Scotland Bill

Lord Forsyth of Drumlean Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, it might be said that by moving the amendment—and even by discussing it, let alone coming to any decision on it—Westminster is interfering in the work of the Scottish Parliament. However, I have raised the issue because it is a dissolved Parliament and, ultimately, until such time as there is an independent Scotland—heaven or the electorate forbid—it is the responsibility of this sovereign Parliament.

I raise the issue also because for four years I served, along with the noble Lord, Lord Stephen, and others, as a Member of the Scottish Parliament. I came across a huge number of people who were absolutely astonished when they found out that the Scottish Parliament sat for only one and a half days a week in plenary. Members of the Scottish Parliament are paid a substantial amount of money—something like 87.5 per cent of the salary of a Member of this Parliament—and it is seen as a full-time job. Of course, just as MPs have responsibilities in their constituencies, MSPs have constituency responsibilities, too—at least, constituency MSPs do. Committees also meet on a Tuesday and a Wednesday morning. Even so, it is difficult to explain that the Scottish Parliament sits for only one and a half days in the weeks that it is sitting.

As a result of that, some strange things happen. It is amazing. There are other former Members of the Scottish Parliament here, including the noble Lord, Lord Selkirk, who can give their experiences in relation to this. In almost every debate in which I took part in the Scottish Parliament, the speeches were limited to four minutes. Occasionally, we get time limits here but it is ridiculous to expect people to be able to put forward a coherent argument on a major issue of education, the health service or whatever they are dealing with in four minutes.

Compared with the House of Commons, there are also relatively few opportunities for Statements and Urgent Questions. Recently, under Speaker Bercow in the House of Commons, there have been lots of Urgent Questions. In the time that I was in Holyrood, I cannot remember more than one or perhaps two Urgent Questions. There was not the time. It was difficult to fit anything new or additional into the programme and timetable of the Scottish Parliament.

I find the Report stages of Bills there quite astonishing. These are important Bills dealing, as I say, with important issues such as education, social work, local government reform or the health service. They are rushed through. Sometimes, on an amendment being dealt with on Report, people are allowed to argue a case for only 30 seconds. It is ludicrous that they should be squeezed into that length of time.

Again, Question Time, partly but not completely because of the time constraints, becomes a bit of a farce and a very predictable occasion. I could almost write the script for every First Minister’s Questions, with who will come in and how many of them there will be. It does not have the spontaneity of—

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord for giving way and sorry that I was not here for the start of his speech; I had to go to another meeting. Could he help me, as I have not had his experience in the Scottish Parliament? Is there some restriction that prevents it from sitting for more than one and a half days a week? Is that not a matter for the Scottish Parliament to decide itself?

[Lord Foulkes of Cumnock]

As always, the noble Lord is perceptive. I was going to come on to say that but will say it now. I put down the amendment some time ago and am now very pleased to hear that, since then, the Scottish Parliament has started talking about sitting at greater length. The purpose of the amendment was to try and get a debate on this, not just here but in the Scottish Parliament. I am glad that it has achieved that. After this debate finishes—if other noble Lords want to participate—were the Minister to give some indication as to what is happening in the Scottish Parliament in relation to its sitting times, more time for debating these issues and Report stages allowing fuller consideration, I would of course be satisfied and willing to withdraw the amendment. I am very glad I raised this as it is long overdue. If it is now being dealt with, no one will be happier than me.

[Lord Forsyth of Drumlean]

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

[Lord Stephen]

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

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[Lord Sanderson of Bowden]

My Lords, I raise one point on the amendment, which is slightly wide of the purpose and message of the noble Lord, Lord Foulkes. Can my noble and learned friend explain why energy is a reserved matter in the Scotland Act, but, because planning powers are devolved to the Scottish Parliament, the Scottish National Party Government see fit to do nothing about the Torness nuclear station and others in Scotland? After all, when I was happy to be in government dealing with the Electricity Bill, we managed to include powers for the interconnector to send nuclear-generated electricity south of the border. To my mind, that will stop unless something can be done to reverse that decision. It seems a total anomaly in the Scotland Act that a reserved matter such as energy cannot be fulfilled for nuclear energy because of the planning powers of the Scottish Parliament.

