No, of course it doesn’t”. Why does it not? Where does it say that? How is this defined? Nowhere is it defined.
Here we are, at the 11th hour, discussing the fiscal framework. Everyone is rather confused about how it is going to operate. Everyone is wondering how on earth the veto which has been given to the Scottish Government will operate. As I am sure at least one party will come to its senses at some stage and decide that we need a fair system for funding the United Kingdom, what happens if a party is elected on a manifesto which provides for replacing the Barnett formula with one based on needs or some other system and the Scottish Government say, “Hang on a second. We have an agreement that you cannot change it without our consent”? Then where are we? I have no doubt that the Minister will say that he believes that people will be guided by the results of an independent review. If he says that, I will say to him that he has not seen how the Scottish Government operate or how the Scottish nationalists operate. That is not their way of doing things, as I am sure many Members of this House would agree.
My simple request to the Minister is that he accepts the sunrise amendment which gives an undertaking that this House and, more importantly, the elected House—the House of Commons—have an opportunity to discuss this fiscal framework and to consider the impact on Northern Ireland, Wales, the north of England and elsewhere. It is far reaching and fundamental, and it is not acceptable that this should be agreed in secret and given out in dribs and drabs with little time for the House to consider it or for people outside to consider it and advise Members of both Houses on the way forward. I beg to move.
Lord Wallace of Tankerness
My Lords, I shall speak to the amendment in this group in the name of my noble friend Lord Stephen and myself. I am sure the House is grateful to the noble Lord, Lord Forsyth, for raising this important debate on the fiscal framework. It is long awaited. Although we had a very good debate in Committee, it was a bit like “Hamlet” without the Prince of Denmark; it was about the fiscal framework without the actual fiscal framework agreement. At least we can now have a debate on this important part of the architecture of Scottish governance following the Smith commission’s proposals in the light of the agreement which was published at the end of last week.
The amendment which my noble friend and I have tabled is to address the mechanism for the review of the fiscal framework. The Smith commission said that it was important that there was a review, and in Committee we moved an amendment to establish a review. We have tried to revise that amendment in the light of the agreement as we now see it.
When the Minister replies, it would be helpful if he could give us some indication of how the Government understand the review and the mechanisms. The Chief Secretary to the Treasury, Mr Greg Hands, was right to point out that there is a distinction between the review and dispute resolution. I am rather intrigued by the fact that in the agreement the review is referred to in paragraphs 20 to 23 and again in paragraphs 111 to 113, some of which appears repetitious and almost as if there is something uncertain about it. It is as if the more often you say it, it might just happen. Perhaps the Minister will tell us if there is anything we should read into the fact that it was felt necessary to repeat some of the proposals with regard to the review at a later stage.
The First Minister of Scotland in her Statement to the Scottish Parliament last week seemed to indicate—I sat and listened to it—that there could be a veto over the Scottish Government accepting anything which was not to their advantage following the review. Indeed, paragraph 112 states:
“It will be open to either government to propose changes to the fiscal framework from”,
the point of the review or the end of 2021, and:
“The fiscal framework does not include or assume the method for adjusting the block grant beyond the transitional period”.
The Chief Secretary seemed to say today that it was “our model”, which I assume to mean Her Majesty’s Treasury’s model, whereas the transition period was the Scottish Government’s transition period. So—this is a question which the noble Lord, Lord McConnell of Glenscorrodale, asked last week when the noble Lord repeated the Statement—what is the default position? Is the default position the Treasury model, or is there in fact a veto? What happens if there is not agreement following a review? One was left with the impression that it is a bit, “it’ll be all right on the night”. Those of us who have seen the negotiations with the Scottish Government know that it will not necessarily be all right on the night. They may well take things up to the brink.
Under Section 64 of the Scotland Act 1998, the Scottish Consolidated Fund is established, and subsection (2) states that the Secretary of State shall pay sums into the Consolidated Fund, but the sums are not predicated by any agreement or formula, and certainly are not predicated by the statute. I imagine that if all else failed, the ball would be at the feet of the Secretary of State, who has to pay money into the Scottish Consolidated Fund. Perhaps the Minister could indicate how, in the event of impasse and of no agreement being reached, the UK Government, particularly Her Majesty’s Treasury, see that sum to be paid into the Scottish Consolidated Fund being arrived at, given that it is actually the Secretary of State’s decision and, according to statute, is not in any way fettered. It is important that we get some clarity about what should happen.
Lord Forsyth of Drumlean
Is it not clear throughout? Paragraph 52, regarding a dispute over the no-detriment principle, says:
“Without a joint agreement, no transfer or decision will be made”,
while paragraph 103, on dispute resolution, says:
“If no agreement can be reached”,
between the Governments,
“then the dispute falls—there would be no specific outcome from the dispute and so no fiscal transfer between the Governments”.
Lord Wallace of Tankerness
My Lords, I noted earlier, with regard to paragraph 103, that it surely cannot be conceivable that the funding would dry up. The House is therefore owed an explanation as to precisely what lies behind paragraphs 52 and 103 of this agreement.
The proposal that my noble friend and I have tabled is that there should be a review, which should be informed by a commission. The commission should be three persons from the Office for Budget Responsibility advisory panel, to be appointed by the OBR’s chairman, therefore taking it even more than arm’s length away from the Government, and there also should be membership of a Scottish professional body—it could be the Institute of Chartered Accountants of Scotland or CIPFA—to be agreed by Her Majesty’s Treasury and Scottish Ministers, whose members should be appointed by the senior office-bearer of that body. Again, that is an attempt to put it at one remove from the Scottish Government. It would be a genuinely independent body that would inform the review about how the fiscal framework had worked.
We go further than that by saying that no person appointed to the commission should have been a member of any political party for five years prior to accepting membership. Consistent with the fiscal framework, the report should be laid no later than 30 November 2021 and submitted to both Houses of this Parliament, the Scottish Parliament, the Chancellor of the Exchequer and Scottish Ministers.
All that we find out in the fiscal framework agreement is that the arrangements for review, including how independent they will be, should be left to the Joint Exchequer Committee. We may feel that in order to be reassured, it is not unreasonable for Parliament to set some parameters for how the independence of that review body will be established. The amendment is therefore intended to probe just what Ministers have in mind with regard to the working out of that review, and indeed to answer some of the questions about what happens in the event of a failure to reach agreement on the review. There are important questions to be answered, and I look forward to the response of the Minister.
I am sorry, is the noble and learned Lord, Lord Hope, waiting to intervene or to ask a question?
Lord Empey
My Lords, I said earlier that I considered the terms of the Smith commission to be effectively a treaty. Nothing I have heard last week or this week has changed my mind on that.
Can the Minister clarify a couple of things? A borrowing power for revenue shortfall is included in the framework. Certainly in Northern Ireland, if we had money left over, we used to be able to roll it over, but that was severely restricted, down to one year. On the point that the noble Lord, Lord Forsyth of Drumlean, made, about the spillovers and the behavioural changes, is that borrowing power designed to deal with the unintended, and perhaps unforeseeable, consequences of behavioural change; for instance, on welfare, which may not have been anticipated—some of it could have been weather-related or there could have been other sorts of issues—and is that borrowing power designed effectively to operate as an insurance policy to keep the wheels going until a review can take place, or are the spillover arrangements effectively an insurance policy against mistakes that are made so that the Scottish Government will not run out of money? What will the borrowing limit be, both for revenue and capital expenditure? Will it be tolerable for capital moneys to be converted and used for revenue? All these things are important, because it has already happened. I understood that there used to be a complete ban on that happening but it has happened, and I wonder where this process is going.
I understand that all the devolved Administrations are now able to borrow from the Treasury through the loans fund. Are there limits on this? The borrowing that occurs in Northern Ireland is becoming very substantial. By the end of the next financial year or maybe the year after it could go up to £3 billion, and £700 million of that is to pay off 20,000 workers because they did not take any precautions and start four years ago to gradually run down the number of civil servants that they knew they did not have money for. Their budgets were provided for them by the Treasury in 2010 and they knew about it four years in advance. Now they are borrowing £700 million to make 20,000 people redundant. I understood that the Treasury was very protective of the national cash limits, but it seems to have lost the plot and is now permitting devolved Administrations to borrow, and there do not seem to be any limits.
Lord Forsyth of Drumlean
My understanding is that it is proposed that the Scottish Government will be able to borrow money on the money markets and issue bonds, and will thus have more expensive borrowing than is available to the UK Government, which is another thing that is difficult to understand.
Lord Empey
I can say to the noble Lord that we raised several times with the Treasury the question of issuing bonds for capital projects. Some people in America who wanted to be helpful said that they would be interested in providing resources. However, the Treasury blocked that on the basis that it would have to go on to the national debt because, unless it was ultimately guaranteed by the Treasury, there would be less likelihood of investors coming forward to take over the bonds. Therefore, the national Government would be required to guarantee the debt. I do not know whether the Treasury is no longer concerned about things going on to the national debt but that used to be the big thing that it wanted to ensure was adhered to. Is the situation here that the Scottish Government’s decisions are effectively being insured? If so, I assure the Minister that there will be others knocking on the door for that insurance policy.
Lord McFall of Alcluith (Lab)
My Lords, even if one were dozing during this debate, there would be no doubt how the House felt on the issue. I note the comment of the noble Lord, Lord Kerr, that the debate on the Barnett formula is lost. We must realise that situation. I shared a flat near Joel Barnett for many years. Joel never tired of telling me that the Barnett formula was introduced in 1978 to settle a relatively minor dispute in devolution so that he would get “them” off his back. He used a profane word that I will not use in this House. However, since 1978 that formula has stuck.
When I was in the other place, the noble Lord, Lord MacGregor, manfully defended the Treasury but still was very generous with the Barnett formula. The noble Lords, Lord Lang and Lord Forsyth, as Secretaries of State for Scotland, skilfully manoeuvred the Barnett formula in Scotland. I had to sit on the Opposition Benches and admire their chutzpah on that particular issue. That is the politics of the situation now. Sadly, in many ways the political bandwagon has moved on but the analytical one is behind it.
At the end of last week, the First Minister said that there was not a penny of detriment to Scotland. She spat that out but every Scottish party in the Scottish Parliament agreed with her. The noble Lord, Lord Forsyth, mentioned in adulatory terms Professor Jim Gallagher. I looked at Jim Gallagher’s blog at the weekend. I mentioned that every Scottish party was involved but he said that, in the event, with the fiscal framework,
“the politicians have come to a compromise: one suggested first, publicly at least, by the Scottish Conservative leader Ruth Davidson”.
She proposed this, and then the Chancellor, George Osborne, intervened and offered the Scottish Government a safety net for the first five years. That effectively delivers what the SNP Ministers asked for: namely, protection for their tax income in the event that Scottish population declines. That is the reality, so perhaps I am not being ungenerous in saying that maybe the right hand of the Conservative Party does not know what the left hand of the Conservative Party is doing.
Lord Forsyth of Drumlean
Speaking very much for the right hand of the Conservative Party, I think that perhaps the noble Lord did not hear the quote from Jim Gallagher. He said that the compromise the Treasury gave is that it handed over the money. That is what we are talking about: it is not a compromise.
Lord McFall of Alcluith
My Lords, the noble Lord tells us nothing new. I looked at that issue as well. I think I made the point in the last debate here that the two no-detriment principles are irreconcilable. We must try to work out the politics of that at a later date but there is absolutely no doubt of that. Professor David Bell in his submission and the work he did for the Economic Affairs Committee illustrated that very much. In fact, I sat for about three hours looking at that report from the IMF with David Bell and I thought I was back at university. After those three hours, I understood maybe 15% of the whole issue. It is hugely complex—we all agree on that.
I mentioned the issue of the safety net. This is a good deal from Her Majesty’s Treasury but after the five years there will be the review. What will the Treasury do at that time? That will depend on how the population looks then and what other political and economic factors are going on. I agree with individuals who say that this is a five-year or six-year proposal. At the end of the day, negotiations must start again. One thing I am interested in here is to see that we develop a narrative as a result of this fiscal framework which will ensure that the grievance mentality is abandoned. Some would say it will not be but there is a possibility of that happening. I will mention that later on in my speech.
For clarity’s sake, we see that the Scottish Parliament is supported by, as we said, shared UK resources from Barnett, its own tax revenues levied in Scotland, and a cash supplement from UK resources. That could possibly force all the parties in Scotland to go into what they are offering the Scottish electorate in terms of tax and spend. We have seen it already; today I read it in the Scotsman as I was coming down in the plane. For the first time, in many ways, we are getting on to the reality of devolution and have moved on from the process. Sadly, the Labour Party was very much involved there because it was mentioned that devolution was a process rather than an event. That got it wrong. As my old friend Tam Dalyell said, it was like a motorway without exits. Let us try to build the exits as a result of this fiscal framework.
We can go on indefinitely in asking who won the fiscal framework battle. Yes, the Treasury model is being used. We call it levels reduction. Yes, the UK is reimbursing Scotland for any money it would have received under the indexed per capita deduction in place. In effect, one side is happy saying, “The Treasury model is being used”. The other side is happy saying, “Yes, it is being used but we ain’t going to be disadvantaged because at the end of the day the per capita will be involved”. How far has that taken us? It has taken us five years down the road in terms of politics. We will have to come back and see how far it takes us down the road in terms of finance.
There is a big picture here as well, which nobody has mentioned. This will be the biggest ever transfer of powers to the Scottish Parliament. In fact, it will have as much autonomy as it had in 1707. It has demanded both good will and compromise to reach that position.
On that particular point, I commend the Government for their work in this area. However, in terms of the reporting of the fiscal framework, it could be helpful if the Government teased this issue out. The fiscal framework states that the Government will be required to produce reports on the implementation and operation of new powers in line with those produced under the Scotland Act 2010. Will this be done on an annual basis? If not, when will such reports be published? If we are to have an independent review, it should be set up very quickly and should not wait until the last minute, as we had to do with the fiscal framework now, where eight weeks of Smith translated itself into a secret cabal deciding it and then presenting it to us. We should have that transparency so that that independent commission can report to Parliament on an annual basis. By doing so, there will be transparency and individuals can look at it from the two no-detriment principles—particularly the second, of fairness to UK taxpayers.
This is a solution. Is it a neat solution? We can argue about that until the end of the day but there is a political momentum on this issue with the political parties in Scotland. The Government have responded to that. We wish them well in the negotiations.
Lord Forsyth of Drumlean
I entirely accept the Minister’s argument that if we were to move to a needs base, or whatever, there would have to be transitional arrangements. However, what about the point that this fiscal framework has given the Scottish Government a veto on any new settlement, which means that the transitional arrangements would become permanent?
Lord Dunlop
I am coming to that point. The idea that it would be easy or straightforward to replace the Barnett formula with a needs-based one—or seek to do so—does not stand up to scrutiny. I have read, with great interest, the report of the House of Lords committee on the Barnett formula, published in 2009. John Swinney, now Deputy First Minister of Scotland, gave evidence to that committee’s review and made it absolutely clear that he did not support the move to a needs-based formula. There has been lots of talk about a veto. Another way of putting that is that if you do not have a veto then the UK Government unilaterally imposes something on Scotland. In that situation, we would have to proceed as we have done in this fiscal framework agreement—by negotiation and agreement.
The no-detriment principles have been raised several times in this debate. I have talked directly to people who sat on the Smith commission including the noble Lord, Lord Smith, himself. The commission recognised that these were high-level principles. It was always accepted that the two Governments would have to sit down and decide how those principles were applied in practice. It is not surprising that there is a greater level of detail and a lot of talk about the direct effects, which we want to capture mechanically in the agreement. However, the indirect, spillover effects are very difficult to capture, because of the causality. It is the direct effects which we are seeking to capture in this agreement. Although there is a backstop power to deal with the spillover effects, it will be used rarely. One needs to draw a distinction between the review, where we need to proceed and get an agreement, and the dispute resolution mechanism, which is very much attached to specific issues regarding how spillover effects actually work.
I turn to the review itself. It is obvious and self-evident that this is five years away. The details of the review have still to be determined. I am not going to stand here today and say otherwise, because noble Lords would not accept it. The Government would positively welcome the House of Lords Economic Affairs Committee feeding in its views about how the review should be structured. That would inform the deliberations we will have with the Scottish Government about constructing that review.
Lord Dunlop
I think I am right in saying that it does require this Parliament to establish the Scottish Fiscal Commission as a statutory body but I am happy to clarify that in more detail, perhaps in succeeding debates that will deal with this issue. That is certainly my understanding.
Lord Forsyth of Drumlean
Presumably my noble friend is anticipating using the Henry VIII clause for that purpose. Can he just explain to me how it can be right that the Scottish Parliament—in my view, quite rightly—and the Scottish Government have insisted that the fiscal framework should be available to the Scottish Parliament before it gives approval to this legislation but he is maintaining that that should not apply to the House of Commons?
Lord Dunlop
I am not sure that is what I am maintaining. The fiscal framework is available to this House and to Parliament and we are having a debate about it now.
Lord Dunlop
I think that we are debating the fiscal framework at this moment. As to whether there will be debates on the annual reports, it will up to each House to decide what debates it wants to have on them and what scrutiny it wants to give. Given the interest in the subject, I anticipate that there will be detailed scrutiny.
Lord Forsyth of Drumlean
I am sorry, but my point to my noble friend is this. The Scottish Parliament will decide whether it is going to give legislative consent to this Bill, which will have the effect of making the Bill reach the statute book. It has the opportunity of discussing the fiscal framework because we now have one.
Lord Forsyth of Drumlean
Yes, it has the opportunity of approving it, whereas the House of Commons has not had the opportunity to do that. What possible justification can there be for not giving the elected Members of the House of Commons the opportunity to consider the fiscal framework, which has implications for the whole of the United Kingdom, when the Scottish Government have quite rightly insisted that they would not give legislative consent without the Members of the Scottish Parliament having an opportunity to consider it? I honestly think that my noble friend has to concede that there has to be an opportunity for the House of Commons to be treated in exactly the same way as the Scottish Parliament.
Lord Dunlop
That is a matter for the House of Commons; it is not a matter for the House of Lords. The House of Commons has decided to pass the Bill through its stages, in full knowledge of what the state of play was on the fiscal framework.
Lord Dunlop
I will give way one more time but throughout the passage of the Bill, I think that I have taken every intervention and I really need to make progress.
Lord Forsyth of Drumlean
We are all extremely grateful to my noble friend and very sympathetic to the position in which he finds himself. However, he says that it is a matter for the House of Commons. If we were to pass my amendment then it would go back to the House of Commons, so it is a matter for the House of Lords whether the House of Commons will get the chance to consider it.
Lord Dunlop
For the reasons that I have explained, the Scottish Parliament is giving its legislative consent to the Bill and this House is being asked to approve the provisions of the Bill, so we are absolutely on the same footing.
Turning to the review of the fiscal framework, this is an agreement between Governments and it will be operated by Governments. Ultimately, therefore, the formal review should be conducted by Governments. However, as I have said, there is plenty of room for independent contributions. We have built an independent report into the review process for the first time for Scotland’s fiscal framework and, as I have said, I hope that the House of Lords Economic Affairs Committee will contribute its views on how this report should be structured. In addition, there is nothing to prevent other independent voices giving their views to either Government at any stage.
Let me reassure the House on one final aspect of Amendment 57AA. It is already our stated intention to have an independent report for the end of 2021. My expectation is that report will be published, although it will be for the Government of the day to determine that.
Finally, I turn to Amendment 57AC, tabled by my noble friend Lord Forsyth. I fully support the principle behind this amendment, as Governments should be accountable for all the public money that is spent, in whatever context. However, the Scottish Parliament already has an important scrutiny role over more than £30 billion-worth of spending. I therefore think it is primarily for the Scottish Parliament to monitor how the Scottish Government use the funds they will have to implement devolution following the Smith commission. I hope and expect that it will fulfil this role vigorously.
To reassure the House, I point to the scrutiny afforded to implementation of the Scottish rate of income tax following the Scotland Act 2012. The Scottish Parliament has taken on a significant role here, holding the Scottish Government to account. However, this does not mean that the UK Government and this Parliament are without a role. As I have said, we have committed to report annually to Parliament on the operation of the framework. I know those reports will receive full scrutiny. I therefore ask my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
My Lords, we have had a lengthy debate in which we have covered a lot of ground. However, a number of questions remain unanswered, which makes the case for both Houses to have an opportunity to consider the fiscal framework. I am extremely grateful to the many eminent and distinguished Members of the House who took part in the debate. I will not list them all as we need to get on, but I find it difficult to resist making one point to the noble Lord, Lord McFall. He said that the Scottish Parliament will be in the same position in terms of its powers as it was in 1707, and I will leave the House to speculate on who is playing the role of Queen Anne in that respect. It is, I might gently suggest, a slightly ridiculous position, although the big difference with 1707 is that it was not then dominated by one political party.
When I used to go to European Council meetings, I would always take the advice of the noble Lord, Lord Kerr, when he was in charge of UKRep. I am tempted to take his advice and withdraw Amendment 56ZA, but give notice that I will divide the House on Amendment 68.
Lord Higgins
I entirely take the point which is made about the later amendment, but I merely suggest to my noble friend that the vote will become detached from the debate which we have had now. We could go over the whole process again on the other amendment but that does not seem a very sensible way of proceeding. I would have thought, given the debate, we are much better really taking a decision now.
Lord Forsyth of Drumlean
I always listen very carefully to my noble friend. I therefore beg leave to test the opinion of the House.
Lord Hope of Craighead
My Lords, I support what the noble Lord, Lord Kirkwood, has said. Even with the advantage of the websites, it is very difficult to get an accurate and up-to-date version of amended legislation. If you go to the official website, you usually find that mention is made of amendments which have not yet been incorporated into the legislation as shown on the website. That time lag makes it very difficult for ordinary people to see exactly what the content of the legislation is. I think I am right in saying that when the Law Commissions were set up they had a function to keep an eye on the need for consolidation. If the Minister is not inclined to accept the amendment proposed by the noble Lord, Lord Kirkwood, perhaps he might, through his offices, encourage the Scottish Law Commission to get to work on consolidating these measures in a way that would be useful for anybody working in the Scottish Parliament or who was trying to understand what the current legislation really is.
Lord Forsyth of Drumlean
My Lords, I will speak briefly in support of Amendment 60, tabled by the noble Lord, Lord Kirkwood of Kirkhope. I am sure the Minister will be advised that it is not necessary to include this in the Bill but it would be excellent if he were to give an undertaking at least to produce a draft Bill. I am not a lawyer, but I have certainly found it extremely difficult to cope with the piecemeal changes that have been made over the years and to follow the cross-references back to the 1998 Act. The noble Lord has made probably the most sensible suggestion of the evening.
I presume the noble Lord, Lord McAvoy, will not press his amendment to a Division or anything of that kind. The Labour Party is in its debating society mode at present. When the Minister responds to the amendment, which is about setting up this welfare monitoring joint committee, will he answer a question I asked earlier, arising from the fiscal framework? Paragraphs 16 and 17 appear to contradict each other. Paragraph 16 says:
“For welfare, and all other spending unless stated otherwise in this agreement, the chosen method will be the Barnett formula”.
However, paragraph 17 says that,
“whilst achieving the outcome delivered by the Indexed Per Capita (IPC) method for tax and welfare”.