[Lord Forsyth of Drumlean]

My Lords, just to show that the noble Lord, Lord Foulkes, and I have not formed some kind of alliance for the purposes of the Bill, I do not agree with the amendment. I agree with the sentiment, which is that the Scottish Parliament should, in so far as is practical, confine its activities to its responsibilities, but to try to write that down is capable of being interpreted as trying to gag the Parliament. I can imagine circumstances in which it might wish to discuss things that are not within its immediate bailiwick and which might not be for representations to the United Kingdom Government. For example, were I a Member of the Scottish Parliament at the moment, I would want a debate on how the Bank of England, rather than the Bank of China, could become the lender of last resort to an independent Scotland. Under the amendment, it would be impossible for one to have that debate. As the First Minister has raised that startling question in the past few days, it would be entirely appropriate for people to raise such issues.

On a more serious matter, at the end of the day, this House and the other place work on the basis of convention. A convention is that we do not discuss devolved matters, and that is respected. That relates to the leadership of the organisation. One of the tragic things in the Scottish Parliament, as the noble Lord, Lord McConnell, pointed out earlier, is that the leadership seems determined to upset the neighbours and to use that to achieve a political objective. It is fair enough to use the Scottish Parliament as a platform to make the case for policy and ideas and to try to persuade the voters, but to use it as a platform in order deliberately to create dissent and division is not the purpose of it. I suspect there is nothing that we can do by way of passing amendments to the law that will change that. To change the way in which the Parliament operates it is necessary to change the calibre and nature of the leadership in the Parliament itself.

[Lord Boyd of Duncansby]

My Lords, we recognise the frustrations that have been expressed here, especially that this House and the other place have a self-denying ordinance and convention that we do not discuss devolved areas, but that is not respected in the Scottish Parliament. Nevertheless, there are three particular problems with the amendment.

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[Lord Wallace of Tankerness]

The first thing I will say in response to my noble friend is that this is not something that has just grown up over the years. As I indicated, it was anticipated from the outset—in the White Paper in 1997—that there would be this opportunity. On the specific case of Malawi, there is a provision in the Scotland Act that allows Scottish Ministers to give assistance to UK Ministers and the UK Government. The co-operation at the time between the international development department and the Scottish Executive allowed that to proceed.

My noble friend raised an important point about a referendum. The United Kingdom Government made it very clear, in our consultation paper of 10 January, that the Scottish Parliament cannot legislate on reserved matters, including on an independence referendum. We have also indicated a preference for a Section 30 order, as have the Scottish Government. By the very nature of a Section 30 order, it deals with things that are currently reserved. One of the earliest was on railways. Therefore it is inevitable that there will be some expenditure and some legitimate activity by Scottish Ministers, who have to discuss and negotiate the terms of any order—which, by definition, must relate to a reserved matter—but look forward to agreeing between the two Governments to put a Section 30 order to both Parliaments. That is clearly why it is important, not just in the context of a referendum but in the context of other areas where a Section 30 order has been used where there has been a transfer of powers from one Parliament to the other, that there is proper co-ordination and consideration. Indeed, in terms of a number of powers in this Bill, there has clearly been discussion between both Governments.

[Lord Forsyth of Drumlean]

Could my noble and learned friend help with the point that was raised by my noble friend the Duke of Montrose about the position in respect of expenditure incurred on matters that are not within the legal competence of the Parliament? Who is accountable for that? Is it the Permanent Secretary as the accounting officer, the executive members or the Members of the Scottish Parliament? What, if any, sanction is there if there is expenditure that is ultra vires?

[Lord Wallace of Tankerness]

My noble friend has tabled an amendment on this issue that we will come to. I suspect that the accounting officer must have responsibility in these matters. However, as I sought to indicate, it would be very perverse if the United Kingdom Government invited a response and a consultation and then said that it was beyond the Scottish Parliament’s competence to engage in it. My noble friend raises an important point, and we will come to his amendment, which will be a proper opportunity to look at that in more detail.

As I indicated, in the case made by the noble and learned Lord, Lord Boyd, it is very difficult to draw the line. It does not cure the problem, but it is not beyond the wit to come up with the appropriate Motion to put before the Scottish Parliament. My noble friend Lord Forsyth and the noble and learned Lord, Lord Boyd, made the point that the genie is out of the bottle. Indeed, it was intended as long ago as the original White Paper that there should be an opportunity to debate these reserved matters. In these circumstances, I invite the noble Lord, Lord Foulkes, to withdraw his amendment.

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[Baroness Liddell of Coatdyke]

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

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

[Lord Forsyth of Drumlean]

My Lords, I hope I can persuade the noble Baroness to be a bit braver. We should not be too concerned about how people present it. The noble Lord’s amendment is not actually imposing anything, it is just saying that a committee should be set up to look at these issues.

I am told that I am supposed to be terribly grateful, as a Conservative, for the system of election that was put in place for the Scottish Parliament, and that I am the fellow who lost every seat when we had 8.5 per cent of the vote. I noted at the last Scottish elections that the Liberals’ share of the vote was down to 5 per cent; I think on the list system it was about 7.8 per cent. We never reached that particular nadir. The relationship with the number of seats that people win in Scotland because there is a four-party system is odd, to say the least. The nationalists have now got 45 per cent of the vote because of the way the system operates, like an avalanche, once a particular shift occurs.

There are a number of faults with the system. I will not repeat the arguments. Of course, one is this problem of having people in your patch trying to do you down, using constituency issues for that purpose. When I was the Member of Parliament for Stirling, one-third of my constituency had never had anything other than a Tory for as long as people could remember; one-third had never had anything other than Labour; the other third could go either way. This is going back to ancient times, but in 1983, even though I was a Thatcherite Tory and many of my constituents were not particularly committed to that view, you were respected as the Member of Parliament, and you made sure that you treated everyone equally, regardless of how they voted, and did your best. You were first and foremost the representative of your constituency.

I have watched what is happening in my constituency now, where you get different parties playing politics and constituents going to one after the other, and people trying to get stories in newspapers and using public funds to promote themselves, and undermining that relationship between the Member of Parliament and his constituents, which is an absolutely vital part of our system and which has been further undermined by the scandals over expenses and other matters. The whole system of being a Member of Parliament works—not because you have any real power but because when you send a letter on the headed notepaper, whether it is the Scottish Parliament or the Westminster Parliament, people sit up and take notice. I regret to say that is happening less effectively because of the damage that is being done and the fact that you have people playing politics.

Goodness knows—I will be tempted—if we are going to have elected Members of this House on a 15-year term, and the average lifespan of a Member of Parliament at the other end of this building is about eight years, that means we will have elected Lords who will last twice as long as Members of Parliament, and who will then be in a bigger patch, using their position to kill off all their opponents. I cannot think of anything worse. So there is an issue here that the noble Lord is right to identify.

There is something else I would like to say, which is probably going to get me into trouble with my party and upset a number of my colleagues. In this system, the way the list operates means that all you have to do to get into the Scottish Parliament is to make sure that you are in the right position on your list, as the noble Lord has pointed out. In my party, that means that all you have to do is get the membership to vote for you. If you are the incumbent and have been around for a long time, it is easier to achieve that because they know the name. Built into the system is something that gives the incumbent an advantage. That can be a good or a bad thing but the worst feature of this is that because you rely on the membership voting to give you your place on the list, you have a vested interest in having a declining membership. All political parties have suffered a lower membership. When I was Member of Parliament for Stirling, I used to recruit members. We had 2,500 members. Now we have 300. I thought, “What is going on in Stirling?”. Then I discovered that in the whole of Scotland we had 10,000 members. Yet we have got about 18 MSPs. We have a system that creates a self-perpetuating hierarchy who have an interest in having less and less contact with their constituents. If ever a system needs to be looked at and reformed, this is it.

[Lord Empey]

Perhaps I may say to the noble Lord that there is no perfect system. We use STV for local government, the Assembly and for Europe. While the same applies in terms of the selection of any candidate for any form of election having a small party that he or she can rely upon, the other ingredient that you have with STV is alphabetic. We have examples of people changing their names and using a hyphenated name—Aardvark-Bloggs or something like that—because they prefer to be at the higher end of the alphabet, and under STV they come first.

In my party, I have examples of councillors who have changed their names to double-barrelled names beginning with A. There is no absolute perfection in all this. People abuse any system and if the noble Lord wants to become Senator Aardvark-Forsyth, we look forward to that as well.

[Lord Forsyth of Drumlean]

I will take that as a speech in favour of first past the post. I should declare an interest because the first election I won was for a Labour ward on Westminster City Council. Of the three candidates, I was the only Conservative who was elected and I am sure that it was because my name began with F. That is certainly a good point to make.

[Lord Maxton]

Of course, we know the system that was described in Scotland. In 2007, the name on the list was Alex Salmond for First Minister. Therefore, it was not the party but his name, which begins with an A. Let us remember that he won by 47 votes in one seat in Scotland, which gave him the largest single party in Scotland. Perhaps we already know the system.