This is very important, because it makes a considerable difference to the amount of money that is available for welfare purposes in Scotland. Will the Minister indicate which I am to believe: paragraph 16, which would involve a substantial cut in the current budget, or paragraph 17, which appears to contradict it?
Lord Dunlop
My Lords, I thank the noble Lords, Lord McAvoy and Lord Kirkwood, for their amendments. I turn to Amendments 56F and 57B, moved and spoken to, respectively, by the noble Lord, Lord McAvoy. We had a good debate in Committee on similar amendments and I hope I was able to provide much detail on the joint working and scrutiny that will govern the transition and implementation of the new welfare powers. The Government are clearly sympathetic to the intent behind the amendments and the importance of a seamless transition that makes sure that the ultimate clients for welfare services are not in any way disadvantaged.
At the heart of the UK and Scottish Government scrutiny and implementation of these welfare powers is the Joint Ministerial Working Group on Welfare, which, as I said in Committee, has met four times since February 2015 and will meet again soon after the Scottish parliamentary elections. I have also given the assurance that I will explore how we can make the work of the Joint Ministerial Working Group on Welfare more visible in this place. I am already acting on that promise. Scottish and UK government officials will discuss the issue tomorrow at the next meeting of the joint senior officials group before it is then raised at the next joint ministerial group, which will take place after the Scottish parliamentary elections.
Beyond the range of work I have already outlined, there are other committees, both in the UK and the Scottish Parliament, which will have a role in the scrutiny of the new powers being devolved. For example, the Minister for Employment will be appearing in front of the UK Parliament’s Scottish Affairs Committee on 9 March to give evidence on the welfare and employment powers that are being devolved through the Bill. Ministers also often appear before committees in the Scottish Parliament to aid the scrutiny of Scottish Government proposals. Most recently, the Secretary of State for Scotland appeared before the Scottish Parliament’s Devolution (Further Powers) Committee just seven days ago to discuss issues such as the fiscal framework and the role of the Joint Ministerial Committee on welfare.
Lord Dunlop
For example, we have worked to build a strong relationship with the Convention of Scottish Local Authorities to ensure that universal credit is implemented and delivered in a way that best reflects the views of Scottish local authorities. Citizens Advice Scotland is another organisation that we have engaged with. This has been a genuinely joint approach to improve delivery in Scotland and is just one example of many.
As I said in Committee, I am sympathetic to the noble Lord’s intention in what his amendment proposes to achieve but we believe that robust, strong and effective mechanisms are already in place. We will absolutely put the customer at the heart of any change and will work with the Scottish Government to ensure that the transition and implementation of powers is simple, clear and effective. This will protect the delivery of existing benefits and customer interests, and ensure a great future for all the people in the UK, including those in Scotland.
Turning to Amendments 58 and 59, spoken to by the noble Lord, Lord Kirkwood, Clause 29 gives the Scottish Parliament legislative competence to establish employment programmes to support disabled people and those at risk of long-term unemployment. It devolves power over support for unemployed people through employment programmes currently centrally contracted by the DWP; this is mainly but not exclusively the Work Programme and Work Choice. These two programmes represent virtually all funding across these contracted employment programmes and therefore, in our view, provide the Scottish Government with a significant policy space within which to operate.
The powers are very broad in scope and concurrent with the UK Government’s powers. Any claimant on a reserved benefit at risk of long-term unemployment can be addressed in this way, so the Scottish Government have the ability to create schemes, programmes or grants in this space as the UK Government can. It gives the Scottish Government the ability to better align with the employment support they already provide through the devolved skills system. That is a very substantial package of powers which the Scottish Government can already use. I think the estimated annual spend in this area is some £600 million.
Support for those at risk of long-term unemployment must last for at least a year. The three restrictions seek to define the space which Smith said that the Scottish Government should have in designing new programmes. This creates clear lines of accountability between what the Scottish Government are able to do and what Jobcentre Plus is required to do. It is also important for there to be a clear handover point, so that Jobcentre Plus and Scottish Government programmes do not try to deliver different support to the same claimant at the same time. Jobcentre Plus will continue to deliver smaller-scale support, with the Scottish Government delivering more significant interventions.
The amendment of the noble Lord, Lord Kirkwood, would remove the limitations that assistance should be for persons claiming reserved benefits and be for at least a year. These limitations are necessary safeguards to ensure that those who need support over and above that provided by the enhanced Jobcentre Plus offer receive assistance for an intense period. Smith was clear that Jobcentre Plus and the conditionality regime “will remain reserved”. As I have said, there needs to be a clear handover point so that Jobcentre Plus and the Scottish Government’s programmes are not overlapping in that sense.
It is vital that the Jobcentre Plus work coaches have the right tools to support claimants into work and smaller-scale employment programmes at their disposal, such as mandatory work activity or locally commissioned support via the flexible support fund. If responsibility is split, the result could be people spending longer on benefits and employment support, and if we remove these restrictions, it will in the Government’s view create a confused, muddled system of support which claimants and third sector organisations would struggle to understand or navigate. That would be a much worse system and have unintended consequences. We have sought to strike the right balance: enabling the Scottish Government to provide employment support for people who are at risk of long-term unemployment, and giving the Scottish Government the opportunity to take clear responsibility over a substantial portion of the claimant journey.
Finally, I turn to Amendment 60, which concerns “Consolidation of the Scotland Act 1998”. We addressed points in Committee about the scope of the powers in the Bill related to welfare. Once the Bill is passed, it will be available on legislation.gov.uk, alongside the Scotland Act 1998 and the Scotland Act 2012. In the Government’s view, it would not be a good use of Parliament’s time to bring forward another Bill simply to repeat what is included in previous Scotland Acts. The dynamic nature of the devolution settlement means that the two Governments work together on Section 30 orders, which adjust the terms of Schedule 5 from time to time, so any consolidated version would quickly be out of date. That is no bad thing; it is testimony to the devolution settlement working responsively.
However, the points made by the noble Lord, Lord Kirkwood, raise an interesting question about knowledge of the devolution settlement more generally. I think that the noble Lord, Lord Smith, referred to it in his personal recommendations. The Government very much support the objective and have taken steps to improve the knowledge in UK government departments and beyond. For example, in March 2015 the UK Government published a leaflet explaining the changes to devolution in Scotland. The Secretary of State has also undertaken visits to local authorities and is keen to ensure that they know what powers are coming to the Scottish Parliament. The Scotland Office communications directorate’s work will also seek to make clear the Scottish Government’s existing powers—powers coming into force from the Scotland Act 2012 and those being delivered by the Scotland Bill. Its work raises awareness not just of the debate on what powers may or may not be devolved in future but on where the existing powers are today. With that, I ask the noble Lord to withdraw his amendment.
Lord Forsyth of Drumlean
Before my noble friend sits down, could he possibly answer the question I asked him about the welfare funding and the two paragraphs in the fiscal framework? If he does not have that information now, perhaps he could write to me.
Lord Dunlop
We have agreed that welfare will be funded through the Barnett formula and that tax deductions will be calculated through the comparable model. However, during the transition period, we will reconcile both to index per capita.
Lord Forsyth of Drumlean
Perhaps my noble friend could help me. Does that mean that if the Barnett formula model resulted in a shortfall in the resources available in Scotland for welfare, it would be topped up?
Lord Dunlop
It means that if you look across the total Scottish budget, it would deliver the outcome that we discussed earlier. It is up to the Scottish Government to decide how to use the resources within that: it is not ring-fenced within that total figure.
Lord Stephen (LD)
My Lords, this is all complex, although perhaps not as overwhelmingly complex as the fiscal framework itself. However, I am very pleased that the Government have brought forward amendments to respond to the views of the Delegated Powers and Regulatory Reform Committee. At this late hour, I do not intend going into all the detail, but it is interesting to note that, instead of—as the noble and learned Lord, Lord Hope, my noble and learned friend Lord Wallace of Tankerness and I proposed—deleting words and cutting back on these very wide and open powers to Ministers to change primary and secondary legislation here, in Northern Ireland and in other parts of the UK, the Government have introduced extra words to try to restrict those very wide powers. The restrictions are welcome; I would still have preferred such wide powers for Ministers—given inadvertently, I think—to be removed.
Doubtless, however, due to the political imperative, at this hour we will all accept the Government’s approach and amendments. I close by thanking the noble and learned Lord, Lord Hope, for raising the issue and the Law Society of Scotland for the hard work that it has done on the detailed wording that it provided to us in presenting our amendments. I hope that, through constructive opposition to the Government, we have a set of measures brought forward by them that respond to the correct concerns voiced about the nature of the Bill as drafted. I look forward to the Minister’s explanation, so that we can make sure that all the points of concern have been covered.
Lord Forsyth of Drumlean
My Lords, I wanted to delete this clause entirely in Committee, and was persuaded that the approach being taken by the noble and learned Lord, Lord Hope, was perhaps more forensic and justified. I agree with the noble Lord, Lord Stephen, that half a loaf is better than no loaf. This is a very useful example, both in the original draft and the slightly grudging response from the Government, which we can discuss when we come to debate the Strathclyde review and the Government’s attitude towards the use of secondary legislation.
Our previous debate, when we spent 10 minutes arguing whether the House of Commons ought to be able to discuss the fiscal framework, to my mind underlined an Executive who are increasingly treating Parliament as the ornamental part of the constitution. That is very regrettable.
I thank my noble friend for at least moving as far as he has, but I would not want him to think that the Bill as it stands is in any way acceptable. I hope that on a future occasion we will have more opportunity to discuss the increasing use of secondary legislation. If it is not a Henry VIII clause, perhaps it is now a Queen Anne clause, in deference to the noble Lord, Lord McAvoy, who thinks that this is putting the Scottish Parliament in the same position as it was in 1707.
Lord McFall of Alcluith
Yet again, the noble Lord has got it wrong—it was me who said that. However, let us finish on a positive note tonight. First, I would like to thank the Delegated Powers Committee for its report, because it was very clear at the beginning that the Scotland Office provided a delegated powers memorandum, the explanation of which was inadequate. As a result of that, I thank the noble and learned Lord, Lord Hope, for tabling these amendments, and the noble Lord, Lord Norton of Louth, who made an excellent speech last time on the Henry VIII powers.
The Law Society of Scotland was mentioned, and Michael Clancy has been sitting in the box for many weeks, although he is not there tonight. He has been helping us—and I well remember taking over the shadow Home Affairs responsibility in the 1990s for the Labour Party, when Michael was helping one and all political parties. So I thank him, too.
As the noble Lord, Lord Forsyth, said, it is better to have half a loaf than none. It is important to say that the Government have not outlined totally why the consequential powers are required in Parts 1, 4, 5 and 6, in every other respect. Perhaps the Minister will at this stage give your Lordships’ House some indication of the type of saving powers that the Government expect to propose. As the noble and learned Lord, Lord Hope, said in Committee, if we are going to keep faith with what we are trying to achieve, the Government have to go that step further. With those comments, I commend the work that noble Lords have done and the response that the Government have given to the suggestions.
Scotland’s Fiscal Framework
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Lord Forsyth of Drumlean (Con)
My Lords, I thank the Minister for enabling us to have the fiscal framework before we complete consideration of the Bill. To paraphrase Robert Burns, now that the First Minister, Nicola Sturgeon, has been bought and sold with English gold, could my noble friend give an assurance that the same generosity that has been given to Scotland will be applied to England, to the English regions, to Northern Ireland and to Wales? In particular, could he confirm the briefing that was given to the Times by a “Treasury insider” that, had this settlement been in place since 1999, Scotland would have got all the money from Barnett—that is, 20% more per head than in England—plus an additional £6 billion? If so, surely the rest of the United Kingdom is entitled to be treated with similar generosity.
When the Minister says that this is a transitional arrangement for five years that will be subject to agreement, is not another way of putting that there will be a veto on the part of the Scottish Government to prevent any change? Does he really think that this delivers a deal that is fair to all parts of the United Kingdom?
Scotland Bill
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Lord Forsyth of Drumlean (Con)
My Lords, we had quite a good discussion about this in Committee. This amendment, together with Amendments 4 and 5 in my name, is centred on the question of the extent to which we wish to maintain the sovereignty of this United Kingdom Parliament and the extent to which we wish to litter our legislation with declaratory statements that have no meaning whatever in order to make political capital on the part of the Government or someone else.
Regarding the Statement delivered a few moments ago, at first I thought that my noble friend had misread it when he referred to “Scotland’s two Governments”. Scotland has a United Kingdom Government and a devolved Scottish Government, but this use of language, which is designed to appease the separatists, is now being included in our legislation. Amendment 1 would simply put back into the Bill the original drafting that the Government presented to the House of Commons. The wording proposed in my amendment was perfectly satisfactory to the Government because it reflected the Government’s position, but the wording was changed to meet an amendment put forward by, I think, the Scottish nationalists.
There is a great irony here. My amendment is about the authority and nature of the United Kingdom’s constitutional arrangements. I—perhaps rather naively—thought that the Scottish nationalists were in favour of breaking up those arrangements, and I did not really understand why a Conservative and unionist Government would wish to help them in that process. At present, line 9 on page 1 of the Bill reads:
“The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements”.
My amendment would simply put back the words “recognised as” so that the Bill read, “The Scottish Parliament and the Scottish Government are recognised as a permanent part of the United Kingdom’s constitutional arrangements”. If the words “recognised as” are included, that implies that there is another body that recognises that—that body being the United Kingdom Parliament. However, the statement currently in the Bill as amended by the nationalists in the other place flies in the face of our constitutional tradition that no Parliament can bind its successors. It also flies in the face of the Government’s own rule that legislation should not be used for declaratory purposes.
We had indeed a very long debate about this in Committee, but I have looked in vain for any amendments from the Government to address any of the arguments that were put forward. The Constitution Committee produced a very serious report. The noble and learned Lord, Lord Hope of Craighead, spoke at great length. There were a number of contributions, but all of them have been ignored. They have all been ignored because the Government’s mantra is, “We have to implement what the Smith commission report indicated and there can be no departure from it”. But, of course, this clause is a departure from the commission’s proposals.
My Amendment 4 provides that, on page 1, line 17, we should leave out “Scotland” and insert “the United Kingdom”. As currently drafted, the Bill provides:
“In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.
My amendment would make it a decision of the people of the United Kingdom voting in a referendum, because we are still a United Kingdom and, indeed, the Scottish people have only very recently voted overwhelmingly to achieve that.
I thought that my noble friend would accept my amendment in Committee—I realised that he would have to go away and think about it—but perhaps he will now accept my Amendment 5, which provides:
“Nothing in this section alters the sovereignty of the United Kingdom Parliament”.
What has become of us that a Conservative and unionist Government are making declaratory legislation on the face of a Bill but are not prepared to accept as an amendment the words:
“Nothing in this section alters the sovereignty of the United Kingdom Parliament”?
No doubt there will be an opportunity for us to discuss the fiscal framework when we get the fiscal framework, but, looking at the Statement that has been made, where we have given the Scottish Parliament a veto on the terms by which it is financed—we have given that away—I have to say to my noble friend that we appear to be engaged in a long-term process of appeasement which undermines the authority of the United Kingdom Parliament. These amendments are an attempt, in at least a declaratory form, to set the record straight. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I am as disappointed as the noble Lord, Lord Forsyth, that some of the points that were raised—indeed, all the points that were raised—in Committee on Clause 1 have met with no response from the Government by way of amendment. My amendment in this group is Amendment 2, which is directed to the wording of the new Section 63A(3). I am repeating points that I made in Committee which were designed to achieve greater clarity. In some respects, the need for greater clarity is revealed by the amendment that the noble Lord, Lord Cormack, has tabled and, indeed, by the comments of the noble Lord, Lord Forsyth, just a moment ago.
There were two particular points in new subsection (3) to which I drew attention last time and to which I draw attention yet again. The first is the phrase,
“a decision of the people of Scotland”.
The first question is: what kind of decision? What majority, if any? Is it to be by simple majority or something else? Merely to use the phrase “a decision” does not tell us what the mechanism is to be to record that decision in a way that would have effect. The second is the phrase, “the people of Scotland”. Is the referendum to be confined to people who are in Scotland, or are any people who can claim they are of Scotland to be allowed to participate in the referendum?
My amendment seeks to clarify those matters by saying that the,
“referendum has been held in Scotland”;
and, secondly, that the decision is to be that of,
“a majority of those voting”—
in other words, a simple majority only.
Unless those points are tidied up and greater clarity is achieved, the uncertainty which I suggested lurked within the current wording of the subsection will remain. I hope very much that the Minister will feel able to reflect yet again on the need for clarity. It is a feature in various parts of the Bill that a great deal of clarity has been achieved. It is disappointing that, in the constitutional part of the Bill—Part 1, which has very great significance—the clarity which is present in other parts of the Bill is not being achieved. It is for that reason that I have come back yet again on Report with the points that I made earlier, in the hope that they will still receive attention.
Lord Empey (UUP)
My Lords, if I may follow the point just made by the noble and learned Lord, Lord McCluskey, I said in Committee that I believed the outcome of the Smith commission had the status of a treaty. I did not say that in any negative fashion, but I have seen all this before. Once these deals are done, we are going through the motions here. There is a political imperative: all the Front Benches signed up to whatever happened a week or 10 days before the referendum. What we have before us is the same procedure that flows from Europe, goes into the mixer in Whitehall and comes out as Smith-plus. That is where we are. It does not matter what the merits are of the amendments of the noble Lords, Lord Norton of Louth, and Lord Forsyth, or of any other noble Lord. The political decision has been taken and the Front Benches are paralysed, because they have reached a position, for political reasons. We know it, all noble Lords know it; the dogs in the street know it. That is where we are.
Lord Forsyth of Drumlean
Is the noble Lord suggesting that we are all wasting our time?
Lord Empey
Perish the thought of such an outrageous consideration, but I suspect that the Government will be impervious to our arguments, if I might put it that way. The reason is that a political decision has been taken. We all know that. I happen to think that the Front Benches are wrong. I have had many years of experience of dealing with nationalism. It is a perfectly legitimate aspiration, in Wales, in Scotland, in Ireland or anywhere. There is nothing wrong with it. It is part of our national life. However, it is a fundamental mistake to believe that if you give folk the power, they will make such a mess of it that the people will be relieved to get rid of it when the time comes. That is not going to happen.
I think the noble Lord, Lord Cormack, referred to the Danegeld. We have been doing this in Ireland for years—decades—and all it has done is grow, sustain and feed the forces that are anti-British. We will have later amendments where the very word “British” is the issue, irrespective of the substance of the matter we are debating. Therefore, I understand where the Minister is at. He is a very articulate and capable Minister but he has a concrete block and there is nothing he can do with it except present it to us and, sooner or later, it will be nodded through.
Lord Keen of Elie
I am obliged to the noble and learned Lord, Lord Hope of Craighead. It determines clearly and unambiguously that there can be no question of any unseen, secret understanding between the United Kingdom Government and the Scottish Government when his proposals in the amendments have their source in Scotland, with the Scottish Government. That perhaps puts that in its place.
On the question of the referendum, I reiterate the point that I made earlier: this is a wholly hypothetical situation.
Lord Forsyth of Drumlean
Will my noble and learned friend deal with the point about the people of Scotland, as opposed to the people in Scotland?
Lord Keen of Elie
I am obliged to my noble friend for reminding me of the question. As I said earlier, we are dealing with a wholly hypothetical situation. It is not envisaged that this will ever arise, but in the event that it does, the question of who will be engaged in the referendum and the manner in which it will be conducted will be determined at that time according to the circumstances that exist at that time, rather than by some predetermination, perhaps millennia earlier. That remains the Government’s position on that point.
Lord Forsyth of Drumlean
My Lords, I have come to the view that the noble Lord, Lord Empey, tactfully suggested—that we are actually wasting our time. I beg leave to withdraw the amendment.
Lord Forsyth of Drumlean
My Lords, I would like to speak briefly to my Amendment 11, which would delete the words,
“without the consent of the Scottish Parliament”.
The noble and learned Lord, Lord Hope of Craighead, has, in Amendment 7, tabled an amendment which I think came from the Scottish Government. I have to say that I do not particularly like that amendment, which is supported by my noble friend Lord Norton of Louth, because what it sets out is what has actually happened by grandmother’s footsteps over the years, as the noble Lord has just pointed out.
The original basis of the Sewel convention was as a kind of courtesy. It was a convention that we would not normally do something without telling, asking or consulting the Scottish Parliament first. However, it has been turned into a veto for the Scottish Parliament on legislation that affects devolved matters. That is a huge change from what was intended at the time of the passage of the original Scotland Bill in 1998. I am clinging to the past with my amendment. I thought that the convention had gradually been changed into something far greater and therefore my amendment seeks to take out,
“without the consent of the Scottish Parliament”.
I also support the amendment in the name of my noble friend Lord Cormack, which would leave out “normally”. I know that the Minister is a very successful advocate and a very important Scottish lawyer but perhaps I may give him a little bit of advice based on my experience as Secretary of State. When the noble and learned Lord, Lord Hope of Craighead, was the Lord President of the Court of Session and the noble and learned Lord, Lord McCluskey, had a distinguished career as a Scottish judge, both of them gave me quite a hammering on occasion. I discovered that if I got into a fight with them, I usually lost. I am not a lawyer but it seems as clear as night follows day that the word “normally” is going to be a problem. We had a long debate about this in Committee and I cannot for the life of me understand why the Minister has not brought forward amendments to deal with it.
Lord McCluskey
Has the noble Lord thought of suggesting to the Minister that perhaps he could take an informal word from the noble and learned Lord, Lord Mackay of Clashfern, who also had a rather distinguished career in the law?
Lord Forsyth of Drumlean
Indeed, and there is another voice in support of the amendment tabled in the name of my noble friend Lord Cormack and supported by the noble and learned Lord, Lord McCluskey. It is incomprehensible why the word “normally” should be included.
The noble Lord, Lord Stephen, is quite right. What was the Sewel convention has changed into something else. It is a veto, and that is almost certainly what the Smith commission was thinking of. The noble Lord is absolutely right about that. Amendment 7, moved by the noble and learned Lord, Lord Hope, would in effect give legislative effect to what has come to be the practice. Putting into statute what Lord Sewel, back in 1998, said by way of explanation of how the relationship between the two Parliaments would operate is a complete nonsense—a point made over and over again in Committee.
I am hoping to cast a fly here and catch those on the Opposition Front Bench. The great mantra that we have had from them over and over again is that we absolutely have to be true to the Smith commission and make sure that its recommendations are implemented. Amendment 7 would provide for that. So are the Opposition Front Bench going to speak against an amendment whose effect would be to deliver the Smith commission proposals—something that the noble Lord, Lord McAvoy, said he would never do? I look forward to hearing the response from that Bench. It is clear that Amendment 7 would deliver what the Smith commission is proposing. I do not like it because I would prefer this Parliament to be free to pass legislation, consulting the Scottish Parliament in a courteous way but not giving it a veto, which is what I think the Smith commission was seeking to do. I am utterly opposed to leaving in the Bill the word “normally”, which would almost certainly result in the courts being dragged into a dispute between this Parliament and the Scottish Parliament, and that would be thoroughly undesirable.