[Lord Forsyth of Drumlean]

I wish that I had been sharp enough to have worked that out in response to the noble Lord, Lord Empey. All parties look at this issue from the point of view of party advantage. If you are going to set up a commission to look at this, it has to be clear of the political parties but, ultimately, it has to be agreed among the political parties.

One of the most remarkable things that I have seen in politics was the Labour Party in control of the Scottish Parliament introducing the single transferable vote for local government. It destroyed the Labour Party’s hegemony in Scotland. It was an act of supreme self-sacrifice, which was clearly thought through in the interests of wider democracy—I am sorry but my tongue was stuck to my cheek. We have ended up with four systems, as the noble Lord said. I defy most candidates of all parties, if they knock on a door and ask, “Could you explain to me each of the electoral systems and how they work?”, to get an answer that has any degree of confidence or accuracy. The whole thing has become ridiculously overcomplicated.

The point about constituency boundaries goes to the heart of this idea of representation. The noble Lord, Lord Steel, says that we have lost all that. No, we have not. It is true that the reform of the House of Commons and the parliamentary constituencies Bill took not enough account of this very important reason. But it strikes me that we have 129 Members of the Scottish Parliament, which seems somewhat excessive. Looking at the numbers it would be possible to bring more logic, more coherence and more relevance to the people of Scotland. Moreover, if one is going to look at the electoral system, one ought also to look at the size of the Parliament and its relationship to Westminster and other bodies.

This is an excellent amendment which I do not suppose the noble Lord will press to a vote but I hope that, in responding, my noble and learned friend will consider how this can be dealt with, because there is no doubt that it is damaging to have all these systems operating in Scotland in a way that is not in the interests of the important relationship between elected representatives and their constituents.

UK: Union

Lord Forsyth of Drumlean Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I am sure that most, if not all, of your Lordships would find it very grievous indeed if the United Kingdom were to break up. Nevertheless, in the 11 referendums that have taken place since 1973, only two were held nationwide. Indeed, previous referendums have been held in only one nation of the United Kingdom—in London and in the north-east of England. We believe that whether or not Scotland should leave the United Kingdom and become a separate independent state is a matter for the people of Scotland. It would not be good for relationships within the United Kingdom if it were felt that some parts of the UK had been prevented from doing so by others. Our sincere belief, which I am sure we share, is that that will not happen—that those of us who believe that the values which we share across these islands are to be upheld will win a comprehensive victory, and that Scotland has contributed to the United Kingdom in the same way as the United Kingdom has contributed to the good of Scotland.

[Lord Forsyth of Drumlean]

Does my noble and learned friend not agree that if the separatists in Scotland wish to leave the United Kingdom, that is a matter that needs to be settled in Scotland? If, on the other hand, the so-called devo-max option is being considered, whereby matters other than foreign affairs and defence are considered in Scotland, that is a matter for the United Kingdom as a whole. It would effectively create an English Parliament and a federal Parliament, and that would have to be settled by a UK-wide referendum.

[Lord Wallace of Tankerness]

I agree with my noble friend that if the separatists were to have their way and Scotland were to vote to leave the United Kingdom, that should be determined by the people of Scotland. I also agree with him that the so-called devo-max proposal, as far as one can understand what it is—in our exchanges last week, noble Lords suggested that it was a product without a brand or a brand without a product; I cannot remember which way round it was—has implications for other parts of the UK, and we are certainly well seized of that fact.

Scotland: Constitutional Future

Lord Forsyth of Drumlean Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

I thank the noble Lord for that contribution. I certainly entirely endorse the latter part of what he has just said. Having campaigned in both the 1979 and the 1997 referendums, I am certainly clear that the fact that in the 1997 referendum the campaigns and the rules were very clear and nobody had any cause to say that there was any jiggery-pokery, or that the goalposts were being shifted, meant that those on the losing side nevertheless felt able to accept the outcome. That is the goal that we all want to see in this. I say that in terms of the earlier part of his question, too. Anyone who reads the consultation paper will see that it is by far and away not a Stalinist document but one that invites consensus and provides a route map towards consensus. That is the spirit in which it is offered to the people of Scotland.

[Lord Forsyth of Drumlean]

My Lords, I congratulate the Prime Minister and my noble friend on this initiative. Could he help me with something that is causing me some bewilderment? The SNP manifesto, on which it got 45 per cent of the vote, says:

“We will give Scots the opportunity to decide our nation's future in an independence referendum”.

In that case, why is this initiative by the Government so unpopular with the Scottish nationalists?

[Lord Wallace of Tankerness]

That is a very fair question. I cannot understand why they would not wish to have the proposal to allow them to achieve their manifesto goal in a legal way, given that back in 2009 the First Minister was calling for a referendum in November 2010. Here we are providing a legal route. But the means of making it fair and decisive are perfectly reasonable proposals on which we are consulting, and I very much hope that on reflection the Scottish Government will agree that this is a proper way forward and will enter into the consultation in that spirit. This is not just a consultation for Governments; we hope that people from all walks of life, in Scotland and furth of Scotland, will also respond.

UK: Union

Lord Forsyth of Drumlean Excerpts

Thursday 3rd November 2011 Lords Chamber

[Lord Wallace of Tankerness]

By asking that question, my noble friend makes it very clear that the First Minister of Scotland and his party have a host of questions to answer, not least on the currency because there are even those who think that if Scotland wished to join the European Union it would be obliged to adopt the euro. Andrew Hughes Hallett, who is on the First Minister’s Council of Economic Advisers, indicated that, as was reported earlier this week. It would be rather odd. Some countries, but not many, adopt the currency of a foreign country but have no powers. It just underlines what a weak position Scotland would be in.

[Lord Forsyth of Drumlean]

Could my noble and learned friend consider the idea of establishing an independent commission to look at the benefits of the union to the United Kingdom as a whole and the consequences of separation, given that the nationalists are determined to hold a referendum on independence, so that everyone can see what the consequences could be and what the facts are?

[Lord Wallace of Tankerness]

My noble friend makes a very interesting and very constructive suggestion. He will understand that I am not in a position to accede to it from this Dispatch Box, although I will consider it. In the mean time we will not wait for the setting up of any commission that might come along. We will continue to make the case for the United Kingdom.

Scotland Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Forsyth of Drumlean]

I support what the noble Lord, Lord Foulkes, has said. By the way, Second Readings are divisible, but the tradition is that we do not divide the House on Second Readings. This is an important piece of legislation, and I am afraid that this situation is not really for the convenience of those of us who care deeply about the legislation. If everyone took the 15 minutes which the Companion allows, I would have to wait until 2.30 am to hear the views of the only woman Secretary of State for Scotland, who is number 33 on the list. This is a scandalous way in which to treat Members of this House, and important constitutional business.

[Lord Soley]

My Lords, I, too, support what has been said. I have a strong view about this, because I regard it as an important issue for the United Kingdom. It is very important that we do all that we can to preserve the union. I think that, if we deal with Bills like this in this way—at this moment as far as I can see we are likely to go on beyond midnight—it cannot be desirable for the House. I have to say to the government business managers that it is not good business management to end up in this situation. They have brought people back for two extra weeks as well as bringing the House back a week early, and yet we will still be dealing with this probably after midnight.

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[Lord Wallace of Tankerness]

My Lords, both sides of the usual channels have no doubt heard the points that have been made. I reiterate the point that this is a Bill of constitutional importance, and I think that it is important that we now make progress to debate it. Given the quality of the speakers—as is the case in of all your Lordships’ House’s debates—I think that, looking down the list of former Secretaries of State, former law officers, former Members of the Scottish Parliament, former junior Ministers in the Scottish and Scotland Offices, we are clearly going to have a well-informed debate, and one that is worthy of the importance of this Bill. I believe that the Bill will strengthen Scotland’s position in the United Kingdom, it will empower the Scottish Parliament, and it will make that Parliament more accountable to the Scottish people. It delivers on our coalition agreement to implement the recommendations of the Calman commission. It is in fact the biggest transfer of fiscal responsibility within the United Kingdom since the Act of Union in 1707, and delivers the first major change to the workings of the Scottish Parliament and Scottish Ministers since that Parliament was established in 1999.

For its first decade and more, the Scottish Parliament has been accountable to the Scottish people for the money it spends. We believe the time is now right to make it accountable for the money it raises—one of the fundamental changes that this Bill will bring about. Many noble Lords present will remember, and indeed took part in, the debates on the Scotland Bill in 1998 in one House or the other. They will recall, however, as any look at the record shows, the significant scrutiny that this House afforded to the Scotland Bill at that time. I notice the noble Lord, Lord Sewel, allowing himself a small chuckle. With all due respect to all the others who took part, he did much of the heavy lifting on that Bill and deserves credit for that. I have no doubt that those who served in scrutinising the 1998 Bill, and indeed many other noble Lords, will afford the current Bill the same level of examination to ensure that it too delivers the new powers that will benefit Scotland.