For all those reasons, I think I am inclined not to press my Amendment 11 when the time comes, but to switch sides and support the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lord Norton of Louth—who is undoubtedly constitutionally correct—and to support my noble friend Lord Cormack in taking out this word “normally”. There are two words that I would like to take out of the Bill: one is “normally”, and the other is “Sewel”. I tried to do that in Committee and actually got past the clerks an amendment which deleted “Sewel”; but unfortunately, due to the intervention of noble Lords opposite, who argued that it was not really terribly good to alter the name of a clause in that way, I was not able to press it again at this stage in the consideration of the Bill. I think it was the noble Lord, Lord Stephen, who was responsible for that.
I say to my noble friend that the great advantage of accepting Amendment 7 is that we would get rid of “normally” and we would get rid of “Sewel”; and we would have something that is absolutely clear in statute and delivers the Smith commission proposals—which, we keep being told, is what this Bill is all about.
Lord Norton of Louth
My Lords, I have added my name to Amendment 7 in the name of the noble and learned Lord, Lord Hope of Craighead, as has already been mentioned.
As has been stressed, this clause is supposed to embody the Sewel convention. Let us be clear as to what a convention is. We are talking about a convention of the constitution. A convention is a non-legal rule of behaviour that is considered binding by those who are covered by it and is justified by being, as David Feldman put it, “right behaviour”. There is a moral imperative, and compliance with the rule is invariable. Invariable practice, lacking a moral base, does not establish a convention. Usual practice, as distinct from invariable practice, does not establish a convention.
Conventions develop: a precedent is set and followed and a practice is established from which there is no deviation. In addressing this House in 1998, Lord Sewel recognised that a convention is something that developed. However, his use of the word “normally” meant that what he had in mind was not and could not be a convention. What has developed is a practice, and one that has extended beyond what he said.
Clause 2, as it stands, makes no sense. Conventions may be transposed into statute, but once in statute the convention has gone; it has been superseded by statute. We saw a recent example with the convention governing votes of confidence in the House of Commons. That has been superseded by Section 2 of the Fixed-term Parliaments Act. There is no longer a convention. What we have with Clause 2 is the inclusion of the words of Lord Sewel in a form that does not constitute a convention but with the Government believing that it is a convention and seeking to maintain it as a convention even though enshrined in statute. I was going to say that I hope that that makes sense, but of course it does not make sense. This clause is nonsense.
The Government cannot justify it on the grounds that it implements a recommendation of the Smith commission, because it does not—that point has already been stressed. The Smith commission recommended putting the Sewel convention on a statutory basis. There is a Sewel convention, as we have heard, but it is different from what Lord Sewel enunciated in 1998. Putting the words of Lord Sewel on the face of the Bill does not put the Sewel convention in statute. Indeed, the clause as it stands narrows and undermines the convention. It narrows it by omitting a practice that has developed and been pursued on a continuous basis, and it undermines it by removing the essential feature that established it as a convention. A convention, by definition, establishes the rule of behaviour that is taken as binding by those who engage in that behaviour. Clause 2 permits, in effect, the Government to say, “We are bound by, this except when we decide not to be bound by this”. What is in the clause is not a convention: it is a declaration of good behaviour.
Lord Mackay of Clashfern (Con)
My Lords, some time ago I indicated to the noble and learned Lord, Lord McCluskey, that I support his approach to this clause. It is vitally important to consider the question of whether it is intended that the clause, whatever its terms, should be subject to decision by a court of law. The situation so far as Wales is concerned—and I think it would be true for the Scottish Parliament—is that in some cases its powers are subject to judicial scrutiny. The Parliament of the United Kingdom is not of that kind. It has never had its principal functions subject to judicial scrutiny. If a term is put into this Bill, which will then become an Act, that determines when the United Kingdom Parliament can act, that will be a complete innovation. It does not matter what the terms are, however precise and well drafted, I cannot see how that could be excluded unless provision is made in the Bill which states that the decision on this point is to be a matter for the United Kingdom Parliament. This I regard as an extremely serious point which the Government have to decide.
It is not a question of agreeing with the Scottish nationalists. The amendment tabled by the noble and learned Lord, Lord Hope, seems to be in accordance with what they would like to see; that is, the furthest stretch of the convention, which is called the Sewel convention for various reasons, amounting to what is really a complete ban. That is what I think the amendment of the noble and learned Lord, Lord Hope, does, but that does not cut out by itself the idea that a court of law could determine whether the United Kingdom Parliament had acted lawfully in making an Act which could affect Scotland. That is why I strongly support Amendment 12 tabled by the noble and learned Lord, Lord McCluskey. That concept must be put into this clause at some point in order that the matter be not justiciable.
Lord Forsyth of Drumlean
Does my noble and learned friend think that Amendment 7, which he says stretches the convention as far it goes, sets out what has actually become the convention now or does he think it has gone beyond that?
Lord Mackay of Clashfern
What has become the convention now seems to be government papers. As far as I am concerned, I had not heard of them until this discussion. It is certainly not a convention of the Houses of Parliament in the sense that they are narrated in that context. But I am not so concerned about the precise terms in which this finishes up. What I am very concerned about is that it should not be subject to a judicial decision. The Parliament of the United Kingdom has never been subject, certainly in the present situation, to the courts of law and I think that it would be a tremendous mistake to make provision in a Bill which could only have that effect.
Lord Davidson of Glen Clova (Lab)
My Lords, normally when the loyal Opposition hear valid and powerful arguments from many noble Lords and noble and learned Lords, they listen acutely and seek to put their weight behind those observations, particularly when they are put into an articulate amendment. However, in this case we will not support these amendments.
I suspect that the question “Why?” might come from the lips of certain noble Lords. It is our judgment that the political imperative suggests this position: if any of these amendments are passed by this House, they will be overturned in another place. It will be immediately accepted that that would be wholly undesirable. I notice the unfortunate distortion of the normally calm features of the noble Lord, Lord Forsyth, but he will fully understand, as one of the United Kingdom’s most able politicians over many years, that political imperative can be of considerable importance.
Lord Forsyth of Drumlean
I was puzzled by the noble and learned Lord’s assertion that he would be unable to support this because throughout endless hours of consideration of this matter, we have been told repeatedly that the Opposition are here to ensure that the letter of the Smith commission is delivered. The amendment in the name of the noble and learned Lord, Lord Hope, would do precisely that. We have been correctly advised that the clause is defective and does not do that. So the Labour Party will actually prevent the implementation of the Smith commission proposals. I venture to suggest that that is an albatross that some people may hang around its neck.
Lord Davidson of Glen Clova
I appreciate that the ornithological reference might necessarily be unhelpful to the party that I represent at this particular moment in time. However, the wording of the Smith commission is not to be treated as if every single word has been precisely defined. One of the great traditions of the British approach to such matters is to retain a certain flexibility in the way one deals with issues as and when they arise. When they arise, one occasionally notices other constitutional observations.
Lord Forsyth of Drumlean
I appreciate that we are on Report, but when the noble Lord describes this as an innovation which is undesirable, is it not one that was recommended by the Smith commission?
Lord Davidson of Glen Clova
I am slightly surprised that the noble Lord offers such support for this amendment. I will explain my surprise. I do not see this as an exact simulacrum of what Smith proposes. This is an attempt to change the sovereignty of this Parliament. I do not understand that the Smith commission was quite so ambitious in the way it wished to proceed. I hope that that answers that question.
Lord Davidson of Glen Clova
I consider that it has never been the role of the loyal Opposition to increase the wisdom of Members of this House but we often attempt to leave them better informed. If I have wearied noble Lords over these 18 minutes, I apologise, but I offer this one little candle of comfort—I will weary them no more.
Lord Forsyth of Drumlean
Before the noble and learned Lord sits down, could it be that the political imperative is that he has been told by the Chief Whip down at the other end of the building, “Under no circumstance accept any amendment, however sensible it be”?
Lord Davidson of Glen Clova
Sorry, who is the Chief Whip in the other place? I am afraid it is not a man or woman I have ever met, so if there is some suggestion that I have been “nobbled” and my arm pushed up my back by some person wholly unknown to me, I think I would have noticed. The suggestion that my noble friend Lord McAvoy would in any way try to persuade me of anything—
Lord Keen of Elie
I cannot accept that because of the language employed. It was not the convention that dictated that; it was a practice that grew up as a consequence of the convention having been entered into. It reflected, for example, working note DGN 10. That is why I say there was a clear understanding by the parties not only in 1999 but in October 2013 of what was meant strictly by the Sewel convention. I also commend to the noble Lord the heading to paragraph 22 of the Smith commission report, which was also agreed to by the parties to the Smith commission. It makes it abundantly clear what the parties understood was meant in this context by the Sewel convention.
I quite appreciate that over the years practice has developed and no doubt practice will continue to develop, which is one reason you do not want to freeze practice in statutory form. What you want to express in statutory form is the strict requirement of the Sewel convention and its scope. It is important to remember that by doing that we preserve not only the convention as it is understood and has been understood but the sovereignty of this Parliament. For this Parliament is sovereign and can legislate for devolved matters, just as the Scottish Parliament can legislate for devolved matters.
The matter that Lord Sewel was addressing when setting out the principle that this Parliament would not normally legislate with regard to devolved maters without the consent of the Scottish Parliament was this: to make it clear that, despite Parliament’s sovereignty, the devolved legislature would be left to get on with the business of legislating in devolved areas. No one wanted the prospect of legislative ping-pong between the two Parliaments. That is also set out—as I say, quite clearly—in the memorandum of understanding, as it has been revised on seven occasions and agreed to by the United Kingdom Government and the Scottish Ministers.
The question of the words “not normally” was raised. The noble and learned Lord, Lord McCluskey, among others, pointed out that the word would be justiciable. Of course, all the words of a statute are justiciable in the sense that you can go to a court and ask the court what it believes they mean. But it is not the word that is not justiciable, it is the issue. The question of whether the United Kingdom Parliament can legislate in devolved areas is not justiciable. It is for the United Kingdom Parliament to decide whether on some occasion it will do what it normally, usually or generally does, or will not do so, for it is a sovereign and supreme Parliament. That underlines the importance of the words “not normally” and to remove them from this clause would be to impinge on the sovereignty of this Parliament in a most unprecedented and extraordinary manner.
Lord Forsyth of Drumlean
I am listening very carefully to my noble and learned friend and basically he is saying that the Sewel convention is working perfectly well; everybody understands what it is. We are hearing from very expert opinion that the clause as it stands is rubbish and is subject to judicial challenge, so why does he not just drop the clause and stick with what is working, which is the convention as it exists?
Lord Keen of Elie
I am obliged to my noble friend for his invitation. I refer to the recommendation of the Smith commission report, which was that it should be put on a statutory footing, and this Government are determined that it will be put on a statutory footing. I hope that answers my noble friend’s inquiry.
That brings me to my noble friend’s Amendment 11, which he spoke to but followed up with the comment, “You can ignore my amendment”. I would like to treat that as a precedent in the case of my noble friend but not on this occasion. If he has spoken to his amendment, I have to respond to it.
Lord Keen of Elie
Given the noble Lord’s invitation to ignore it, it is more than a novelty; it is rather generous. Be that as it may, I come back for a moment to the question of justiciability. The noble and learned Lord, Lord McCluskey, and others of your Lordships have sought to ensure that the provisions of Clause 2 will not create a justiciable right. I understand and appreciate the reasoning behind that amendment, but our position remains that it is not necessary because Clause 2 cannot and does not create a justiciable right. I emphasise that it is not a question of whether the word “normally” is justiciable, as every word of a statute is in that sense capable of being interpreted by a court. It is the issue that is not justiciable. I return to a point that I mentioned briefly—
Lord Elton (Con)
Perhaps I could clarify the situation. As I understood it, when those remarks were made, we were discussing Parts 2 and 3 of the Bill. That is when any new regulations might apply; they do not apply this evening.
Lord Forsyth of Drumlean
Further to that point, perhaps the noble Viscount could confirm that that is the position. To be fair to my noble friend, he said that it was a matter for the usual channels, but we were led to believe that the usual channels would accede to this. It would be completely unacceptable if we did not have that flexibility for Parts 2 and 3, particularly as all the Statement today said was, “Haven’t we done a great job?”. It did not tell us what this was about: we are not getting that until tomorrow, which is Thursday. Although the House is sitting on Friday, there is not a great deal of time for people to absorb it.
Viscount Younger of Leckie
My noble friend Lord Dunlop did indeed refer to discussions that might be taking places among the usual channels, but my clear understanding is that no decision was made for Report today.
Lord Forsyth of Drumlean
I did actually ask my noble friend to give us an assurance that, as far as Monday is concerned, that will be the case.
Viscount Younger of Leckie
I cannot as yet give an assurance on that. The rules on Report remain in place for today.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(8 years, 2 months ago)
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Lord McFall of Alcluith (Lab)
My Lords, I thank the noble Lord, Lord Stephen, for speaking to the amendments. We are generally supportive of a number of them but, as my noble friend Lord McAvoy said earlier, the Labour Party’s aim is to ensure that the Bill gets on the statute book. It is with that realistic element in mind that we debate these issues. The noble Lord, Lord Forsyth, shakes his head, but he has been shaking his head all night—and for years—on this issue. It is important that we are constructive. I am proud that we have been constructive on this side in helping the Bill to become an Act, therefore ensuring that the relationship between the Scottish Parliament and the UK Parliament gets off on the best foot. I am sure that government Ministers will be on the same level as us on that sentiment.
We support Amendment 29, tabled by the noble and learned Lord, Lord Wallace, the noble Lord, Lord Stephen, my noble and learned friend Lord Davidson and my noble friend Lord McAvoy. The amendment would give the Scottish Parliament legislative competence for equality of opportunity relating to the Scottish functions of Scottish and cross-border public authorities, including non-executive appointments to public boards. It also clarifies that the Scottish Parliament’s power to modify the Equality Act 2010 is limited to making provision that enhances the protection and promotion of equal opportunities. Our Amendment 30 would amend Amendment 29 and give the Scottish Parliament the ability to set quotas for candidates at Scottish parliamentary and local elections. I also speak in support of Amendments 31 and 33, which we have co-signed with the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Stephen.
I start by addressing Amendments 29, 31 and 33, which have been drafted by the Equality and Human Rights Commission. First, we place on record our thanks to the EHRC for its work and its continued support throughout the passage of the Bill. Taken together, these amendments have a significant impact on the Scottish Government’s ability to tackle inequality. As the noble Lord, Lord Stephen, has just said, the amendments will give the Scottish Parliament legislative competence in respect of equality of opportunity in Scottish and cross-border public authorities, including non-executive appointments to public boards. They clarify that changes to the Equality Act can only enhance the protection and promotion of equal opportunities, which at present is insufficiently clear.
They also ensure that the Scottish Parliament is not limited in its capacity to act in relation to non-executive appointments to public boards. Finally, they give the Scottish Parliament legislative competence over the public sector equality duty. The Minister stated in Committee that,
“devolving the duty itself is a step too far”. —[Official Report, 19/1/15; col. 674.]
However, he seemed to be arguing that this was more for bureaucratic reasons than anything else. If that is the case, I submit that the Government should look carefully at these amendments to see what can be done.
Lord Forsyth of Drumlean
The noble Lord is making a case for these amendments but, as I understand the Labour Party’s position, it is committed to ensuring that no amendments are made to the Bill. So why are we sitting here at 10.06 pm listening to advocacy for amendments which his party is determined should not actually get on to the statute book?
Lord McFall of Alcluith
Actually, I remember, at the beginning of the day, the noble Lord being very robust about Clause 1 and threatening to bring the house down; then he did not press his amendment. Why is he so vigorous at one stage and then so weak and wobbly-kneed? He should stay by his conviction and put the vote to the House, so that he can find out what their measure is. What is sauce for the goose— I will let him finish it.
The Minister mentioned in Committee that devolving the competence to the public sector itself would be a step too far. The Government should look at these amendments to see what can be done. We would like to think that the measured reason we have at this Dispatch Box could influence the Minister before the end of the day. That is why we are standing here, doing our public duty after 10 pm, and I am sure that I will get acclamation from all sides of the House for that.
I agree with the Minister that we must be cautious about creating excessive burdens on private and voluntary groups. I urge the Government not to simply dismiss the idea out of hand. There will clearly be challenges—we accept that—but these have to be weighed against the outcome of fundamentally altering our society’s approach to equality. Our Amendment 30, which takes the somewhat unusual step of amending an amendment, increases the scope of Amendment 29. As I have made clear, we support Amendment 29, but we believe it could go further. Indeed, it needs to go further to ensure that the Scottish Parliament reflects the society it represents.
Amendments 31 and 34 would require political parties to publish diversity information in relation to Scottish elections. Of course, transparency is important and we expect the Minister to agree with us in mentioning the initiative when it comes to pay. However, from experience we are aware that, despite this action, the problem remains a negative feature of our culture and society. Indeed, when it comes to pay, at the current rate of progress it will take nearly half a century for women to be paid the same as men. This demonstrates that we need to go further than Her Majesty’s Government are apparently prepared to go. The Scotland Bill provides a vehicle to do just that.
More can be done to promote gender equality in politics. In fact, the intent of Amendment 30 is to give the Scottish Parliament the ability to set quotas for candidates at Scottish parliamentary and local elections. Under the leadership of Kezia Dugdale, Labour has made substantial progress on this issue. Research from Women 50:50, which I thank for its continued support and guidance, revealed that 52% of the constituency Labour candidates and 50% of the Labour list candidates in the upcoming elections are women, compared with just 15% and 14% respectively for the Conservatives. So a determined and committed leadership shows what can be achieved by introducing candidate quotas. I hope that we can make this the norm across Scotland. It is an extension of the principles of the Smith commission since Smith advocated that the Scottish Parliament should have more autonomy over equality provisions in society. If they are good enough for the public bodies in Scotland, it is surely illogical to argue that we would not want the same for the Government who represent Scotland. Indeed, as Women 50:50 says:
“We need a fair number of women in parliament so that women’s lived experiences exist in policy-making. The system and the policies it creates disadvantage women if there are not enough women round the table to actually represent their views. It is crucial to democracy and to women across Scotland to be represented fully”.
This amendment, combined with amendments already referred to, would help to continue to challenge this fundamental disparity which we have in our political structures. With these amendments we invite Scottish society to play its part in bringing about the more equal, fair and inclusive society that everyone wishes for Scotland. We should hold our elected representatives to those same high standards. In accepting these amendments, the Government would bring about such parity. I hope that, even at this late hour, debating these issues can stimulate the Government to think differently and perhaps result in a changed outcome before we next meet next week. With that, I beg to move.
Lord McAvoy
However, let me deal with those who are. Earlier, the noble and learned Lord, Lord Wallace of Tankerness, shared with the House a conversation that he alleges he had with the Labour Whips’ Office. I do not know whether it is true, but in my 23 years in the House of Commons conversations with the usual channels and with Whips were sacrosanct. But seeing as how the noble and learned Lord has seen fit to venture into this territory, I shall share, in further defence of our strategy of trying to influence not only the UK Government but the Scottish Government, a statement from the noble and learned Lord to myself at the Bar, which I would not normally share, in which he indicated that the Liberals were going to use the vote on the Crown Estate for election leaflets in the islands. So here we are—the Scotland Bill is reduced to a political gambit for cheap political point-scoring. [Laughter.] The noble Lords may laugh and scoff, but they are the only ones who are doing so. Therefore we are taking the honourable position of trying to influence, not just engaging in gesture politics and staging votes for cheap political points, and we hope that we have influenced the Government—we will see what their response is—and the Scottish Government as well.
Lord Forsyth of Drumlean
My Lords, I will briefly speak to Amendments 41 and 42. I thank the noble Lord, Lord Faulkner of Worcester, for having tabled these amendments and for putting the case so eloquently. We had quite a wide-ranging discussion in Committee and I am very disappointed indeed that the Government have not come forward with proposals—a number of constructive options were suggested.
I have been trying to think of two words to explain the conduct of the Official Opposition over the Bill, and “kowtow” would sum it up. They are utterly terrified to say anything that could be interpreted in any way as not being in line with the Smith proposals or as doing anything that might upset the Scottish Government, which is very disappointing, particularly in the context of this issue.
As the noble Lord, Lord Faulkner, pointed out, the British Transport Police has for nearly two centuries served our country extremely well. It is a while since I was Secretary of State but I remember the important role it had in ensuring that we were able to cope not just with terrorism but with drug traffickers and other criminals who use the transport network. It is a highly specialised area and it is an act of utter vandalism to break up the British Transport Police in the way that is being proposed.
It is a particularly stupid of the Government to go along with the idea that the British Transport Police should be fragmented and the Scottish element of it included in Police Scotland which, I am sad to say, is in Scotland regarded as something of a joke and a disaster. Prior to the Scottish Government making the changes we had independent police forces operating extremely effectively throughout Scotland. The advocates of devolution decided to take power away from those police forces and centralise them into Police Scotland, and the results have been disastrous as regards communications and operational failures. I place responsibility for this not on the individual members of the police force but on the Scottish Government, who have created this chaos. Both the notion that we should break up the British Transport Police and hand it over to an organisation which has just sacked its chief constable and appointed a new one to sort out its problems, and the amendments which have been put forward by the Labour Party tonight which suggest that we set up a quango to help deal with the problems of implementation and administration, are just breathtaking in the scale of their irresponsibility.
We have no reason to interfere with the operations of the British Transport Police, so what offends the Scottish Government about it? The noble Lord, Lord Faulkner, put his finger on it: it could be the B word —the fact that it is called “British”—which offends. However, this is not a Scottish issue but a United Kingdom issue. It is about the security of the United Kingdom as a whole. I very much hope that the Minister will think again about the options which have been put forward in the amendments tabled by the noble Lord, Lord Faulkner, about how we can maintain a British force.
The Earl of Kinnoull (CB)
My Lords, the noble Lord is developing a very interesting point. I wonder whether, in doing so, he would like to refer to the no-detriment principle—principle number 5, of which I can hand him a copy now—and whether or not this offends that principle of the white sacred document, the Smith commission report.
Lord Forsyth of Drumlean
Indeed, I am familiar with the no-detriment principle, which is that policy changes on either side of the border should not have a negative impact on either country, and this is a classic example. So it is actually against the Smith commission proposals and, as the noble Lord, Lord Faulkner, pointed out, it is perfectly possible to maintain the integrity of the British Transport Police and meet the requirements of the Smith commission.
Can this be the same Government who are busy arguing that it is necessary for us to maintain our relationship with the European Union in order to maintain our security because of the importance of being able to share cross-border information et cetera? That same Government are now arguing and supporting a proposal that we should break up within our country a police force that operates cross-border. What is going to happen when the train gets to the border? Do the British Transport Police get off the train and somebody from Police Scotland gets on the train? How are they going to share information? What will the cost of all this be?
We have already had a glimpse of what might be in the fiscal framework: £200 million will be given to the Scottish Government to administer the welfare proposals that are being administered in large part in Scotland at present. That is money that would have been far better spent on welfare and not on bureaucracy. And here we are again. I always use the old cliche, “If it’s not broken, don’t fix it”. This is an organisation that has, as far as I am aware, served the public on the Glasgow Subway and throughout the rail network system. It is a specialist area, with the force operating on trains in dangerous circumstances using an experienced cohort with an esprit de corps. No one I have seen in the British Transport Police or among anyone with experience in this area supports what is being put forward. It is being put forward in order to kowtow to this obsession with trying to put a kilt on everything. It seems to me that the Government would do well to consider the amendments that have been put forward by the noble Lord, Lord Faulkner, think again and come back at Third Reading with something that looks to protect the interests and security of the people on both sides of the border.
I listened to the noble Lord, Lord McAvoy. He said that, basically, this is all very difficult and, although we would like to do something, we cannot offend against the principles of the Scottish Government being able to decide these matters. I say to my noble friend the Minister in all seriousness: if there is an incident as a result of this change which would not have occurred otherwise, Ministers will find themselves suffering extreme criticism, and deservedly so. I hope that my noble friend will think again on this and come back with an amendment at a later stage that preserves the integrity of this important force.
Lord Empey (UUP)
My Lords, I would like to speak to Amendments 41 and 42, and then move to Amendment 44 standing in my name. First, I thank the Minister and his staff for facilitating meetings and discussions, and, indeed, the representatives from the Department for Transport for making themselves available. I would also like to commend the contribution from the noble Lord, Lord Faulkner, which was a tour de force of the situation that is in front of us.
When I tabled an amendment in Committee I never thought for one moment that the ripples would go out as they have—it seemed to strike a chord with people. We are fixing a problem that does not exist. The force’s figures and its success rate are all moving in the right direction. I have heard no criticism of the service delivery and am completely unaware of any proposal that would enhance the service. I have no doubt that officials, working with the Scottish Government, could come up with mechanisms to make the situation work. That is what civil servants do. My experience is that if Ministers ask them to do something, they do their best to deliver it, so something could be put together.
Lord Wallace of Tankerness
My Lords, paragraph 67 of the Smith commission report states:
“The functions of the British Transport Police in Scotland will be a devolved matter”.
That is a simple and straightforward sentence, but what lies behind it is actually very profound. My concern is that what is being proposed by the Government does not safeguard the functions of the British Transport Police if they are devolved. I respect and generally support the way it is being done in terms of exceptions to the general reservation under Part 2 of Schedule 5 to the Scotland Act 1998, but what we have heard is that the Scottish Government intend to put the British Transport Police under the ambit of Police Scotland.
I will not go into the woes of Police Scotland with the noble Lord, Lord Forsyth, and the noble Earl, Lord Kinnoull, who have both mentioned them, but even at its best one can readily imagine that once the BTP comes under the auspices of Police Scotland, if you are the chief constable and you have problems and challenges with regard to resources, you might well think, “Well, why do we have a specific police presence in Waverley station? Surely it can be covered by the police we have got who would otherwise be monitoring Princes Street?”. It would not be proper for politicians to interfere in the operational decisions of the chief constable. For operational reasons the functions of the British Transport Police under a different guise could be whittled away bit by bit.
Lord Forsyth of Drumlean
Of course there is also the complicating factor that part of the budget of the British Transport Police is actually paid for by the transport operators.
Lord Wallace of Tankerness
The noble Lord is absolutely right, and we aired these concerns when this was debated in Committee.
It is interesting to note in the submission made by the British Transport Police Federation to the Scottish Parliament Devolution (Further Powers) Committee that:
“In 2001, the government response to the DfT consultation which led to the BTPA’s creation … stated that: ‘The Government therefore considers that the national railway network is best protected by a unified police force providing a dedicated, specialist service and able to give proper priority to the policing of the railways’”.
The memorandum to the committee of the Scottish Parliament goes on to quote the Transport Select Committee of the other place in 2004, which,
“looked at the reforms to the BTP’s governance arrangements … It concluded that: ‘The British Transport Police is not a Home Office Force, and nothing we have heard suggests that it should become one. The railways are a specialised environment, with specialised needs, and need a specialised Force’. They continued: ‘The steady reduction of resources allocated to traffic policing leads us to agree with Her Majesty’s Inspectorate of Constabulary that unless there is a national force dedicated to policing the rail network, the task will not be given the priority it needs’”.
Our concern is that if, having devolved and lost control of this area and the Scottish Government exercise the devolved powers that they have to bring it under the direction of Police Scotland, the very concerns that were expressed by the BTPF and others will be borne out. The specialist services which the British Transport Police currently deliver could be lost over time, and therefore what the Smith commission argues is that the functions possibly could no longer be exercised.
Noble Lords have referred to a number of those functions, in particular tackling terrorism on our transport network. One I particularly note is that:
“The British Transport Police has created specialist teams with responsibility for the management of multi-agency support for local and national suicide prevention, mental health interventions and vulnerable persons encounters. An ongoing force-wide operation (Operation Avert) has so far achieved a 30% reduction in suicide attempts compared to the same period the year before”.
These are very profound specialist functions that the British Transport Police provide.
Lord Berkeley (Lab)
My Lords, I support my noble friend Lord Faulkner’s Amendments 41 and 42. I certainly will not repeat the excellent speeches made in support of these and the other amendments this evening. I will emphasise one or two things: first, how different policing the railways is nowadays. The noble and learned Lord, Lord Wallace, mentioned Waverley station, which brings me to crowd control of, for example, football crowds. The British Transport Police has an enormous and excellent reputation in ensuring safety of passengers on the Underground and ways into the Underground, and has ways of keeping them safe on the platforms themselves so that the train does not run into them and they do not get pushed on to the track. There is, sadly, the ongoing issue of terrorism and people trying to do nasty things to the trains, which can be very dangerous. There was an incident last Friday in Belgium where somebody put some concrete blocks on the track of a high-speed line. Luckily, the train did not derail, but that can happen anywhere. Again, having the local police going along and dealing with that might be all right, but there is a good chance that it would not be all right. We have to ensure that this specialism is retained and preserved in whatever happens.
My noble friend Lord McAvoy seemed to be saying that we should give the Scots everything they want in this legislation. That is an argument I do not have particular views on, except on the railways. If we want to give them British Transport Police separated from the rest of the UK, why not give them the railway completely? Why not give them Network Rail? There is nothing in the Bill that says Network Rail is going to be owned in Scotland, or separated from the UK. It probably does not particularly matter who owns the railway, but there is the matter of timetabling.
I spent many years in various discussions across Europe trying to encourage passenger and freight trains to move across frontiers without stopping for hours, minutes or sometimes days because the timetable is not co-ordinated. Of course, that could happen here if the Government give the responsibility to Scotland for having a separate timetable. I am sure it would not happen, because we are not that stupid, but it seems to me that if we are going to keep the railways as an integrated whole, and not make all the Virgin trains stop at Carlisle for everybody to get out and get on to a different train, why separate the police?
The other issue of which we ought perhaps to remind ourselves, also mentioned by the noble Lord, Lord Forsyth, and the noble and learned Lord, Lord Wallace, is the question of who pays. We all know that Network Rail at the moment pays 50% of the cost of the British Transport Police and the train operators, passenger and freight, pay the other 50%—I declare an interest as chairman of the Rail Freight Group. If I were a train operator in Scotland and I found that the BTP did not exist there and any policing on the railways was being done by the local bobby, I would say to myself, and to the politicians, “Why do I, operating a train in Scotland, have to pay for policing the railway, such as it is, but if I operate a bus, a car or a lorry in Scotland, I do not have to pay?”. And I would not pay, because it is very out of balance between road and rail—I would probably get nothing for it either.
At some stage, someone is going to have to work out who is going to pay for the policing in Scotland that will no longer be done by the BTP. There is absolutely no reason why the rail passenger or freight customer should have to pay for whatever policing they get and the main competitor, which is road, should not have to pay. Maybe the Minister already has an answer to that.
Lord Forsyth of Drumlean
Surely, under the no-detriment principle, what was previously being paid by the transport operators to cover Scotland would need to be provided by the Scottish Government in a cheque to the British Transport Police south of the border.
Lord Berkeley
I entirely agree with the noble Lord: that is the way it should be done. The operators in England do complain, occasionally, about what they get for their money—the British Transport Police probably spends half its budget in London, because London is very important, with the Underground. The fact remains that they all accept this, but they do expect to get the specialist knowledge, albeit sometimes in support of the local police, who may get there first. They know that the BTP is there to provide the specialist knowledge and make sure that everything they do is done safely. I feel very strongly about this and I hope that the Minister will give us some comfort. If not, we will have to see what happens.
Lord Dunlop
I particularly thank the noble Lord, Lord Faulkner. He always speaks on railway matters with such authority. I thank noble Lords for the other informed and authoritative contributions we have heard during this debate.
I think one thing is clear: all sides of the House are agreed that the British Transport Police does an excellent job of policing our railways. That is not in doubt. However, the issue this evening is whether this House will agree to devolve to the Scottish Parliament the functions of the British Transport Police in Scotland. As has already been said, the Smith agreement says:
“The functions of the British Transport Police in Scotland will be a devolved matter”.
The functions of the British Transport Police in Scotland are the policing of the railways in Scotland. The Smith Commission also stated in paragraph 19:
“Where the agreement provides that powers or competence in relation to a matter will be devolved, this is intended to mean a transfer of full legislative competence to the Scottish Parliament along with that of the associated executive competence to the Scottish Government”.
Clauses 42 and 43 devolve legislative competence in relation to railway policing in Scotland and designate the British Transport Police bodies as cross-border public authorities. This is devolution. It has been argued tonight that this aspect of the Smith agreement could be implemented in a different way by retaining the BTP as a single body but making it jointly accountable to Scottish Ministers and the Scottish Parliament. There is nothing in this Bill to prevent that outcome being achieved. The Bill does not dissolve the BTP. It does not mandate that the BTP should no longer operate in Scotland. It does not prescribe a model by which policing of the railways in Scotland should be carried out in future.
What the Bill does do is ensure that the BTP continues to operate in Scotland as now, unless and until the Scottish Parliament decides to pursue an alternative approach, and it ensures that Scottish Ministers are consulted on appointments to the BTP bodies. It will be for the Holyrood parties to set out in advance of the elections what their approach to the BTP in Scotland will be. The Scottish Conservative manifesto for the Holyrood elections will contain a clear commitment to retain a single nationwide British Transport Police—not absorbed into Police Scotland—but a BTP made more accountable to Scottish Ministers and the Scottish Parliament.
Lord Forsyth of Drumlean
I very much hope that the Scottish Conservatives will win more seats at the election but I am not anticipating them becoming the Government of Scotland. My noble friend must know that Scottish Ministers have made it clear that they intend to break up British Transport Police if they have the power to do so, and to amalgamate it into Police Scotland. Therefore, is it not a little disingenuous to imply that what the Bill provides will not threaten the integrity of the British Transport Police? It will indeed.
Lord Dunlop
I can assure my noble friend that I will not turn myself into Mystic Meg tonight and make a prediction about the Scottish elections. I am making a broader point because I think the real point is that embracing devolution means trusting the Scottish Parliament to act responsibly with the powers it is given, and respecting the ability of people in Scotland to hold its representatives to account. I fear that for this House to decline to support this provision would send out a clear message to Scotland that we do not trust its Parliament and the ability of people in Scotland to hold it to account. Should the Scottish Government and Scottish Parliament press ahead to legislate for, and implement, a different model for policing the railways in Scotland, and to integrate the functions of the BTP with Police Scotland, I believe it is reasonable to expect the two Governments, working together, to be able to put in place the necessary arrangements to ensure that the service remains as effective as it is today, that the transition is seamless and protects the interests of people on both sides of the border, and that there is no detriment.
Counterterrorism has been specifically referred to. I want to address that directly. The BTP currently undertakes counterterrorism policing of the railway. This includes a range of operational measures and deployments designed to mitigate and manage the terrorist threat. General policing is already devolved and arrangements already exist between Police Scotland, the BTP and Home Office police forces to ensure the effective delivery and co-ordination of policing, and we would clearly expect these to continue under any new model. The Scottish Government already work with a range of partners, including the United Kingdom Government, Police Scotland and the British Transport Police, to ensure that Scotland is protected from a range of threats, including terrorism. There are well-established national procedures in place for policing across regional and functional boundaries, and these will certainly continue to apply.
Going back to what I was saying about ensuring that the service remains as effective as it is today, that is what has happened with every act of devolution since the Scottish Parliament was set up in 1998. Officials are meeting regularly and both Governments are committed to working constructively and effectively on the detailed arrangements needed to enable the transfer of functions to take place. A senior-level joint programme board to lead and oversee the work to integrate the BTP in Scotland into Police Scotland, should the Scottish Government decide to press forward after the election in May, has been established by the two Governments and includes representatives of the two police authorities. The terms of reference for the joint programme board will be formalised following the Scotland Bill receiving Royal Assent, and I will be happy to share these with noble Lords. Once the Scottish Government have finalised their plans for the future model of railway policing, I will be happy to update the House on implementation plans. Before this, the Scottish Government have made clear their intention to engage with key partners and staff representatives to ensure that the specialist railway policing skills and expertise of British Transport Police officers and staff in Scotland are maintained.
I hope noble Lords will not press their amendments and will allow this provision to proceed. Of course, I will reflect on the discussions that have taken place but I cannot undertake to commit to any amendments.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(8 years, 2 months ago)
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Lord Forsyth of Drumlean
As an amendment to the motion that the House do now again resolve itself into a Committee upon the Bill, to leave out from “House” to the end and insert “declines to consider parts 2 and 3 of the Bill further in Committee until the updated fiscal framework proposed in Scotland in the United Kingdom: An enduring settlement (Cm 8990) has been published, as recommended by the Constitution and Economic Affairs Committees in a letter to the Parliamentary Under-Secretary of State, Lord Dunlop, on 28 January.”
Lord Forsyth of Drumlean (Con)
My Lords, I am grateful to the House for giving me the opportunity to move the amendment. I am particularly grateful to my noble friend the Chief Whip for persuading the House to consider the Scotland Bill in an order that meant we looked at parts 2 and 3, concerned with taxation and welfare, last. I am not so grateful to my noble friend for suggesting, on the whip, that my Motion was a fatal amendment. It is not a fatal amendment. All it seeks to do is to implement the advice of both the Constitution Committee and the Economic Affairs Committee that we should not go on to discuss the Committee stage until we have the fiscal framework. It would be fatal only if my noble friend the Chief Whip thought that we would never ever agree the fiscal framework. As my noble friend the Minister is indicating that agreement is imminent, I do not see why he is so concerned about delaying the Committee stage by a few days. I have to say to him in the gentlest terms, since he used the fishing analogy, that it looks to me very much like a sturgeon is playing him like a salmon.
From the very day he was appointed, I have rather unkindly been asking the Minister if he could give an absolute guarantee that the Bill would not be broughtbefore this House for consideration until the fiscal framework was agreed. He said that he hoped that would be the case because he expected it to be agreed by the end of the Summer Recess. We were then told that it would be in November; then, it was going to be in January; and most recently it was going to be on St Valentine’s Day—but there he was, sat at a table for two on his own, with no sign of the First Minister turning up to deliver the fiscal framework.
Lord McAvoy
I can understand why the noble Lord makes that point, but the nation and country of Scotland is awaiting the results of these negotiations. Whether the noble Lord likes it or not—and I certainly do not—passing the amendment would send this message to Scotland: “Westminster’s not agreeing. Westminster’s kidding you on. Westminster’s conning you. They don’t mean it and here they are obstructing Scotland yet again”.
Lord Forsyth of Drumlean
All my amendment does is say that we should not proceed with the Committee stage until we have the fiscal framework. It does not say that we should not proceed with the Bill or should not pass it. If the noble Lord’s argument is right, why would it not have been interpreted in the same way when we decided to delay consideration of Parts 2 and 3 until today?
Lord McAvoy
The noble Lord will have to accept that I do not agree with him on this, and I do not think he will agree with what I am about to say. The arrangements are designed to facilitate the passage of the Bill and the fiscal framework discussions. Quite frankly, I do not believe that that is the noble Lord’s intention; I believe it is his intention to kill off the discussions.
The atmosphere in Scotland is one of mistrust. I try not to make political points, but the result of the 2015 general election was, I maintain, a direct result of the Prime Minister’s triumphalist press conference in Downing Street the morning after the referendum when he sent the message, “English votes for English laws”, and hostility towards those who had voted yes. There was a sea change in Scotland, where all Labour Party seats were wiped out with the exception of one. We were seen to be conniving and in collusion with a Conservative Prime Minister.
On the other side of the coin, we have got the SNP, with its grievance culture, which is determined to attack Westminster and cast doubt on Westminster’s good intentions—unfairly, because I believe that the intentions here for Scotland are good on both sides of the House. I also think that there was an element of scare story when the noble Lord mentioned that I, the Labour Party and the Conservative Party were terrified of Scots. Terrified of my own people? I respect their desire. I respect their wishes—it is our job to facilitate them—and I believe that that is also the position of the House of Lords.
From the Cross Benches, the noble and learned Lord made it plain that the fiscal framework can still be discussed on Report. This is not a panic measure. This is not ifs, buts or maybes. This is the calmness for which this House is renowned. There will be plenty of opportunity if we can get these discussions to a conclusion. Certainly the indications give hope that we can get the conclusions.
Lord Selkirk of Douglas (Con)
My Lords, I should mention first that I was an MSP for the first eight years of the Scottish Parliament. I want to make a series of small points. The first is that an agreement between the Government and the devolved Scots Administration should not be beyond the wit of humankind, even in difficult circumstances. I hope that the Minister will keep negotiating and that his efforts will be rewarded with success.
I thought that the noble Lord, Lord Forsyth of Drumlean, not only made a persuasive case but made a particularly important point when he suggested that an amendment could be made saying that the Act must not commence until the fiscal framework was in place. My understanding is that the Bill cannot be implemented in the absence of an agreement as it requires a consent Motion in the Scottish Parliament. Without an agreement, no consent Motion will be passed. I hope that the Minister will look very carefully at my noble friend’s proposal.
Lord Forsyth of Drumlean
My proposal was that the Act should not commence until this House and the House of Commons had approved the fiscal framework. My noble friend is right that the only parliament that is going to be able to consider this Bill in the context of the fiscal framework is the Scottish Parliament, and that seems a bit odd to me.
Lord Selkirk of Douglas
My noble friend’s suggestion does not seem to have the disadvantages of the amendment, which I will come to in a moment, and I hope that it will be looked at sympathetically in some form because it could be an important step forward.
There is of course frustration in the Scottish Parliament about this. The convener of the Devolution Committee, Bruce Crawford MSP, recently stated there would be “a substantial impact” on the ability of the Scottish Parliament to go through the process of proper scrutiny. Obviously he was referring to what he regarded as unreasonable delays. He expects the teams from Holyrood and Westminster to appear before his committee tomorrow to give a full explanation of their position on a fiscal framework, whatever the circumstances. There is a strong group of 15 Tory MSPs in the Scottish Parliament. To the best of my knowledge they want the Bill to proceed, and they are the third largest group.
My concern is based on two factors. This could become a major issue in the forthcoming elections to the Scottish Parliament on 5 May. If there is no agreement, the Scottish electorate will most certainly want to know who to blame. If the Bill fails because the Scottish Government shrink from accountability then the SNP will have to take responsibility, but if the Bill fails because the noble Lord’s amendment delays it unreasonably then this House and unionist parties could become a lightning conductor for criticism.
My most important reservation is that the amendment could lead to a serious weakening of the United Kingdom. Noble Lords may wonder what the Scots really want. I think that the answer is given in three ways: in opinion polls, in the referendum and in the recent general election. My interpretation of the referendum was that there is a decisive majority in Scotland for the United Kingdom. That means that the Scots will want to keep the UK intact, which should be remembered and never forgotten. My interpretation of the general election results in Scotland was that it was a clear indication that a large majority of the Scottish people wish to have a Scottish Parliament with increased powers and responsibilities, and within a reasonable timescale. I do not wish this House to do anything that would give the SNP a major propaganda coup during an election because I am a passionate supporter of the United Kingdom.
There are three difficulties with the amendment. First, it could be used to prevent the promises made by the Prime Minister and other party leaders being fulfilled. That could easily enrage the Scottish electorate on the basis that promises should be kept. The second difficulty is that the timing is not totally convenient because the Scottish election campaign will pick up on this and it could become a major issue. The third and most important consideration is that the United Kingdom probably stands a very much better chance of long-term survival if we do not unreasonably delay this Bill. In short, it is the kind of amendment that could trigger the law of unintended consequences.
Finally, I had the privilege of working under my noble friend Lord Forsyth in the Scottish Office. I have no hesitation in saying that he was a very strong, powerful and highly effective Secretary of State, frequently coming up with extremely interesting and exciting new ideas. I will mention one of them as an example. He wished the Stone of Destiny to be returned to Scotland and he got his way: that was a tremendous achievement. The Stone of Destiny was put in a “Stonemobile”, and there was a terrific reception in Edinburgh Castle. Of course, the Scots were not going to be satisfied merely with a stone: they wanted more. I recall a story that when the Stone of Destiny was originally pinched from Westminster Abbey by some youngsters of a nationalist disposition, and the police were searching for it, a Scotsman from the back of beyond telephoned the police and said that he knew who the thief was. The police officer went round to see him and took out his notebook, and the old man said, “It was King Edward I”.
As I have said before, finding a really satisfactory way forward in this area is very much like walking a tightrope. The noble Lord, Lord Smith of Kelvin, put it very well when he said:
“The new powers set out in the Scotland Bill will lead to a transformation of the powers held by Holyrood and it would be a terrible shame if they were to fall away at this late stage”.
My noble friend Lord Forsyth of Drumlean has put forward an amendment that might be entirely logical, but the potential disadvantages, in my view, outweigh other considerations. Above all, we at all times have to keep in mind the essential need to protect, maintain and sustain the United Kingdom.
Lord Dunlop
I thank all noble Lords who have taken part in the debate for their contributions. Before I address some of the points that have been raised, may I first make a correction? It came as something of a surprise to me to hear that I had not responded to the noble Lords, Lord Lang and Lord Hollick. I certainly signed lots of letters and I understand that those were sent off in early February, and copied to the leaders and Chief Whips of the main political parties and the Convener of the Cross-Bench Peers.
Lord Forsyth of Drumlean
I apologise to my noble friend if that is the case, but I asked the Clerk to the Economic Affairs Committee if we had received a reply to the letter from the two chairmen and was told last week that we had not. Certainly, it has not been circulated to committee members.
Lord Dunlop
Well, it was certainly signed off by me, and my understanding was that the letters had gone off, but we will check that.
We want to secure the passage of the Bill and reach agreement on the fiscal framework. We can all agree that we want the focus at the Holyrood election to be on how the powers in the Bill are used. A number of noble Lords said that this House’s holding up consideration of the Bill would hinder the outcome that we all want and put the Bill’s timetable at unnecessary risk.
A number of noble Lords, including my noble friend, raised substantive points about the fiscal framework. One strong reason for proceeding today into Committee is so that we can have a debate and consider these matters in more detail. I very much agree with the noble and learned Lord, Lord Hope, that Report gives us an opportunity to consider these matters further. I was particularly interested in the suggestion by the noble Lord, Lord Hollick, which was also made by the noble Lord, Lord Turnbull, about using Committee rules at Report. I undertake to ask my noble friend the Chief Whip, who has been listening very closely to this debate, to speak to the usual channels to see if using Committee rules at Report can be agreed.
The Government are working flat out to get a fiscal framework agreement. As I said in my opening speech, there has been intensive discussion, which continues today. I remain optimistic that a deal can be reached soon. But today is not the day to speculate about what happens if we do not reach agreement and what options we might have to consider in that scenario. I therefore ask my noble friend not to press his amendment.
Lord Forsyth of Drumlean
My Lords, was that it? We have had a splendid debate with a lot of suggestions. I think there was a consensus that we could not put this Bill on to the statute book without having discussed the fiscal framework. It is interesting that former judges such as the noble and learned Lords, Lord Hope, Lord McCluskey and Lord Mackay of Clashfern, are advising us on the politics of the situation in Scotland and I am arguing about the constitutional implications. I feel that my expertise is more limited than theirs on both counts.
Of course, I understand why the noble Lord, Lord McAvoy, feels that if we were to delay consideration of the Bill, the SNP would complain that unelected Peers were interfering in the democratic decisions of the Scottish people and the Prime Minister’s vow—which, incidentally, was the Daily Record’s vow—had not been delivered. The noble Lord questioned my motives and said that I wanted to kill the Bill. I understand that the Bill will go on to the statute book; that will happen. But I want a stable, lasting framework that will end this business of the nationalists pretending that Scotland gets a bad deal out of the union and, at the same time, the other parts of the United Kingdom to feel that they are treated fairly. That is the objective, and the fiscal framework goes to the heart of that. Far be it from me to give advice to the Labour Party, but perhaps it should stop running away in Scotland and confront the nationalists for what they are and on what they say.
My noble friend said that the fiscal framework may be agreed before Report. The noble Lord, Lord Darling, for whom I have considerable admiration and respect, suggested that perhaps we might consider it on Report, but Report is the day after tomorrow is it not? Is the fiscal framework going to be agreed tomorrow? If so, perhaps it might have been sensible to delay Committee until Wednesday and then we could have had Committee with the fiscal framework. If my noble friend is right that the fiscal framework is imminent, clearly, it would be silly to delay Committee today and to accept my amendment—I am still speaking in favour of it, by the way—I can see that.
However, it was then suggested by the noble Lord, Lord Turnbull, and others, that perhaps we could change the rules. It is perfectly open to me or any other Member of the House to bring forward a Motion on Report to say that we should recommit the Bill to Committee. Therefore, there is no reason for me to press my amendment today if, indeed, we are going to get the fiscal framework on Report. If we are not, and if the view of the House is that the Bill ought not to reach the statute book without an opportunity for the House of Commons particularly, as well as ourselves, to consider the fiscal framework, then it is open to my noble friend to accept an amendment in Committee today. There are several amendments—I have one of them—stating that there should be a sunrise clause whereby the Bill will not come into effect until the fiscal framework has been agreed by both Houses of Parliament.
The noble Lord, Lord McAvoy, thinks that that would provoke hysteria in Scotland. I do not see why. The Bill will get on the statute book and they will get what they want. If it does not get on the statute book, it will be because of the intransigence of the SNP in agreeing the fiscal framework. One of the most important speeches was made by the noble Lord, Lord Stephen, who talked about the importance of transparency. We have also had speeches from a former Chancellor of the Exchequer, a former Permanent Secretary to the Treasury, a former Cabinet Secretary—they are both the same person—and all have advocated that we look at this issue.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(8 years, 2 months ago)
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Lord Kerr of Kinlochard (CB)
I rise to speak to Amendment 75A. I was in meetings in Glasgow this morning and came in during the earlier debate on the amendment to the Motion in the name of the noble Lord, Lord Forsyth of Drumlean. I heard his rousing peroration; I agreed with it. Had I been in the Chamber in time, I would have wished to speak in support of it. I agree with his “sunrise” Amendment 79H, which I guess he will speak to in a moment.
Mine is a much more mundane matter. My amendment concerns borrowing limits. I find that one of the difficulties of handling the Bill in the absence of the fiscal framework is not so much dealing with what is in the Bill as understanding why things are not in it. I do not know why no provision or regime for borrowing is set out. That is why my amendment proposes the principles for such a regime. It is a key element of the Smith commission report that there should be enhanced borrowing powers for the Scottish Government, and I agree with that. The core of Smith is paragraph 95, where the fiscal framework is discussed. The most crucial element for me, apart from indexation, is the borrowing limits—how is borrowing to be done?
We discussed this in the Economic Affairs Committee, and the report of the noble Lord, Lord Hollick, brings out that the committee did not believe that anybody would believe a no bail-outs rule. The committee firmly believes that it is necessary to be seen to stand behind Scottish borrowing. Scottish borrowing will be cheaper. It is clear to all that the United Kingdom Government stand behind it. The clearest way of spelling that out is to have a provision on borrowing in the Bill. I do not argue that we should set out specific limits in the Bill—that, clearly, is a matter for subordinate legislation, as my amendment suggests. However, it seems clear that we must set out the two categories of borrowing in the Bill, that they will be subject to ceilings, and that these will be negotiated and agreed in consultation with the Scottish Government but will be set by Her Majesty’s Treasury. That seems practical and commonsensical. It makes for cheaper borrowing for Scotland, which is, of course, also cheaper for the United Kingdom, since the United Kingdom will stand behind the borrowing.
If the borrowing is properly conducted, it will be as part of the United Kingdom’s programme. It will get slots in the programme if the United Kingdom wishes to issue bonds. I have no idea how big the increases needed are and what the current limits on Scotland’s borrowing powers are, and the Smith commission does not help a great deal on that. It states that,
“to reflect the additional economic risks, including volatility of tax revenues, that the Scottish Government will have to manage when further financial responsibilities are devolved”—
I agree with that—
“Scotland’s fiscal framework should provide sufficient, additional borrowing powers to ensure budgetary stability and provide safeguards to smooth Scottish public spending in the event of economic shocks, consistent with a sustainable overall UK fiscal framework”.
That is clearly true, but it does not help to define what “sufficient” means. I do not know whether this is a matter of controversy in the current fiscal framework talks, but I think we should be told. Is it agreed that there should be ceilings on Scottish borrowing? Is it agreed that that level should be set by the United Kingdom Government in consultation with the Scots? Has that level been set; that is, has it been agreed?
This is talking about current borrowing, but I must say that I think there will be the need for a considerable increase. My view is that “sufficient” is going to be quite a lot more than the Scots now have, although it is inconceivable that it would be sufficient to deal with ensuring “budgetary stability” and providing,
“safeguards to smooth Scottish public spending in the event of economic shocks”.
Let us remember that the oil price on Scottish referendum day was $115 a barrel. That is quite an economic shock, and borrowing in the markets is not a credible way of dealing with it. However, there is a common-sense case for a large increase because of the seasonality of tax income and the need to smooth over the year. That element is clear, but there could be controversy about what the level is, in which case I think we should be told because transparency does matter.
The second kind of borrowing, also covered in my amendment, is borrowing to support capital investment consistent with the sustainable overall UK fiscal framework. I agree that that makes sense. There will be public investment which should be financed by the markets, but I do not know whether that is controversial for Her Majesty’s Treasury. I do not know whether the UK Government buy that bit of Smith, or whether there has been a discussion about how much. I do not know whether this is one of the reasons for the hold-up on the fiscal framework, and I think we should be told.
Lord Forsyth of Drumlean (Con)
I wonder whether the noble Lord could help me. When he talks about setting a limit on borrowing, are we starting with a new baseline or is it assumed that the existing level of debt has part of it somehow imputed to the Scottish Government, so that we then start from that baseline?
Lord Kerr of Kinlochard
I hope that the noble Lord, Lord Dunlop, knows, but I do not think that any of the rest of us knows what this means in the Smith report. Alas, the noble Lord, Lord Smith of Kelvin, is not here today to tell us.
It could be argued that there is no need to have any of this in the Bill, and I would like to hear from the Government whether that is their view. After all, they could have brought forward a Bill which said nothing about borrowing, despite the fact that it was a key part of paragraph 95 of the Smith report covering the fiscal framework. If it is their argument that there is no need to say anything about borrowing, I want to know why. As I said at the start, I believe that borrowing will be cheaper for Scotland and therefore better for the United Kingdom and Scotland if it is clear beyond doubt that the United Kingdom stands behind it. If it does, it is then clear that the United Kingdom has the right and the duty to set limits on that borrowing. I repeat that those limits should not be in the Bill. They should be set by affirmative resolution of both Houses, but the provision to require that should be in the Bill, and that is why I have tabled Amendment 75A.
Lord McCluskey (CB)
My Lords, I shall speak to Amendments 79F and 79G. I have in my hands substantial notes. They were designed to enable me to present an elegant speech full of witticisms, insights and—though I did not realise I needed the permission of the noble Lord, Lord Forsyth—even some political comments. I took part in 1978, from the Front Bench, then occupied by a Government of a different hue, in the first Scotland Bill. I have had a long and lasting interest in these matters. Since I prepared this speech on 13 January much has happened. The field which I hoped to plough has become a dustbowl—so many people have walked through it, including in these debates today.
I shall try to keep my comments short, in light of the well-developed arguments, but clearly the fiscal framework has not been resolved. People have alleged that that is because of the complications. I do not believe that for one second. The civil servants involved are highly skilled and competent and have resolved all the complications. The difficulty is that there is a chasm between the UK Government and the Scottish Government in relation to a simple matter: how much? How much is the UK taxpayer going to have to provide to win the approval of the Scottish Government and, secondarily—the point raised by the noble Lord, Lord Kerr—in relation to borrowing powers? That is also very important.
As has been pointed out, the Smith commission report recorded that the representatives of five Scottish Holyrood parties had agreed the devolution of certain powers. Very well. It also said, at paragraph 95:
“Barnett Formula: the block grant from the UK Government to Scotland will continue to be determined via the operation of the Barnett Formula”.
That is not entirely surprising, considering the make-up of the Smith commission. Turkeys do not vote for Christmas. The members were voting for a continuation of the Barnett formula. The report also contained what was plainly a compromise, namely the so-called no-detriment principle in two manifestations, the first of which is vaguely comprehensible and the second of which is certainly not.
The Scottish representatives on the commission—and they were all Scots—were voting in favour because the Barnett formula was plainly very favourable to Scotland and everyone was afraid of the needs test. In fact, noble Lords who have read John Swinney’s evidence to the committee of this House on the Barnett formula in 2009 will know that that committee tried to pin him down on that. He would not answer, but simply kept repeating, “We want full fiscal autonomy”.
Lord McCluskey
Yes—that was, of course, part of the purpose of the article I wrote for the Herald, which the noble Lord, Lord McFall, was good enough to refer to.
Plainly, the Scottish Government were perfectly entitled to try to secure the most favourable deal they could. It was they who created this timetable that we are being asked to stick to. The timetable was to enable them to go to the electorate in May and present themselves as having achieved a great victory. They created the timetable and we are all supposed to bow to it. I just wonder about that. In relation to the rush to get it through, it also puzzles me that John Swinney is so anxious to get his hands on extra tax powers because, when the Labour Party in Scotland proposed an extra penny on income tax, he replied, “Over my dead body”. Now, we would not wish any harm to the Deputy First Minister, but he has obviously no intention of exercising these tax powers, so what is the rush? It is all to do with the electoral process of the Scottish Government.
Even the devolution of a minor thing, such as the introduction of air passenger duty, could turn out to be worth nothing because, as was pointed out very widely at an earlier stage of the passage of the Bill, Newcastle Airport is going to suffer considerable detriment if all the Scots in the north of England flock to Prestwick, Glasgow, Edinburgh or even further north to take advantage of reduced prices. They are going to suffer a detriment and that detriment is going to have to be met by whom? By the Scottish taxpayer. In other words, the Scottish taxpayer is going to have to find the money to send to Newcastle that has been saved by whom? By the airlines. It is bizarre. The whole thing is slightly mad.
Lord Forsyth of Drumlean
My Lords, I wish to speak briefly to my Amendment 79H, which I hope provides a way out for my noble friend on the discussions which we have had this afternoon, in so far as it suggests that the Bill, when enacted, should not commence until we have had the fiscal framework laid before both Houses of Parliament and there has been an opportunity to debate it. If I were the Minister, I would grab that because the prospect of moving another amendment proposing that we should not proceed to Report but should reconvene the Committee stage on Wednesday is something that I do not relish, as I am sure he does not either. However, if we get the fiscal framework tomorrow, there will be an opportunity for us to discuss it and therefore there will no need for this amendment. I very much hope that we will have it.
When I was Secretary of State and the noble and learned Lord, Lord McCluskey, was a very distinguished judge, he gave me a bit of a hard time on the reforms which we planned for the criminal law, which I am delighted to say the Labour Party subsequently implemented when it was in power in the Scottish Parliament. He said that I chided him about getting involved in politics—however, I would encourage him to get involved in politics. He has made a brilliant case for why we need clarity on the fiscal framework. I am prepared to support all the amendments that have been suggested because I have no idea what the Government’s position is on what the fiscal framework will be. As regards the proposal to have no detriment, it is the only time in 30 years in Parliament that I have seen witnesses reduced to laughter in giving evidence when they tried to explain what the no detriment principle actually means. Ministers cannot tell us what it means. The noble Lord, Lord Smith, cannot tell us what it means. My noble friend Lady Goldie was on the Smith commission. Perhaps she could tell us what she thinks the no detriment principle means. Without having the fiscal framework and without having a definition of that no detriment principle, it is meaningless.
However, my right honourable friend the Secretary of State for Scotland hit the nail on the head when he said that the Scottish Government want to have their cake and eat it. Perhaps that is what the no-detriment principle means. Perhaps during the recess, instead of negotiating and getting agreement in time for us to discuss it, they have all been off to see Mary Berry so that they can produce more than one cake. The difficulty is that you cannot produce more than one cake. When we were in government a long time ago and, faced with an onslaught from the Labour Party, we struggled to find a way of making devolution work, I had two problems. The first was that I could not solve the West Lothian question. I could not find a way of doing English votes for English laws that would not threaten the union and create all kinds of problems about voting on income tax and the Barnett formula. My second problem was that my officials said that if we were to create a Scottish Parliament and give it these powers, it would have to be responsible for raising its own money. That would mean it would have to be funded on a fair basis, compared to the rest of the United Kingdom, which would mean having a means-based system of funding of the same kind that we use to distribute money to local government, the health service and so on. That would mean the Secretary of State’s budget being cut by £4.5 billion.
We were pretty unpopular in Scotland, thanks to the efforts of the Labour Party, which presented us as anglicising Scottish education et cetera—but we will not go there. I thought that coming up with proposals which gave Scotland the ability to pass its own laws and raise its own revenue, but which would result in a reduction in the budget of 25% or so—£4.5 million—would not be particularly popular. I think the Smith commission and others have played around with ideas which seem politically attractive but they have not actually done their homework on the impact these would have. Amidst the language of fiscal frameworks and everything else, it is all very simple: the tax base in Scotland is slightly lower than that in England. Therefore, if you are going to raise your money from the tax base in Scotland you are going to have less to spend. The Barnett formula provides 20% more per head for Scotland than England. It was 25% in my day, but there has been some narrowing. If you take a grant that is 20% higher and replace it with a tax which is 20% lower, there will be a gap. It has suddenly dawned on the Scottish nationalists that their proposal will actually result in less money for services.
It has also dawned on the nationalists that if you give welfare services and the like to Scotland, they have to administer them. They are demanding £600 million to administer welfare services. My goodness, the Labour Party wants to get rid of the bedroom tax; so do the nationalists. There are all kinds of welfare benefits that people would like to see improved. The plan is to spend £600 million on administration, instead of on the benefits. That is crazy, and for what? So that we can say that it is misery made in Scotland because we are spending it on civil servants and a bureaucracy. That is what is being proposed here.
Lord McCluskey
I hope the noble Lord, Lord Forsyth, will forgive me for interrupting him. It sometimes happens the other way round. Does he appreciate that the £600 million is more than twice the amount that the Scottish Government indicated, in the White Paper, as the cost of running the whole of Scotland after independence on 24 March 2016?
Lord Forsyth of Drumlean
I do love the noble and learned Lord, Lord McCluskey, as a politician making these penetrating points. He is absolutely right; it is real. I am relying on what I read in the newspapers, but that is what they are asking for welfare, behind closed doors. They would rather spend the money on superannuated civil servants, just for the sake of saying, “This is being done in Scotland”. The money is the issue.
By the way, why is the Secretary of State not doing these negotiations? I was going to ring him up last week to talk to him and he was in Africa on Friday while these negotiations were going on. They are being run by the Treasury. If you are in a spending department like Scotland, the very last thing you want is the Treasury running your negotiations. Unusually, the Treasury appears to be being very generous. It is suggesting that the Barnett formula, which gives Scotland 10% of any increase in expenditure in England, should be extended to income tax and that Scotland should get, as of right, 10% of any increase of income tax that is raised in England. How is that going to go down in England? While the Scottish nationalist Government—who want to put up the top rates of tax—force all these top-rate taxpayers to move south and reduce the size of the tax base, the English are expected to send them a cheque to compensate them for the loss of revenue resulting from people moving out of Scotland. They run the benefit system for the disabled and unemployed. If they fail to get people back into jobs or to provide the support, England has to pick up the cost because those benefits are based on performance. No wonder they cannot reach agreement on no detriment or a fiscal framework. This is an argument about having a cake and eating it.
As the noble and learned Lord pointed out, if it agrees the fiscal framework, the SNP is now faced with the horrible prospect of going into a Scottish election and saying either, “We are going to have a bit more independence but we are going to have to make cuts in public services and put up taxes”, or, “We could not get these terrible people at Westminster to give Scotland a fair deal”. The truth is that there were years of lies when people said that Scotland got a bad deal out of the union and that the Barnett formula was unfair: those same critics now cling to that formula like a life-raft. All those people said that Scotland would be better off if it had more powers. By the way, that is not everyone in the Labour Party or elsewhere. All those people turned a deaf ear when people like Gordon Brown and the noble Lord, Lord Darling, who is in his place, warned that if you move to a system which is completely dependent on income tax—an idea which was, incidentally, produced by the Tories to overstep the Labour Party and the Liberals, but was not thought through—you create a situation where you are dependent on a lower tax base and there is no real electoral connection with defence and other UK-based expenditure. Throw in English votes for English laws and you are damaging the United Kingdom.
The fiscal framework, and how it is agreed, is central to whether or not we get a glue, a cement—a fair and balanced system. That is why the Bill should not become an Act and come into force until both Houses have had an opportunity to discuss it openly and fairly, with people in Scotland—who are entitled to fair dealing—seeing what the realities are and being able to make their choice. It is utterly wrong to go into an election pretending it will be all right on the night. If, at the end of the day, the SNP is able to say, “We got a fantastic deal out of Mr Greg Hands. We got extra money over and above Barnett. Vote for us again”, when what matters is long-term future stability, I do not know how long that deal will last; I do not know how it will operate. The Barnett committee, which I served on, and to which the noble and learned Lord, Lord McCluskey, has referred, suggested that, because there is a gap, there should be a 10-year transitional relief and we should move to a needs-based system of funding. I do not know whether that is being proposed or not, but it is essential that we have the opportunity to discuss it.
Why would my noble friend not agree to Amendment 79H, which prevents the commencement of the Bill until we have agreement? What possible reason could he have? The noble Lord, Lord McAvoy, will say that it will be misinterpreted in Scotland and we will be presented as wrecking the Bill. I say to him that it will be proceeding in parallel with the consideration by the Scottish Parliament which is, quite rightly, insisting that it should look at the Bill in the context of the fiscal framework. What is wrong with us proceeding in parallel with it and having a proper debate on both sides of the border? I beg to move.
Lord Forsyth of Drumlean
It might be worth having a look at the committee report that was done on the Barnett formula, which includes a full analysis of these issues. What is traditionally said about Scotland’s broad geography does not actually justify it. The conclusion was actually that Wales gets a rubbish deal, while Scotland is oversupported. But of course, that cannot be changed overnight and it therefore said that we should move towards a transitional system and that funding should be based on needs, in the same way as the Scotland Office—and later the Scottish Parliament—has distributed money to local government, the health service and the rest.
Lord Forsyth of Drumlean
Before my noble friend does that, will he actually answer the question? It was: how do you tell which is a direct effect and which is an indirect effect?
Lord Dunlop
One is a direct consequence of a policy decision, so in the example I gave of personal allowances, that is a direct consequence of a policy decision that is outwith the control of the other Government. It is not the behavioural or indirect effect, which is about how people react to a decision that is taken. That is the distinction that we are making.
Lord Forsyth of Drumlean
I am most grateful to my noble friend. May we just take the example that he gave—that was raised by the noble and learned Lord, Lord Wallace—of people leaving Scotland? If we have an SNP Government who decide to put the top rate of tax up to 60% and a lot of the WILLIEs and other people decide, “We are going to move south” and they tell their neighbours, “Actually we are moving south because we want to be closer to our children”, how will the Government know how much of the tax base has been reduced as a result of the Scottish Government putting up tax and how much as a result of domestic or other normal movement? There is no way that you can tell that effect. Why would it be appropriate to compensate in those circumstances?
Lord Dunlop
My noble friend misunderstands what I am saying. I am not necessarily saying that those should be compensated for. In the evidence that the Chancellor of the Exchequer gave to the Treasury Select Committee, he said:
“My personal view is that tax competition is something that we should allow”.
He is effectively saying that if there are different tax rates north and south of the border, that is something that we should not automatically try to compensate for. Another example relates to childcare. We all remember that at the time of the independence referendum White Paper, central to the retail offer being made by the SNP was its childcare policy. It was a matter of complaint that, were that policy to be successful and increase income tax revenues, the benefit of that would actually flow to the Treasury and not to the Scottish Government. Under the Smith package, if such a policy succeeded in increasing participation by women in the labour market, the benefits of that would flow to the Scottish Government.
Lord Dunlop
No, I do not believe that that would be a detriment in the sense that the UK Government would have to compensate the Scottish Government. The situation would apply; the Barnett formula would apply; the equivalent departmental spending from England would flow through to Scotland. I do not think that this package changes that at all. Although the ownership structure north and south of the border is different, the cost of this on both sides of the border is met in water bills.
Lord Forsyth of Drumlean
The Smith commission report says in paragraph 4a:
“Where either the UK or the Scottish Governments makes policy decisions that affect the tax receipts or expenditure of the other, the decision-making government will either reimburse the other if there is an additional cost, or receive a transfer from the other if there is a saving. There should be a shared understanding of the evidence to support any adjustments”.
On my understanding of what these words mean, with the precise example of the water industry, which I have repeatedly asked about in the past, how can my noble friend say what he has just said from the Dispatch Box when the words have a different meaning? Are we to understand that the Government are departing from the meaning of the no-detriment principle as set out there?
Lord Dunlop
No; we are not departing from the Smith agreement at all. It is the function of the negotiations. As I say, these are high-level principles, and the two Governments have to work out how these principles are applied in practice. That is what we are doing. The Barnett formula will continue to operate and determine departmental spending and how that flows through in Barnett consequentials. That will not change.
Lord Dunlop
The Committee will understand that at a very delicate time in the negotiations I do not want to comment on the state of the negotiations in detail. It is clear from the Chief Secretary’s letter that we have indeed tabled what the noble Lord described as a hybrid model.
I shall pick up on a point made by the noble Lord, Lord Forsyth. We are seeking to avoid—I think the Secretary of State for Scotland put it this way in a recent debate—the Scottish Government wanting to have their cake and eat it and have a slice of everyone else’s cake while they are at it.
I now turn to borrowing, which was raised by the noble Lords, Lord Kerr, Lord Darling and Lord Turnbull. I should say at the outset that we have a lot of sympathy with what this amendment seeks to achieve.
Lord Forsyth of Drumlean
I have a question before my noble friend moves on. I accept we have had a good go on this but I am still—perhaps I am just not smart enough to understand this—struggling to understand the Government’s position. It once was that, if Scotland is responsible for particular services, it should be responsible for raising the money and have direct accountability. What appears to be happening now is that the Government are trying to find some kind of Barnett-like top-up to the tax base. How is that going to go down with people in England? How will it take account of changes in England? For example, suppose a large number of migrants come into the country and live in the south-east of England and increase tax revenues and the tax base relative to Scotland, will that mean that there has to be money sent north of the border to maintain some kind of parity? I just do not understand how this will work. Can my noble friend explain?
Lord Dunlop
If there is faster population growth in the rest of the UK, that obviously will not just increase tax revenues. It will also increase demand for public services. This negotiation is all about a fair allocation of risk. As I said, at this delicate time of the negotiations I do not want to comment in detail about particular aspects. We will publish this agreement if and when we can get it and I will be very happy at that point to discuss and debate with my noble friend on these matters.
I have great sympathy with what the amendment tabled by the noble Lords, Lord Kerr and Lord Turnbull, seeks to achieve. It is centred on the Scottish Government’s resource and capital borrowing powers and this is an important part of the negotiations. The noble Lord, Lord Kerr, asked whether this is a matter of great controversy. I do not anticipate—if we can reach agreement soon—that this issue will cause great controversy. In detail on resource borrowing, Smith talks about sufficient and additional powers to,
“ensure budgetary stability and provide safeguards to smooth … public spending in the event of economic shocks”.
The current powers of the Scottish Government are that they can borrow up to a total cap of £500 million for this purpose and an annual limit of £200 million for cash management and forecasting error in devolved tax revenues. The rationale for more in this area is the increased risk and volatility from a greater scale of tax devolution, although I again stress that this is a marginal Scotland-specific risk. This needs to be proportionate. Mindful of the need to deliver sustainable UK public finances, as the noble Lord, Lord Turnbull, said, Scottish borrowing is included in UK borrowing.
When we look at these borrowing powers, we need to look at the other tools that are available to help manage the risks—the possibility of building up a rainy-day fund and the block grant adjustment mechanism itself. We also need to cater for Scotland-specific shocks if the Scottish economy is in recession while the UK economy continues to grow. That is a relatively rare event—I think it has happened three times in the last 20 years. We need to do this to protect against relative underperformance leading to worse economic outcomes through higher taxes or lower spending during recession. I pick up on a point that the noble Lord, Lord Darling, made: it is explicitly not a facility for the Scottish Government to borrow to fund current spending in normal times. That would absolutely undermine fiscal responsibility and accountability.
On capital borrowing, Smith talks about sufficient borrowing powers to support capital investment. He asked the two Governments to look at a similar prudential borrowing regime used by local authorities. The current powers involve a total cap of £2.2 billion and an annual limit of 10% of the capital grant, which is currently about £3 billion, so we are talking about £300 million per annum. All borrowing needs to be complemented by fiscal rules to ensure consistency with the overall UK fiscal framework.
The noble Lord, Lord Kerr, specifically asked about legislation. The Scottish Government’s existing borrowing powers are provided for in the Scotland Act 1998 as amended by the Scotland Act 2012. Any changes to the purposes and circumstances for which the Scottish Government have permission to borrow to reflect the transferred risks may require amendments to primary legislation. I assure noble Lords that we will review further what primary and secondary legislative changes may be needed in the light of a fiscal framework agreement, including additional independent scrutiny of the Scottish Government’s public finances, to which the noble and learned Lord, Lord McCluskey, referred. Both Houses of the UK Parliament will have an important scrutiny role.
Lord Dunlop
The difficulty is that you cannot separate out one element of what is an overall package. Both Governments have agreed that nothing is agreed until everything is agreed. Therefore, I do not think it is possible to pluck out just one aspect and to move ahead with it on a different timescale.
Lord Forsyth of Drumlean
Perhaps I might get the politics of this right. The proposal is that we absolutely have to get this Bill on the statute book before the Scottish elections but, come those elections, we will be able to say that there is another Bill coming down the track to deal with these matters, and we may or may not have the detail on that. Is that not going to defeat the object? Was not the position of both Front Benches earlier this afternoon that we had to deliver the vow and say that we had delivered it? If another piece of primary legislation is coming and as yet we do not know what it is going to say, does that not undermine the whole strategy?
Lord Dunlop
No, I do not believe that it does. My noble friend is asking me to comment on hypotheticals. We are engaged in trying to reach an agreement in as timely a fashion as we can to ensure that we have proper scrutiny of the fiscal framework in the context of the passage of this Bill.
I am conscious that time has been moving on and I shall be very happy to return to some of these topics on another occasion. However, I just want to pick up on a couple of points.
Lord Wallace of Tankerness
The noble and learned Lord makes a very important and perceptive point, and I am glad it is not me who has to reply to it from the Dispatch Box. I certainly see his point that it is a very stark, simple Long Title. To actually extend the ambit of the Bill to Measures or Acts of the National Assembly for Wales or legislation of the Northern Ireland Assembly does seem a bit of a stretch. No doubt the Minister can enlighten us when he comes to reply.
The important point is that we do take seriously the report from the Delegated Powers and Regulatory Reform Committee. At the heart of it, these are extremely wide powers and, in some respects, exceptional powers. With the one exception relating to Part 3, no explanation or justification has been provided by the Government for taking these wide powers.
Lord Forsyth of Drumlean
Could the noble and learned Lord, with his considerable experience, give me some legal advice? I wonder whether, if a clause like this had been included in the previous Scotland Bill, it would have been necessary to have this Bill at all.
Lord Wallace of Tankerness
That is a good point. As the noble Lord was making it I was wondering whether the phrase,
“any other instrument or document”,
could apply to the fiscal framework—but perhaps that is stretching things a bit too far. Actually, “any document” could include the fiscal framework, so perhaps the Minister can tell us more.
Lord Forsyth of Drumlean
My Lords, when I first saw Clause 68 I was outraged, and my instinct was to take it out entirely. Then I saw the rather more finessed approach of the noble and learned Lord, Lord Hope, so I quickly added my name to his amendments. I very much support those amendments, and the approach taken by the noble and learned Lord, Lord Wallace of Tankerness.
I was outraged when I saw the clause because—together with the fact that the Government propose to take this Bill, as it has already been taken, through the House of Commons, and then through the House of Lords, without the fiscal framework being in place—it gives the impression of a Government who see Parliament as a rather irritating thing that has to be got through, rather than as the process by which legislation is carefully considered.
It is 20 years since I was in government, but in my day this would never have got past the parliamentary draftsmen. Even if it had, it would have been knocked on the head by L Committee. It is very worrying that a Bill can get to this stage, having gone through the House of Commons, with such completely open provisions. I was not making the point in jest: I genuinely think that with these powers it would have been possible to put the entire contents of the Bill into statutory instruments. That would have been jolly convenient for the Government—would it not?—because they would have been able to say, “We’re simply implementing the Smith commission report. There’s a convention that your Lordships don’t amend or vote against regulations”, and that would have been that. It would have been a very retrograde step indeed—so I hope that my noble friend will simply take the clause out entirely, as he did with a previous clause this evening. If not that, I certainly accept the amendments tabled by the noble and learned Lord, Lord Hope, and possibly make a concession because of the points made to the Delegated Powers Committee.
I will certainly not press removing the clause altogether at a later stage, but the Government need to respond to this and recognise the very considerable feeling in the House, which was illustrated by the debate that we had on the Strathclyde commission proposals. I thought that the Government said that they were going to mend their ways. Certainly, the Strathclyde commission report was balanced in that it suggested that that needed to be done. This would be a great opportunity for the Government to show good will towards the Strathclyde recommendations. Then they might be able to persuade some of us who have doubts about them that it would be sensible to reach a compromise.
Lord Norton of Louth (Con)
My Lords, I want to reinforce points that have already been made. It is important to stress that we should not let the late hour mask the importance of the amendments before us. As the noble and learned Lord, Lord Wallace of Tankerness, stressed, this clause has important constitutional significance. It raises fundamental issues and I concur with everything that was said by the noble and learned Lord, Lord Hope of Craighead, and reinforced by the noble and learned Lord, Lord Wallace of Tankerness. He referred to the report by the Constitution Committee on the Scotland Bill and I reiterate the comments made by that committee, on which I served, in respect of this clause.
In its report, the committee drew attention to the clause, saying:
“As has become a trend over the years, the Government has put forward a Henry VIII clause which gives it powers well beyond those which are necessary to achieve this end”—
that is, the end of the Bill. It goes on to say that,
“we once again must express our concern at a Government proposal that would provide Ministers with too much power at the expense of Parliament”.
Here we have a Bill that is giving the Government greater powers than is the norm in these types of clauses, as has already been stressed, without any justification for so doing.
It is amazing that we have got to this stage without the Government providing a clear justification for what is before us. We must take our role seriously in terms of acting as a constitutional safeguard to make sure that the Government do not use these measures to take powers that have not been justified by them and which would put us in a difficult situation in any future measures. The Government must take this very seriously and I hope that the Minister will give some commitment that between now and Report changes will be introduced by the Government themselves.
Lord Dunlop
I am happy to take the noble Lord’s point away and reflect on it, and I shall either write to him or discuss it.
Lord Forsyth of Drumlean
Can I take my noble friend back to the debate we had earlier when the noble Lord, Lord Turnbull, argued that it was important to have in the Bill specific provisions relating to borrowing powers? I think that my noble friend indicated that more primary legislation would be required; he used the phrase “primary legislation”. Can we take it that these powers would not be used, for example, to put in place a borrowing regime for the Scottish Parliament, taking into account what he has just said now with what he said earlier this evening?
Lord Dunlop
I absolutely stand by what I said earlier. There may be some aspects of borrowing that could be done through secondary legislation, and that will be made clear when we agree and publish the fiscal framework.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(8 years, 3 months ago)
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Lord Lyell (Con)
I declare a case of anger solidarity with the noble and learned Lord, Lord Davidson of Glen Clova. He mentioned parking in Edinburgh to me at the weekend. But I notice, and your Lordships will see, that the amendment refers to “stopping on verges, etc”. That might be part of the Road Traffic Act 1988 but since the noble and learned Lord and I are both much acquainted with that great artery of Angus, the B955, which crosses both his parish and mine, I wonder quite what “stopping on verges” can be.
I quite understand that there could be problems in Edinburgh or urban districts with guide dogs and the rest on the pavements, but I also wonder whether there is a problem in Scotland which there is not in England. Perhaps when my noble friend the Minister winds up, he could explain whether there is a difficulty in Scotland, let alone in Edinburgh. For goodness’ sake, let us not get into speaking in Doric or Gaelic—let alone in the wilds of Angus—but is there a problem and can he sort it out in my mind? Certainly, as far as the noble and learned Lord, Lord Davidson, and I are concerned, there is a strong case of anger solidarity, and I hope my noble friend can resolve it.
Lord Forsyth of Drumlean (Con)
My Lords, perhaps I could add to the anger solidarity by disagreeing with my noble friend and the noble Lord, Lord Foulkes. The Gaelic language is an important part of Scotland’s culture. Indeed, when I was Secretary of State, I did a great deal to promote it. The whole point of devolving power to the Scottish Parliament, if we are going to allow for differences on matters such as road signs, is so that it can do stuff like this.
The noble Lord is constantly telling me about the importance of being sensitive to the fact that the Labour Party has been destroyed in Scotland, that people have voted for the SNP and we have to take account of those cultural differences, and why devolution is important. He cannot will the means and then complain about the results. The reason that Scotland is covered in signs in Gaelic is the same reason that Ireland is covered in signs in Gaelic. It is a wish on the part of nationalist Administrations to reflect the national culture. In that respect, I agree with them entirely. The more it creates interest in and understanding of Gaelic, and the more people realise the extent to which the Highlander should be on our conscience, the better, as far as I am concerned. I support the amendment.
Lord Sanderson of Bowden
My Lords, I think there ought to be a bit of border solidarity here. I agree entirely with the noble Lord, Lord Steel, about the ability to have agreement north and south of the border on various matters relating to roads. For example, if you go through one village, as I do on my way to the train, there is a 30mph limit—that is in England, of course—and in Scotland it is 40mph. In the context of this amendment, which I agree with, we want to be sure that any changes that are made should ensure that it is not going to be too difficult for us to cross the border.
Lord Empey
My Lords, before I commence, perhaps I could just follow up on a serious note the point made in the last discussion. I think that we are all in favour of the promotion of minority languages, but the danger we have seen is that a genuine love of a language has been seized upon and used as a badge of difference. That is the risk attached to all these things.
I tabled this probing amendment because I was slightly puzzled and concerned at the potential direction of travel that could be achieved by the outworkings of this clause. First, as I understand the Bill at present, it does not in and of itself alter the existing arrangements for policing railways and transport as set out, but it provides the potential for a subsequent point at which the Scottish Parliament and Government could take over responsibility for the functions of the British Transport Police, its chief constable and senior officers and of course for its equivalent of a police authority. We all know that we live in dangerous times; I just wonder whether we are trying to fix a problem that does not exist here.
I am not aware of there being a series of complaints about the conduct of the policing of transport in Scotland. As far as I can see from the figures, the police are bearing down well on crime—crime on railways, as I understand it, is diminishing in Scotland—but there are two or three areas that would concern me. First, where policing functions are devolved to the Scottish Parliament, it is natural that there will be an interest in all matters pertaining to police, but I think we would have to acknowledge that transport policing is not a geographically based function. Indeed, it is the very opposite of that, and a specialist series of skill sets are required to perform its functions. One of the most significant of those skills is of course counterterrorism, because transport links are used regularly by terrorists to carry out their activities. Sadly, we have seen in the last few months in Belgium and France, as we saw previously in Spain and other countries, attempts being made to use the transport network to promote terrorism. So people who have an expertise in that area and are used to dealing with it in transport terms have certain skills.
Sadly, another thing that has happened is that transport networks have attracted people who have sought to end their lives. That can also cause huge distress and great disruption. We also know that people traffickers and other elements use transport networks to fulfil their functions and carry out their nefarious activities. I am a little concerned that here we have a service that is being performed and, as far as I can see, performed well. I am not aware of complaints about the operation of the British Transport Police, as they apply to Scotland. We can also tell that when certain crimes are committed, the precise jurisdiction in which they are carried out can be unclear. We are talking about a border which is not immediately obvious to a passenger.
I would also like the Minister to tell the Committee, in the circumstances where the Scottish Parliament decided to take over responsibility, would a British Transport Police officer have the power of a constable in Scotland? Would that person be able to function on the Scottish side of the border, in circumstances where Police Scotland would be the authority in charge and responsible? Is there not the potential for huge confusion here? It is important that the Committee teases this out at this stage so that when we come to Report and so on, we have clarity. Are we trying to fix a problem that does not exist?
There is a unique skill set in policing not only the railway network itself but the stations and associated estate that go with it. It is difficult for a service that has existed for many decades, and built up that expertise, all of a sudden to transfer that expertise to a geographically based police service that quite naturally thinks and deals with things in a totally different way. Given also that we are talking about a GB-wide network which respects no border—in so far as railways, in particular, pass through borders without any distinction between one area and another—surely there is some sense in having consistent and coherent policing of that network.
That is not to say that the Government and Parliament in Scotland would wish to exclude themselves from any interest in these matters—of course they would be interested, and quite rightly so—but what purpose is being served by this if there is no evidence that a problem actually exists? If there is no evidence that crimes are going undetected or that there is a major failure here that needs to be addressed, I would just be concerned, as we had some experience of this in our own jurisdiction. We had to wait for over three years before we could get political agreement to get the National Crime Agency going in Northern Ireland because people had a political issue with it—not a policing issue with the NCA but a political one. In circumstances that included people trafficking, smuggling and potential terrorists coming and using our area as a backdoor into the United Kingdom, it was not the policing issue that was at the top of the agenda.
Why has this particular issue been given such prominence? It is inconceivable that proceeding to change and hand over these functions to Police Scotland would have no potential effect on the United Kingdom. This is not something that has no implications for the rest of us, for the following, simple reason. If criminals originate on the Scottish side of the border, what are the co-operation and communication issues going to be? Are we suggesting that a Scottish police constable would be on the train as it left Scotland, and does that mean that there has to be a British Transport Police officer when it gets to Cumbria in charge of an investigation or tracking a criminal or a criminal gang? These are the sorts of questions that we have to ask, and this Committee is the right place to ask them.
Virtually all parties are committed to the implementation of the Smith commission, and I am not in any way trying to stand in its way, but where there is an issue which could affect all of us, it is fair to say that we are perfectly entitled in this Parliament to ask these questions and to seek explanations. I beg to move.
Lord Forsyth of Drumlean
My Lords, I rise to support the amendment of the noble Lord, Lord Empey, as this is a crucial proposal in the Bill. The origins of it were in the Smith commission’s report, following which the Government said:
“How rail transport is policed in Scotland will be a matter for Scotland once the legislation is passed”.
I noted that last year Scotland’s Justice Minister said:
“It’s been the Scottish government’s view that this would be better if it was integrated into Police Scotland given that it would sit alongside our national police service”.
At one time, we had local police forces which commanded respect and were extremely efficient, and a system that worked very well in Scotland. My old constituency in Stirling, where I live, had the Central Scotland Police, which was the smallest in Scotland; there was also a Highlands police force. Those forces were able to deal with issues while understanding the culture, background and nature of the areas to which they were responsible. That worked extremely well, but the system has been smashed up with the creation of this national Police Scotland force. It was going to save a lot of money, but the result has been a complete disaster. We lost the first chief constable in a series of controversies over arming the police, the inefficiency of the service and various other matters. We have seen infighting and disruption in the governance body responsible for Police Scotland, with the resignation of the chairman. The whole thing has been a disaster from every point of view.
Lord McFall of Alcluith (Lab)
Does the noble Lord not agree that one of the real problems a number of years ago was when they got rid of the local police stations and introduced a centralised call centre? Now you phone a central place in Scotland, which is unaware of the locality and the issues in it, and where there are complications with communications. I saw that when I was a Member along the road there. That was the start of the real problem, which led to this centralisation. The more we get back to local police stations and local reporting, so that we can go into our stations and report issues where they understand the local area, the better. We are on the wrong track.
Lord Forsyth of Drumlean
I entirely agree with the noble Lord. He is absolutely right. In my old constituency of Stirling, we used to have a police station in my own village; we had them in Balfron and elsewhere, but they have all disappeared. We now have two wildlife policemen who are going around trying to find someone to prosecute for something—without much success, I am told, and at vast expense. All of this is absolutely in the face of what local people say they want, which is local policing and local involvement. One of the great ironies of this whole devolution project is that it was supposed to be about returning power to local people, but the Scottish Parliament seems to have been absolutely concerned to centralise everything and to take a very authoritarian view.
This proposal to break up the British Transport Police —I am now on the amendment—is an absolute classic example of the failure of thinking which has brought such disaster to Scotland’s police force. British Transport Police has been there certainly since the 1850s, when it was realised that a railway would enable criminals to move around the country and that it was necessary to have a police force on the trains with the authority to act wherever its officers were. That system has worked brilliantly; it is one of the great success stories.
The truth of the matter is that the reason that the nationalists do not want to have the British Transport Police is because of the “B” in British Transport Police. Perhaps we could just call it something else—perhaps we could call it the “National Transport Police” —and then we could get agreement that it makes sense to have a cross-border force run on a cross-border basis. It has done the most brilliant work, not all of it publicised for obvious reasons, on drugs hauls that have been taken from trains at Glasgow that have come from the south, on the movement of terrorists and others who threaten us, and on the integration of the Glasgow underground with the London Underground and the whole of the transport system. The BTP is a group of people organised in four divisions—there is a Scottish division—who understand and have the expertise to deal with the intricacies of policing a transport system. That is a success, and for it to be smashed up would be crazy.
I know that the Minister will say that the amendment is unnecessary and the clause does not actually provide for the breaking up of the British Transport Police, but we know that that is what the Scottish Government intend to do. In doing so, they will undermine not just the security of people in Scotland, as the noble Lord, Lord Empey, said, but the security and enforcement of law in the United Kingdom as a whole. This is not a matter which should be subject to devolution; this is a matter of national, United Kingdom interest. I very much hope that the Government will drop it from the Bill. The rather throw-away line that we got from the Smith commission, which showed no understanding of what the British Transport Police has been doing, is, to say the least, a disappointment.
The fact that the Justice Minister in Scotland should announce that he wanted to get rid of the British Transport Police and integrate it into the Scottish police with no consultation whatsoever, and in the face of strong opposition from former commanders in Scotland, who actually did the job, but who are ignored, is unacceptable. I very much hope that the Government will feel able to accept the noble Lord’s amendment or, even better, drop the whole thing altogether.
Lord Wallace of Tankerness
My Lords, my noble friend Lord Stephen and I tabled clause stand part debates on Clauses 42 and 43 because it is important that the Government should justify to the Committee why they are taking this step, not least given the remarks of the noble Lords, Lord Empey and Lord Forsyth. After all, I am told that the British Transport Police has reduced crime on Scotland’s rail network by 56% since 2005, compared to an overall reduction of crime in Scotland of 38%, so it is clearly doing something right.
Paragraph 67 of the Smith commission report states:
“The functions of the British Transport Police in Scotland will be a devolved matter”.
That is a slightly different thing from saying that the British Transport Police shall be devolved. We really ought to have an explanation from the Government as to why they have chosen this form of devolution. It is complex. No doubt the Minister will give a fuller explanation, but until legislative competence has been devolved, which is what I understand Clause 42 is intended to do, the Scottish Parliament cannot make provision for what will happen and the British Transport Police will continue as a cross-border public authority under Section 88 of the Scotland Act 1998. The Minister may want to indicate what that means in practice. Does it mean more than that UK Ministers are obliged to consult about appointments and the like and that reports must be laid before both the UK Parliament and the Scottish Parliament?
The Scotland Office briefing note that was given to noble Lords at a very worthwhile briefing way back in November said that this was a first step. We want to know what the next step and subsequent steps will be. Considerable concern has been expressed about this provision.
It is no secret that I am a pretty strong home ruler, but I cannot say that the devolution of the British Transport Police was ever near the top of my agenda of things that needed to be devolved. One wonders where it came from. Perhaps the secret is in what the Scottish Justice Minister said, in what sounds very much like empire-building, whether on his part or that of Police Scotland, to try to subsume the British Transport Police. That is the concern: that the British Transport Police is to be subsumed into Police Scotland. As the noble Lord, Lord Forsyth, indicated, Police Scotland seems to have enough on its plate at present, although I agree with him that the new chief constable must be given the opportunity to try to restore both morale in his force and confidence in the public.
The speech of the noble Lord, Lord Forsyth, was very passionate, raising the constitutional issues of having a single national police force. I just wish that he had spoken to the Conservative Party in the Scottish Parliament—and that the Labour Party in the Scottish Parliament had taken cognizance—because the Liberal Democrats were the only party in the Scottish Parliament that stood against the creation of a national police force.
Lord Forsyth of Drumlean
I did, but, for extraordinary reasons, it decided not to take my advice.
Lord Wallace of Tankerness
Plus ça change, plus c’est la même chose.
I am uncomfortable about the arguments about what might happen when devolution takes place—that is an argument for a different forum—but clearly, devolution is not the same as abolition. As I said, the Smith commission said that it should be the functions of the British Transport Police that are devolved. The British Transport Police Federation made a submission to the Scottish Parliament’s Devolution (Further Powers) Committee in which it set out a number of options.
One option consisted of proposals of a legislative administrative nature, which would devolve policing and embody in statute arrangements by which the Scottish Government could give direction to the BTPA and specify direction of railway policing, but the model would provide that the chief constable of the British Transport Police would engage with Scottish institutions in the same way as the chief constable of Police Scotland does at the moment. Responsibility for pensions, employment contracts and defraying the cost of policing to the rail industry would remain with the British Transport Police Authority, although the Scottish Police Authority would have great involvement at strategic and planning level. Another option was to achieve devolution by administrative rather than legislative means, maintaining the responsibility on the BTPA to pass on the cost of the force to the rail industry, as well as responsibility over employment matters and pensions.
The Government owe the Committee an explanation of why they adopted this particular form of devolution, given that it was the functions of the British Transport Police rather than the police themselves that the Smith commission recommended be devolved.
We should not lose sight of what the British Transport Police is and what it brings to the service. Interestingly enough, it is not responsible to the Home Office; its sponsoring ministry is the Department for Transport. That is important. It means that it has particular training and skills which are different from the rest of the police force. Can we be assured that in any scheme for transfer, particular provision will be made to maintain those skills—for example, dealing with level crossing incidents and trespass? We have heard about drugs and terrorism—although I know that those who work within Police Scotland in liaison with the Metropolitan Police and others are very important. The noble Lord, Lord Empey, mentioned investigations of suicides—the tragedies that happen on our rail network.
The briefing made available to the Scottish Parliament committee stated that under Operation Avert, which is being promoted by the British Transport Police at the moment, there has been a 30% reduction in suicide attempts over the past year. That is very valuable, and we need reassurance from the Minister that it will not be lost.
What engagement has there been with staff? I understand that there are about 50 civilian posts and 230 police officers with the British Transport Police in Scotland. They are not tied to the police pension scheme; there is a separate, private pension for British Transport Police officers. Will the provisions safeguard the employment and pension rights of serving officers? What are the financial implications?
The Scotland Office briefing states that the British Transport Police costs are met through charges for the policing services it provides. Will the secondary legislation allow for train companies to be charged? If so and there is an incorporation into Police Scotland, how can we ensure that charges made to railway companies will go to provide the services to the rail network and not just into a pot used to fund other policing services? It is important that we are given some reassurance that they will go to services relating to railways and railway properties.
The notion of cross-border institutions, which appears in the Scotland Act, is sometimes not fully understood. You can have a service and a function that literally is cross-border—that is, it operates in Scotland as well as England but is a reserved matter, not run by a cross-border authority. Here we have, as a result of Clause 43, something that is both; it will be cross-border institutionally and very literally cross-border in what it does. That point was well made by the noble Lord, Lord Empey.
Lord Berkeley
I wonder whether it would be useful to reflect on some of the things that the British Transport Police currently does. Like it or not—and most people like it—we have some very highly congested railways in this country. Sometimes the trains go very fast, and some of them are freight. Here I declare an interest as chairman of the Rail Freight Group. Some of the passenger ones go even faster. One thing that the BTP does is make sure that people do not trespass on the railway, be it in towns, countryside or whatever. There have been one or two occasions when the local police force—I cannot say where—has trespassed on the railways and put their own lives and other people’s lives at risk by not knowing how the trains work. The BTP knows how the trains work.
There is the issue of suicides, as noble Lords have mentioned, and the issue of graffiti. None of us likes graffiti on trains. Where does the graffiti get put on? It gets put on in depots. Now depots are where the trains get parked when they are not used, and they are lovely places to go into because you can hide from people and probably not be seen. Most have fences around them, but some have electrified lines. People who do not know could hurt or kill themselves. The BTP is involved in all that. Then there is the question of passenger crowd control; we have all seen what happens when there is underground congestion, and they stop people going down there. London Underground does it all, but if there is beginning to be a problem and the police feel that they need to be there, they are there—and they know how to deal with crowds. Noble Lords have probably read about some of the issues facing London Underground at the moment, because of the growth in traffic. Wrong action by a policeman or policewoman who does not know the layout of Underground or mainline stations can put lives at risk, again—and that is the kind of knowledge that the British Transport Police has built up over the years. Level crossings and the deaths that happen there—that is another piece of knowledge that the BTP has.
It would be a great shame to lose this specialist knowledge. Railways are different from roads. Everybody knows what happens on roads, and how you try to avoid problems, and the police are very good at it. On railways it is different, and there is a different type of control because if a driver sees something he cannot stop, unless he is very lucky; he has signals but, if somebody is on the line, he cannot stop. That is going to get very nasty, because trains are not designed to stop on a penny.
Having a national force is highly desirable. I agree with all noble Lords who have spoken who have said that they cannot see any reason for changing it. But let us also look at frontiers. There have been problems in the past, which I am sure my noble friend Lord Faulkner will talk about. Can the BTP be in hot pursuit outside railway property? The noble Lord, Lord Empey, mentioned that. It has got better these days, but there is still a problem; there certainly will be a problem if there is a kind of frontier for police between Scotland and England. I travel a lot on the continent, usually on railway activities, and we have all seen the problems between France and Belgium and the apparent lack of communication between the police forces of those countries. The solution that they have come up with is to have police or security checks at all the stations approaching the frontiers. Heaven help us if we have that between Scotland and England; whatever happens in future, we need our trade and our passengers to get through. But the fact remains that, as other noble Lords have said, if there is a need to go across between England and Scotland it needs to be done in the easiest possible way and nobody should stop the expertise of the British Transport Police from being able to do it.
I personally see no reason why this is thought a good idea. The suggestion of the noble Lord, Lord Forsyth—that we should get rid of the word “British” and turn it into a national force—would probably be a good compromise. But I worry seriously whether the BTP’s expertise on railway matters, stretching from John O’Groats right down to Cornwall, would be affected in any way, with the result that the non-specialist police person, doing their best, gets into trouble on the railways in pursuit of whatever they are trying to do.
Lord Forsyth of Drumlean
I was not suggesting that the name would be changed—I was saying that it might suit the nationalist agenda.
Lord Hope of Craighead
When the Minister replies on Clause 43, could he give us some other examples of cross-border authorities? As I understand Clause 43, it does not abolish the British Transport Police or alter its functions in relation to Scotland; they will be devolved, if Clause 42 is passed. But it would help the Committee if we had some examples of other cross-border authorities, so we can grasp what kind of things we are dealing with. From points that other noble Lords have made, it may be that we are not really comparing like with like in talking about the kind of cross-border authority referred to in the Scotland Act—or the Orders in Council passed under it, presumably under Section 88(5). They are relatively simple creatures, which do not have implications of the nature described by other noble Lords. But some examples of other cross-border authorities would help us to grasp the implications of this very significant clause. I hope I am not asking the Minister to do something for which he is not prepared, but if he could write to us and give us examples at a later stage, that would be very helpful.
Lord Forsyth of Drumlean
Is there not another complication: the fact that the financing comes from the operators? Who pays what would be an interesting discussion. The noble and learned Lord, Lord Wallace, made a point about how one would ring-fence the funds. That would be a good discussion.
The Earl of Kinnoull
It would be interesting and very lengthy. I thank the noble Lord for yet another item in the list. I am sure that if one sat down one could prepare a demerger list of horrible problems that would tax people for a very long time.
Earlier, we spoke about the Crown Estate and the fact that it appears that where the Smith agreement has got it wrong there is some wriggle room for making some small changes in the Bill. We came across a couple of them in the transposition from the Smith agreement to the provisions of the Bill that deal with the Crown Estate. I suggest to the Minister that this is another area where there could be some wriggle room. Alternatively, we could go for some sort of fudge with a dual reporting line so there would be a unitary, single British Transport Police with agreed rights of reporting, scrutiny et cetera that went to Scottish Ministers in respect of Scottish staff as well as to UK Ministers at the same time.
Lord McAvoy (Lab)
My Lords, I apologise to the Committee for not being able to be here for start of the proceedings. I was away officially on Whips’ business. I thank my noble and learned friend Lord Davidson of Glen Clova for holding the fort so well.
The Bill makes the functions of the British Transport Police a devolved matter. I associate myself with all the praise expressed for the British Transport Police and its record since 1825. I have no hesitation in doing so.
I have only one comment to make about the contribution by the noble Lord, Lord Empey. I fully understand where he is coming from; he is ad-libbing about the language situation in Northern Ireland. The situation is a wee bit more hopeful than he has perhaps indicated: there are classes in Irish in solid unionist east Belfast, so there are glimmers of hope.
In the opening contribution from the noble and learned Lord, Lord Wallace of Tankerness, he regretted and bemoaned that the Labour Party did not do what he wanted it to do in the Scottish Parliament. I can understand that disappointment and possible resentment, because the Labour Party here had to stand back and watch for five years as the Liberal Democrats backed every vicious and vindictive proposal on welfare put forward by a Conservative Government, with never a word against.
Clause 43 devolves executive competence in relation to the policing of railways in Scotland by specifying as a cross-border authority the British Transport Police Authority, the chief constable of the British Transport Police, the deputy chief constable of the British Transport Police and the assistant chief constable of the British Transport Police. This is in keeping with the Smith agreement, which states:
“The functions of the British Transport Police in Scotland will be a devolved matter”.
That was agreed. I understand also the suspicion and resentment that some Scottish National Party people seem unfortunately to be expressing the desire to get rid of the word “British”. I regret that. If that is their motivation, it does not say much for them, and we should concentrate on the core of the matter.
Designating the British transport bodies as cross-border public authorities means that appointments to the British Transport Police Authority or to the offices of chief constable, deputy chief constable or assistant chief constable will in future be able to be made only in consultation with Scottish Ministers. I know I should not have to say this but it should be on the record: devolution is devolution. You cannot agree the principle of devolution and then object to its effects. Devolution is devolution.
Lord Forsyth of Drumlean
Yes, devolution is devolution, but, as was made clear earlier in the debate, this is a matter that affects the security of the whole of the United Kingdom. The noble Lord knows very well that the SNP Justice Minister has indicated that he wants to break up the British Transport Police. Is the Opposition Front Bench really supporting this in the face of all the evidence that has come from the trade unions and the former leaders of the British Transport Police? Surely that is an extraordinary position for it to take.
Lord McAvoy
The noble Lord, Lord Forsyth of Drumlean, always takes a keen interest in the position of the Labour Front Bench. The fact is that the Labour Party supports the Smith commission, as do the Liberal Democrats and the Conservative Government. There is consensus. I know the noble Lord does not really like being described as a consensual figure—he would probably regard it as an insult—but devolution is devolution and it can, will and should be worked out in that atmosphere. I know the noble Lord is a bit puzzled by that, but I have accepted devolution and he should do the same and move on.
In March last year, as the noble Lord has indicated, the Scottish Justice Secretary signalled the Scottish Government’s intention that the BTP’s functions would be transferred to Police Scotland following the passing of this Bill. Once the power is devolved to the Scottish Government, that is of course a decision for them to make and to justify to the Scottish public, the Scottish electorate and the communities within Scotland. Having said that, in recent months there have been a number of legitimate question marks over the way in which the Scottish Government have chosen to manage the resources of the police force in Scotland since we have had this Police Scotland set-up, with police stations being shut—as my noble friend Lord McFall of Alcluith has mentioned—call centres being closed and much-needed front-line police doing back-office functions. I make it clear that this is no reflection of the phenomenal work that our police officers do on a daily basis. However, we should view this as a further opportunity, and I have no objection to it, at the very least to assess all the possible implications of a merger between Police Scotland and the British Transport Police.
Lord McAvoy
I thought I had all the trouble in front of me, but I have some behind me here as well.
Lord Dunlop
That is a very good question to which I do not know the answer, but I will be very happy to clarify that point for the noble and learned Lord. Noble Lords have raised a range of important issues, and I will try to cover as many of these as I can in my response.
Lord Forsyth of Drumlean
Could my noble friend tell the House what he thinks is meant by the words in paragraph 67 of the Smith commission report:
“The functions of the British Transport Police in Scotland will be a devolved matter”?
I read them to mean that the British Transport Police will continue and that its functions will be subject to some kind of oversight by the Scottish Parliament, which is not what the Bill provides for. Does he have a different interpretation?
Lord Dunlop
If my noble friend will let me continue, I hope to set out what our approach is here and address some of the points that were raised by the noble and learned Lord, Lord Wallace.
Lord Forsyth of Drumlean
Of course I want my noble friend to address the points that have been made, but could he just answer that point? The noble Lord speaking for the Opposition said that whatever the Smith commission report says is written in stone, but what is in the Smith commission is not consistent with that. Can my noble friend explain what he thinks the commission meant?
Lord Dunlop
What the Smith commission meant is precisely what it said. If my noble friend will allow me to continue, I will expand upon that. To return to the point that was raised about the Edinburgh trams, I understand that they are not obviously policed by the BTP.
The Smith commission agreed that the functions of the BTP in Scotland should be a devolved matter and, as the noble Lord, Lord McAvoy, has already said, that was supported by all five of the political parties which took part in the commission, including the parties opposite. Clause 42 devolves legislative competence in relation to railway policing in Scotland to the Scottish Parliament by adding an exception to the Scotland Act 1998 for the policing of the railways and railway property. Clause 43 specifies the BTP bodies as cross-border public authorities. The designation of the BTP bodies as cross-border public authorities will result in functions relating to those bodies being modified so that future appointments to the BTP bodies will be made in consultation with Scottish Ministers. Other functions with regard to the BTP bodies will similarly be exercised in consultation with the Scottish Ministers unless their effect on Scotland would be wholly in relation to reserved matters.
The designation of the BTP bodies as cross-border public authorities is to ensure continuity before the Scottish Parliament legislates for policing of railways in Scotland. Enacting the clause will not impact on the current operational arrangements for policing of the railway. The BTP will continue to police the railways in Scotland until such time as a transfer of functions is effected. If and when the Scottish Parliament exercises the new legislative competence conferred by Clause 43, it would be necessary that the BTP bodies be designated cross-border public authorities so as to facilitate the appropriate transfer of BTP property, staff, liabilities and contracts in Scotland.
The noble and learned Lord, Lord Hope, asked for other examples of cross-border authorities; one that comes to mind is the Forestry Commission, although I will write to him with other examples.
Upon the completion of the transfer of policing of railway functions to the new Scottish model devised by the Scottish Government, the designation of the BTP bodies as cross-border public authorities will be removed and the BTP will exercise functions of policing for railways only for England and Wales.
Lord Dunlop
I am saying that these clauses provide the framework that allows us to go forward, but the Scottish Government have to decide what operating model they want for the policing of the railways in Scotland. I said that I anticipated that it would take two to three years before these functions were devolved, and that is because all sorts of contracts with third parties are involved here—the noble Earl, Lord Kinnoull, talked about pensions. I do not underestimate the complexity involved and I hope the Committee will understand if I do not have specific answers to all the questions; we will be working with the Scottish Government to clarify them over the next two to three years.
Lord Forsyth of Drumlean
I do not understand why the Government are bringing proposals to this House which have not been thought through. It is no good saying, “Oh well, the Scottish Government will need to work this out over the next two years”. Does my noble friend not recognise that this matter affects the rest of the United Kingdom? This is about maintaining a perfectly adequate system of policing upon which the larger proportion of the population depends. My noble friend is a Minister in the United Kingdom Government. If he brings forward legislative changes, surely he has a responsibility to explain to us how they are going to affect the United Kingdom. It is a case of the tail wagging the dog if we say, “This is a matter for the Scottish Parliament to decide. You just pass the legislation and we’ll try to work something out”. Surely my noble friend can see that he is not responding to the points that have been made, which concern the security of the United Kingdom and England in particular.
At the beginning of his speech I asked him a specific question, which has been asked again by the noble and learned Lord. It was whether he thinks that these clauses provide for what is contained in the Smith commission report, which says simply:
“The functions of the British Transport Police in Scotland will be a devolved matter”.
It does not say that there will be legislative control over the British Transport Police or that the British Transport Police will be broken up and there will be a separate Scottish force—it does not say that at all. The noble Lord, Lord Empey, indicated earlier that it would be perfectly possible to give the devolved Parliament some involvement in the British Transport Police without breaking the BTP up.
The clauses we are being asked to support tonight are completely vague as to the outcome. Does my noble friend recognise that he has not responded to the debate and has not dealt with the fundamental question that is being put: what will happen to England and Wales and the rest of the country, and why is it necessary to break up a perfectly efficient organisation in order to meet the requirements of paragraph 67 of the Smith commission report? As the noble Lord, Lord Empey, said, the Smith commission report is not a treaty; it is advice to Parliament and we are discussing a Bill.
Lord Dunlop
In answer to my noble friend, the function of the BTP is the policing of railways, which is the subject matter of these clauses and what we are devolving in this Bill. That is what the Smith report stated and we are committed to delivering that agreement.
Lord Forsyth of Drumlean
My Lords, I had no intention of speaking on this matter or detaining the House, but I have to say to my noble friend that, in the light of the reply that we got, I feel that I should make a number of points, without repeating the arguments over and over again. It should be absolutely clear to my noble friend that there is feeling in all parts of the House that what is being proposed is neither consistent with the Smith commission proposals nor desirable in terms of the needs of the rest of the United Kingdom to have adequate security and proper policing of our transport systems, particularly for cross-border purposes.
During the debate on the amendment from the noble Lord, Lord Empey, my noble friend was asked to give examples of cross-border authorities. He suggested in his reply that the Forestry Commission was an example of a cross-border authority. I can think of others concerned with the regulation of nuclear activities in the United Kingdom, for example. I am very concerned that a precedent is being set here that devolution means that, in Scotland, it is possible for decisions to be taken and devolved that have implications for the rest of the united Kingdom and which we just have to go along with because the Smith commission recommended it or the Government’s interpretation of the Smith commission’s proposals are that this legislative provision should be made.
I have no objection whatsoever to a provision that enables the Scottish Government and the Scottish Parliament to have some involvement in the functions and governance of the British Transport Police, as the noble Lord, Lord Empey, suggested. Indeed, I think that that would be highly desirable, if only to end the thought that this is something that should be conducted on a national, individual basis between the constituent parts of the United Kingdom. The joy and glory of the British Transport Police—which after all has done pretty well for nearly 200 years, as I discovered during the course of the debate—is that it operates as a cross-border United Kingdom body.
I gently suggest to my noble friend that he gives some thought to this in the context of his responsibilities as a Minister of the United Kingdom and comes forward on Report with proposals that meet the need to involve the Scottish Government without actually resulting in the destruction of the British Transport Police or its powers and ability to operate in a cross-border way. If he does not do so, I for one will join those who wish to go through the Division Lobbies to substitute something else. That would be very unfortunate. At the moment, our only option is to take these clauses out of the Bill altogether. That would create a difficulty for the Minister and for the noble Lord, Lord McAvoy, who has become the chief protagonist of the idea that everything in the Smith commission report has the status, as the noble Lord, Lord Empey, said, of a treaty that cannot be changed because it was agreed between the Governments.
Lord McAvoy
I made no such suggestion. If the noble Lord would stop looking astonished at every second word that I say, he may understand what I am saying. The Smith commission was a hard process where five parties took part. He is decrying and insulting the good faith of the people who arrived at that conclusion. They spent a long time on it and went into a lot of detail. I believe that they did that in good faith and he should stop denigrating the people involved. The proposal was put through that process and arrived at after long consideration, and I support it.
Lord Forsyth of Drumlean
I am not denigrating anybody, but I gently remind the noble Lord that quite a few of those who took part in the process are no longer involved in parliamentary affairs. He says that it was agreed by all the parties, but none of the parties was consulted about this. This was a deal and a negotiation. I wager him a bottle of champagne that very few of the people involved in negotiations even knew that the British Transport Police was largely funded by the transport operators. I suggest that that is the case. The complexities involved would be unknown to them.
The noble Lord knows as well as I do that a problem was created after the referendum. People were desperate to find things to devolve. I can just see people saying, “Oh yes, the British Transport Police can be devolved”. The people concerned would not have had a clue about the intricacies of how the British Transport Police was funded. Perhaps the noble Lord is smarter than I am and perhaps he is aware of that, but as Secretary of State I was not aware of the detail of this until I discovered the need to look into it as a result of this amendment. I do not believe for a moment that those people acting in good faith knew the consequences of what was proposed.
Actually, the Smith commission does not require the Government to break up the British Transport Police or to act in the way that is provided in this clause. I ask my noble friend to think again please and perhaps talk to the Scottish Government. There is a compromise to be had that will meet the needs of both sides of the border and the needs of the country as a whole in respect of security—at a time when national security is absolutely at the top of the agenda and the security of our transport systems must be the number one issue of concern.
Lord Faulkner of Worcester
Does the noble Lord agree that consultation of the sort that he just described, which I would warmly welcome seeing established, should also include members of the British Transport Police themselves, the British Transport Police Authority and the British Transport Police Federation, Network Rail, which funds the larger part of its operation, and the train operating companies? There needs to be a proper discussion about the role of the British Transport Police in a devolved Scotland. That has not taken place at all so far.
Lord Forsyth of Drumlean
Indeed, that is why I am so distressed by my noble friend’s response and the fact that it has not. We appear to be operating on the basis that whatever is in the Smith commission report, as interpreted by the Scottish Government, is what we do, and nobody has thought through the consequences. I hope before we come to a later stage of the Bill that the noble Lord’s suggestion is taken on board and my noble friend comes back with something that we can support. It would be very unfortunate indeed if this House were put in a position where it had to vote against the clause.
The noble Lord, Lord McAvoy, entreats us all to be as positive and committed to this process as possible. He has a part to play by opening his eyes and thinking about the consequences of this for the rest of the United Kingdom. I very much hope that this clause will not stand part of the Bill.
Scotland: Fiscal Framework
Lord Forsyth of Drumlean Excerpts(8 years, 5 months ago)
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Lord Dunlop
The Government want an agreement as soon as we can achieve it. I cannot offer any guarantees as to the end date, because there are two parties to these negotiations. However, I was very encouraged by what the First Minister said on Monday after the meeting with the Prime Minister. She and the Scottish Government want to reach an agreement, and she is optimistic that a deal can be done and is very keen that we should get on with it. That is absolutely what the UK Government want as well. Clearly, the fiscal framework will be a very detailed public document when it is agreed, and obviously, it will be made available to this House. We welcome full scrutiny of that agreement.
Lord Forsyth of Drumlean (Con)
My Lords, has it occurred to the Government that a sturgeon might be playing them like a salmon?
Lord Dunlop
I know that my noble friend is suspicious of the Scottish Government’s motives. We are entering and taking part in these negotiations in good faith. The discussions we have had so far have been constructive, and we are confident that a deal can be reached.
Scotland Bill
Lord Forsyth of Drumlean Excerpts(8 years, 5 months ago)
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Lord Foulkes of Cumnock (Lab)
My Lords, if I may plagiarise Monty Python:
“And now for something completely different”.
I am going to be positive and come up with some new ideas, and try not to be repetitive. Many people here will recall that at the opening of the Scottish Parliament in 1999 the late, great Donald Dewar read the first words from the then Scotland Act:
“There shall be a Scottish Parliament”.
He went on to say, “I like that”—and we all felt much the same. But even then, with only one chamber in the Scottish Parliament, questions arose about whether there would be sufficient checks and balances.
The people who raised these questions were reassured by many other people, including from my own party and my own side, and told not to worry about it. First, we were told that that the electoral system they had devised would ensure that no party would have an overall majority—well, we know what happened to that. Secondly, we were told that the committees would have a new role and that they would be the checks to control the overweening and overpowerful Executive. But that has not been the case, as many people here will know. In fact, the irony is that in this Parliament at Westminster, the committees in both Houses have been far more powerful in controlling the Executive, challenging and questioning them, whichever Government are in power, than they have been at Holyrood. It was also agreed at the time that the electoral system would be reviewed after two elections if it did not appear to be working in the right way—but that review has not happened.
After the last election, we have effectively in Scotland a one-party state. That controversial comment has been made by a number of people and challenged by the SNP, because of course there are other parties in the Scottish Parliament, but it has an overall majority which it uses powerfully, coherently and effectively. It has decided to choose one of its number as the Presiding Officer but could have chosen someone from another party. There has never been a Labour Presiding Officer, for example, in the Scottish Parliament. When we were the largest party at first in 1999, we allowed—in fact, we encouraged and moved—the noble Lord, Lord Steel, to become Presiding Officer in the Scottish Parliament, much to the chagrin of my good and noble friend Lord Maxton.
The majority on committees is exercised powerfully. I do not know of one committee report that has been critical of the Scottish Government. The Justice Committee got nearest but was still far away.
Civil society—I had better not mention the Law Society of Scotland on this occasion—is increasingly in thrall to the one party in control at Holyrood, using, alternately, the carrot and the stick. As a result of that, there have been a number of mistakes, and the Scottish Parliament has legislated in ways that have caused tremendous problems, which I would argue would not have happened if there had been either pre-legislative scrutiny or a second look by a second chamber. Police reform is one example, and there are several examples in education, for example in the current universities Bill, which is creating huge problems already.
I will mention two specific examples, since, as we saw in the last few debates, we have so many lawyers in the House. One was the misguided attempt to abandon corroboration in Scots law—my noble and learned friend Lord McCluskey played a large part in raising concerns about this issue—which would not have happened if there had been either pre-legislative scrutiny or checks by a second chamber.
The other is the Act that is supposed to deal with sectarianism in Scottish football. As a number of Members will know, I am a great enthusiast for a particular football team, Heart of Midlothian Football Club. Unfortunately, there has been sectarianism in Scotland over time. The Government brought in the Offensive Behaviour at Football and Threatening Communications (Scotland) Act, which has been criticised not just by Celtic and Rangers but by a number of people. I read in today’s Daily Record that even Phil Boswell, an SNP MP—who is under a bit of criticism for other things at the moment—said his own party’s law on this was a “major blunder”. I would argue that that major blunder would not have happened if we had had the second chamber that I am proposing.
The second Chamber here has asked the other Chamber—the House of Commons—the government majority in it and, thereby, the Government to think again on a number of things. We asked them to think again on onshore wind after they arbitrarily cut the grants a year early. We are currently looking at votes at 16 and 17 and asking them to think again—today they were doing that and thinking again about it. Most notably, we asked them to think again about tax credit cuts, and thankfully the Chancellor did think again and decided to abandon the proposals. He would not have done that if we had not challenged the measure in the House of Lords.
This brings me to my proposals. Some people, including some of my own friends, have suggested that this is yet another ad hoc change to our constitution. I agree with that and am only doing it because that is the way we do things at the moment. I repeat what I have said on so many occasions in this House: I am in favour of a UK constitutional convention to look at things in a comprehensive way. But we are not at that position yet, as the Government have not accepted it. Everyone else—every other party and much of civil society—has accepted it but the Government have not yet been persuaded to accept it, so we have to look at this bit by bit.
I am suggesting a senate of modest size, with 46 members. I have given the number of members that would be elected in each of the eight regions of Scotland, based on the current electorate, which brings us to a total of 46. I am grateful to the Legislation Office for help in drafting this amendment. One of its suggestions was that the Boundary Commission for Scotland should be included and be given the power to look at the regions and the number of members returned from each region. I think that is right.
I suggest that it should be elected by a different system from the present Scottish Parliament, and I suggest single transferable vote. That is not to get the support of the Liberal Democrats—I have the support of the noble Baroness, Lady Suttie, who sends her apologies for not being able to be here today—but because it is the right thing to do, not in every case but in this particular one.
Also, I suggest the election should take place at the same time as that for the Scottish Parliament. One of the other criticisms I have had about my proposal is the cost of it. The cost would be reduced if the elections were carried out at the same time. There have been suggestions from my noble friend Lord Maxton and others that it might be better to have it in between elections to the Scottish Parliament, and that is something I would be willing to look at.
The senate I propose would be able to carry out pre-legislative scrutiny and review legislation. It would have debates as we do on topics of particular interest and committees with the power to call Ministers to give evidence. As I say, the one criticism I have had is that of cost. That is why the size is relatively modest. I do not necessarily think that its members need to be full-time, although that is something again that can be looked at.
We can find an existing building in which they could meet. I suggest that a wonderful place for them to meet would be the Old Royal High School, which was converted for our use as a Scottish Parliament had we voted for that in 1979. Many Members here who were Members of the other place will have been at meetings of the Scottish Grand Committee there and it worked extremely well. It looks like a parliament and senate. One noble friend who apologises for having to leave early—he expected this debate to take place a bit earlier but reckoned without some of the fights that took place opposite—suggested that there is a suitable building in Glasgow that might be used for this purpose. Certainly, that could be looked at.
In coming forward with this proposal, I looked at other countries—
Lord Forsyth of Drumlean (Con)
The noble Lord twice mentioned cost but has not told us how much this would cost.
Lord Foulkes of Cumnock
The noble Lord knows the price of everything but the value of nothing. The value of this is that it would be an extension of democracy. It would be a very small price to pay for that.
I have looked at other countries. In Ireland, all the main political parties two years ago proposed to get rid of their Senate. The Members of the Dáil wanted complete control and they held a referendum.
Lord Foulkes of Cumnock
This is the moving of an amendment in Committee. We have Report and later stages coming up, and by that time, if the noble Lord is still here and able to ask a question, I am sure he will get an answer. The cost depends on a whole variety of things and at this stage he can shake his head and put his finger up—we all know what a cynic he is. The new Minister has found out what a damned nuisance he is, as well. He is a thorn in the flesh of the Government but I will certainly not let him be a thorn in my flesh. He will get his answer in good time. As I said earlier, he wants to know the price of everything but knows the value of very little.
I looked at other countries. I looked at Ireland and in the referendum there two years ago all the main parties wanted rid of the Senate. Incidentally, all the opinion polls in the run-up to the referendum said that it would be abolished. The opinion polls in Ireland are no more accurate than they are in the United Kingdom or in Scotland. The people of Ireland decided to keep their senate; they wanted to have control over the powerful Executive of the Government in Ireland, which I was very pleased to see.
I was talking to the noble Lord, Lord Alderdice, yesterday, and he told me that in Northern Ireland from 1921 to 1975 a senate operated very effectively at Stormont, which is something that can be looked at as well. The other interesting thing, on which I conclude, because I am trying not to take up too much time after a lot of time was taken up earlier, are the other areas of devolved legislatures. Every state of the United States has two Chambers; in Australia, all of them except for Queensland have two Chambers. If it is good enough for New South Wales and Massachusetts to have that kind of democracy, and be able to pay for it, it is good enough for Scotland. This will be a great extension of democracy in Scotland; it will make sure that the kind of decisions that I mentioned, which have caused real problems because they have not been thought through, are unlikely to happen again, and I hope that it will be given sympathetic consideration by Members on all sides of this House today.
Lord Maxton
That is a very good point. I look forward to my noble friend Lady Adams tabling an amendment to my noble friend’s amendment on Report. It is an interesting question: why should you have the same numbers in the Scottish Parliament if you have a senate as well?
I support what my noble friend is proposing but we have to look very carefully at it. I hope to be able to move amendments on Report.
Lord Forsyth of Drumlean (Con)
I have to say I am astonished that the noble Lord, Lord Foulkes, should move this amendment at this stage of the Bill. He has spent the past two years arguing against piecemeal constitutional reform and has sat uncharacteristically silent throughout these proceedings, no doubt because he believes in what the Bill is trying to do, which is to allow the Scottish Parliament to determine its own rules and provisions, including on composition and the rest. But here he is, wanting to impose an entirely new body upon it as a second Chamber, ignoring the difficulties that this House has had with the other place in resolving the issue of what you do, if you have two elected Houses, to avoid gridlock and squabbles over powers. Quite frankly, if one were going to create a second Chamber for the Scottish Parliament, which I would have thought was entirely a matter for the Scottish Parliament, it would need to be done in a way that addressed these problems. On the basis of the performance of this House, I should think that that would take at least 100 years and still not be resolved. I find it extraordinary that, with so much to do in the Bill, we should be discussing an issue of this kind.
Also, if the answer to a problem is more politicians, you have certainly asked the wrong question, particularly in the current climate. In Scotland we are overrun with politicians: we have 129 in the Scottish Parliament and 59 MPs, and our constituents have no idea who is responsible for what or who their representatives are. Add to that some people called senators, and I think that the noble Lord will complete the task, already pretty well achieved, of having the electorate treat Members of Parliament with a certain degree of contempt and as a laughing stock.
Lord Maxton
I have to ask the Lord whether he actually believed in being a politician, democratically elected by his constituents. At the end of the day, that is what a politician is: a democratically elected representative of the people. I would not say that more is always better, but it does not necessarily follow that more is necessarily bad.
Lord Forsyth of Drumlean
To deal with the point about politicians, after I left the House of Commons in 1997—or was asked to leave by the electorate—I went to work for Flemings as a banker, and was very proud to call myself a banker. Then, when the financial crisis came along, things got so bad that I started calling myself a politician again. Then we had the expenses scandal so I decided to call myself a company director. Perhaps the noble Lord does not realise that there is a problem, not just in Scotland or in Britain but in France, America and elsewhere—you can see that in some of the eccentric choices that are being made now by the electorate—which comes from a complete contempt for the political class. At this time of all times, when money is short—and by the way, we have not seen the fiscal framework, but when the Bill goes through, money will be very short indeed in the Scottish Parliament, when it substitutes a Barnett grant for a tax base—the notion that they could find money to have an extra 40-plus politicians plus all the attendant special advisers, the machinery and the rest, is utterly ridiculous. Therefore I hope that we will not spend very much time discussing this amendment, which is a complete distraction and totally wrong.
However, the noble Lord is perfectly correct to say that there is a problem with the governance of the Scottish Parliament. Can I just gently point out who was responsible for this? When the noble Lord cited all these examples of failures of policy—I could add considerably more—where was the Labour Party? Where was the opposition in the Scottish Parliament standing up to all of this? Therefore the fault did not lie in the lack of a second Chamber but in the opposition to the SNP and in the case of my own party, which gave it the ability to be in government by supporting it in government, some criticism could be made. However, this is not an argument for a second Chamber but for having vigorous Members of the Scottish Parliament, who I hope will be elected in May, doing the job they are required to do.
As regards numbers in the proposals there is already great confusion—we will come on to this later in the Bill—about the boundaries of constituencies and responsibilities. I was very struck by a poll by ITN, when it discovered that some huge number of the Scottish electorate—90%, I think—had absolutely no idea what powers were going to be conveyed by the Scotland Bill on the Scottish Parliament. When asked, a similarly higher percentage—well over 50%—were of the opinion that whatever the powers were, they did not go far enough. Therefore there is a job to do for the Scottish Parliament in engaging with the electorate and a job for the opposition. It is true that they are failing in a wide range of policy matters, but a House of lairds—a bunch of people calling themselves senators—will not resolve this problem. Fortunately, however, it is not a problem for this House but for the Scottish Parliament.
Lord McCluskey (CB)
My Lords, I may be brief. I made points in my Second Reading speech which the noble Lord, Lord Lyell, has referred to. We are all agreed about one thing: there is a problem. Whether the unelected House of Lords is the right place to start giving a lead in that matter is something entirely different. I would not fashion the problem in precisely the words that the noble Lord, Lord Foulkes, has mentioned—the one-party state. I think I have previously used the expression that was made well known by Lord Hailsham, “an elective dictatorship”, because in substance that is what you have in the Scottish Parliament at the moment. The Scottish National Party, for its own reasons, whips its MPs so effectively that there is no dissent, and for reasons that I mentioned at Second Reading, the weakness of the opposition is palpable. There are good people and, by the way, one or two good committees as well, but the committees of which I have experience, which are largely to do with justice, are not satisfactory.
I therefore agree with the noble Lord, Lord Maxton, that there is a problem with having an elected House. The great thing about the House of Lords is that it is not elected, therefore we are not answerable to constituents, and because very few of us are left with ambition, having reached an age and a state in our careers when ambition is no longer available to us, we can say what we think. However, that is not a popular idea in the country generally.
I am not sure that I am totally committed to the idea of an elected second Chamber but there must be some system. One forgets that many of the institutions that are extremely powerful in shaping the political debate and the political results in this country are not elected at all. I mention, for example, the press, which is said to be free and independent. It may be free, and it is independent of government, but in no sense is it elected by anyone. I get no say in who appoints the editors of the Times or the Sun or, for that matter, the Daily Mail, and they have considerably more influence than this House over what happens in this country, but they are not elected either.
This may be just a start but I feel that there is a duty on those of us who share the idea that there is a real problem to publicise that problem in Scotland and to try to persuade the Scottish electorate and the people generally that it has to be tackled, although perhaps not in this way. However, I certainly support the idea that “something must be done”—an expression which I hesitate to use because of its antecedents.
“Interval between elections
The Scottish Parliament may not make provision to extend the interval between ordinary general elections as specified in section 2 of the Scotland Act 1998 (ordinary general elections).”
Lord Forsyth of Drumlean
My Lords, I am conscious of the late hour but I would like to move Amendment 26. As we have already discussed during the course of the evening, there is no second Chamber in the Scottish Parliament. This House has an important constitutional role in preventing the House of Commons from extending its own life. Although the circumstances in which that might happen are hard to consider, it is an important check and balance.
This amendment seeks to make it quite clear that the Scottish Parliament cannot extend the interval between ordinary general elections and therefore prolong its own life under any circumstances. It would have been possible of course to make that subject to the agreement of the Westminster Parliament—the British Parliament—but I think that an absolute prohibition on extending the life is the most appropriate way to proceed. I beg to move.
Lord Keen of Elie
My Lords, I note the reasoning behind the amendment proposed by the noble Lord, Lord Forsyth. At present, Section 2 of the Scotland Act 1998 provides that general elections are to be held every four years. That power is to be devolved to the Scottish Parliament, but it will not be without limitation. The Scottish Parliament cannot pass legislation that is not compliant with the European Convention on Human Rights. Pursuant to Article 3 of the First Protocol to the Convention, there is a requirement for free and fair elections at reasonable intervals. The Smith commission agreement proposes that it should be for the Scottish Parliament to determine those reasonable intervals. We consider that that is appropriate and in accordance with the recommendations of the agreement, which the Bill seeks to implement. In these circumstances, I invite the noble Lord to withdraw his amendment.
Lord Forsyth of Drumlean
I have to say to my noble and learned friend that I do not think that that is a very satisfactory response. There was talk earlier in the evening about a one-party state and the dominance of the Parliament by one party. The precedent is long established that it is not possible for the other place to extend the life of a Parliament. Were it to try to do so, this House has an important role, which would prevent that from happening except in the most exceptional circumstances. Perhaps I have misunderstood what my noble and learned friend said, but he appeared to say that it is a matter for the Scottish Parliament to decide what the timing is between elections, and that cannot be right.
I am not suggesting for a moment that the Scottish Parliament might decide to do this under its current regime and Administration but I rather anticipated in putting down this amendment that my noble and learned friend would tell me that there was some other protection. Frankly, for this Government of all Governments to say that we should rely on the European Convention on Human Rights is ironic—to put it mildly. I hope that my noble friend will at least undertake to give this further consideration before we return to later stages of the Bill.
Lord McAvoy
My Lords, on this occasion we cannot support the proposal in the amendment of the noble Lord, Lord Forsyth. Elections to the Scottish Parliament will not be able to be held on the same day as the UK general election or a European parliamentary election. Under the Scotland Act 1998, an election must take place on the first Thursday in May in the fourth calendar year. However, Scottish elections are fully devolved matters. When elections are held is a decision for the Scottish Government, other than the restrictions I highlighted. Unfortunately for the noble Lord—
Lord Forsyth of Drumlean
Is the noble Lord really saying that it could possibly be acceptable for a devolved legislature, perhaps dominated by one party, to have the power, having won an election, to decide that the next election would not be for seven years? That would be a completely unacceptable use of the powers of a devolved Administration. Why is he so opposed to having an amendment to the legislation to eliminate that possibility?
Lord McAvoy
My Lords, when you have devolution, you have devolution. The noble Lord poses a potential situation that is totally unrealistic. I do not think it would happen. Any behaviour like that from a devolved Assembly anywhere in the United Kingdom would be punished by that electorate. Devolution is devolution. I do not want to get contentious at this time of night but I think the noble Lord’s attitude is coloured by a continuing non-acceptance of the principle of devolution. You cannot devolve power and then try to dictate to that Parliament what to do—it is not feasible. I do not see it happening anywhere in the United Kingdom, through any devolved Assembly.
Lord Forsyth of Drumlean
The noble Lord will recall that we already extended the life of the Scottish Parliament from four to five years, I think on one or even two occasions.
Lord Keen of Elie
I first apologise to the noble Lord, Lord McAvoy. I had not appreciated that he intended to speak in the context of this proposed amendment and intervened too early. For that I apologise.
I will just add that the Smith commission agreement determined, on the basis of the consensus of five political parties, that elections to the Scottish Parliament should be devolved, and that the timing of those elections should be devolved to the Scottish Parliament. We must regard the Smith commission agreement as the product of a responsible negotiation by responsible political parties, and we must regard the Scottish Parliament as a responsible devolved body. We have no right to do otherwise, if I might respectfully say so. Given the existing backstop in terms of convention law pursuant to which, under Article 3 of Protocol 1, there is a requirement for free and fair elections at reasonable intervals, in my submission that appears an appropriate way forward.
On the matter of extending the life of the Parliament, as raised by my noble friend Lord Forsyth, an Order in Council under Section 30 in October 2015 allowed the Scottish Parliament to set the 2016 election at more than four years, extending it to five years. I am not aware of another occasion.
Lord Forsyth of Drumlean
On my noble and learned friend’s reference to the European convention, what constitutes a reasonable interval? Would five or six years constitute a reasonable interval?
Lord Keen of Elie
That would be a matter for the Scottish Parliament to determine, and is subject to review. If it gets that wrong, any legislation that it passes is not law, pursuant to Section 29 of the Scotland Act 1998.
Lord Forsyth of Drumlean
Before the noble Lord sits down, could he deal with the reasons why he is not content to rest on the European Convention on Human Rights?
Lord Stephen
I was as interested as the noble Lord, Lord Forsyth, to hear that that was the justification for his amendment being rejected. I would say that he has a case for his amendment, but there have been times when a limited and appropriate extension of the term of the Scottish Parliament has been useful. However, if that happens in future, I do not see why it should not be by a special majority to show that there is solid and widespread support for the proposal from all Members of the Scottish Parliament, or as many as make up a supermajority.
Lord Forsyth of Drumlean
Again, before he sits down, could the noble Lord confirm that it is not because he has always been opposed to devolution that he is taking this view?
Lord Stephen
At this late hour, I am happy to confirm almost anything to the noble Lord.
Lord Forsyth of Drumlean
My Lords, the hour is late, but I will say just a few words in respect of this amendment, which, basically, ensures that changes to the franchise, the constituencies and the number of MSPs—which under the provisions of the Bill require a two-thirds majority—have also to be approved at Westminster. I am not a great believer in opinion polls; as we discovered at the general election, they can be quite wrong. However, it is not inconceivable that two-thirds of the Scottish Parliament at the forthcoming elections could be composed of people who believe that Scotland would be better off independent. If that were to happen, and this Parliament, which is the United Kingdom Parliament, had created circumstances in which it was possible for fundamental changes to be made to the franchise, the constituencies and the number of MSPs, that would be a matter of very considerable concern. Personally, I do not like the idea of two-thirds supermajorities; it is an unfortunate intrusion into our constitutional affairs. It has knock-on implications for other devolved institutions and for Westminster, but of course the Smith commission has recommended it, so it would appear that we have to go along with it. The amendment would provide a belt-and-braces safeguard to ensure that key issues such as the franchise, the constituencies and the number of MSPs were approved at Westminster, having also had a two-thirds majority in the Scottish Parliament. I beg to move.
Lord Keen of Elie
My Lords, Clause 11 requires certain types of electoral legislation to be passed by a two-thirds majority, or supermajority, of the Scottish Parliament. Paragraph 27 of the Smith commission agreement states in terms that this is:
“To provide an adequate check on Scottish Parliament legislation”,
in these areas. An “adequate check” was the consensus of the five political parties which took part in the Smith commission and which arrived at the Smith Commission agreement.
The Government consider that the supermajority requirement provides an appropriate check on this type of Scottish Parliament legislation. Indeed, to approve this amendment would be to give with one hand and then take away with the other so far as the Scottish Parliament is concerned. It would not be in accordance with the spirit of the Smith commission agreement, let alone with the terms of paragraph 27. In these circumstances, I urge my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
My noble and learned friend’s only argument has been, once again, to rest on the Smith commission. He keeps saying that it had the support of all five political parties. I am not aware of the members of the Conservative Party being consulted at all on the Smith commission proposals; nor am I aware of any discussion on those matters in the other place or in this place. What happened was that people nominated by the political parties got together and produced a report. It really is quite misleading to keep saying that this was endorsed by all the political parties. That may have been true of the Liberal Democrats or other parties but it certainly was not true of the Conservative Party. Furthermore, this was all done at an enormous pace—it was all agreed in eight weeks. As we have heard from the noble and learned Lord, Lord Hope, the noble Lord, Lord Smith, himself has not sought to argue that he has endorsed this Bill in terms of the provisions of the Smith commission.
Lord Hope of Craighead
The noble Lord said that he is not to be taken as approving the precise terms of the Bill as a lawyer. He is not a lawyer. He emphasised that he is a layman, and he speaks as a layman when he endorses what is in the Bill. If it were possible to find ways in which the Bill could be improved in relation to constitutional principles or whatever else, he would be in favour of that because that is not his field and he is aware that there could be room for improvement in those areas. What he emphasised was, “Don’t confuse me with a lawyer. I am a layman and I give it support as a layman”. However, if there were respectable arguments from lawyers, he would give way to them and improve the Bill if that was a way of making better progress.
Lord Forsyth of Drumlean
I am most grateful to the noble and learned Lord for making that clarification. It is important that effective checks are in place. This whole process has been carried out swiftly and without much in the way of discussion either among the membership of the political parties or indeed within the House of Commons. Although four days were allocated to Committee, many of these issues were not considered because of the process by which amendments are dealt with. However, I can sense that folk do not wish me to detain the Committee on this matter and there will be further opportunities to come back to it, so I beg leave to withdraw the amendment.