I believe that the Scottish Parliament has been a success and is here to stay. Indeed, that was the first conclusion of the Calman commission. The Scottish Constitutional Convention, of which I and other noble Lords were members, built up the case for the 1998 Act and set the country on the path towards creating a Scottish Parliament, which is now an important part of Scottish life. Decisions are now taken closer to the people they affect. Decisions on housing, education and hospitals are made in Scotland, for the good of the Scottish people by a Parliament that they have elected to serve them. Devolution in Scotland has delivered notable policy initiatives: free personal care; a Scottish Drug Enforcement Agency; long-overdue land reform; proportional representation for local government elections; a smoking ban in public places, which paved the way for a similar measure in other parts of the United Kingdom. In what seems a relatively short period, devolution has become central to the way in which we work. Many of us in this Chamber have worked either for or with devolution and the Parliament in Scotland.

The Calman commission was established to review the settlement in light of experience and to recommend changes to enable the Scottish Parliament to serve the people of Scotland better. Improving the financial accountability of the Scottish Parliament was an important part of the commission’s remit, which was agreed by the Scottish Parliament and endorsed by the then United Kingdom Government. Membership of the commission included representatives from the three main United Kingdom political parties and from local government, experts in Scots law, business, education, community organisations and the trade unions. I must tell noble Lords that when, in 2008, I agreed to sit on the commission for the Liberal Democrats I was not anticipating that, three years later, I would be the Minister charged with taking the recommendations through the House—not that it would have had any influence on recommendations that I agreed to.

We wish to thank the chair of the commission, Professor Sir Kenneth Calman, the other commissioners and Professor Anton Muscatelli and the independent expert group on finance, which supported the commission in the work that it did. It was work invaluable to the future of devolution and I particularly look forward to the contributions of my fellow commissioners today, the noble and learned Lord, Lord Boyd, the noble Lords, Lord Elder and Lord Selkirk, and the noble Earl, Lord Lindsay, who brought their wealth of experience and understanding to the commission. The Scotland Bill has enjoyed widespread support across the political spectrum. Consensus on its purpose and direction has been the order of the day. This Government are delivering the next chapter in Scottish devolution and remain committed to doing so, with the support of the three main United Kingdom-wide parties. It is on the basis of cross-party consensus that the Bill has been taken forward, alongside a commitment to consider suggestions from others, including the Scottish Government, as we proceed.

Those of us who campaigned for devolution wanted more decisions taken in Scotland by a Scottish Parliament but we also wanted to retain many of the benefits, to both Scotland and the United Kingdom, which come from remaining part of our United Kingdom. The devolution settlement was about getting that balance right. Of course, there will always be those who think that the Scottish Parliament should be responsible for everything and there are those who think that devolution has already gone too far. However, by and large, we have managed to maintain consensus while bringing forward a strong set of improvements to the original settlement. The fact that the Calman commission was not inundated with representations to make fundamental changes to the division between devolved and reserved matters is, I believe, testimony to the judgment of the architects of the 1998 Act.

We will strengthen devolution by providing new powers to the Holyrood Parliament. In 1997, the Scottish public voted for a Parliament that could change the rate of tax within a limited margin. That power has never been used. In fact, the current Scottish Government who, as we know, are forever calling for new powers actually allowed this tax power to lapse last year. The United Kingdom Government do not want to see Holyrood lose its fiscal powers, rather the opposite. The financial powers contained in the Bill are, as I have indicated, the largest transfer of financial powers out of London since the United Kingdom was created. The Parliament will become accountable for raising more than a third of the money it spends.

The Bill will create a Scottish rate of income tax by cutting 10p from every income tax rate, reducing the Scottish block grant in proportion and obliging the Scottish Parliament to set a new rate to meet its spending plans. It will allow Scottish Ministers to borrow up to £500 million for current spending and up to £2.2 billion in capital spending. In the light of a request from the Scottish Parliament, we will make part of that capital investment available in pre-payments for approved projects by 2012.

[Lord Forsyth of Drumlean]

The Bill abolishes the variable rate of income tax—the 3p rate, which was approved by a referendum of the Scottish people—so it is taking away a specific power approved by referendum. Why do the Government not think it necessary to have a referendum, given that they are going to introduce a further power that goes beyond the 3p they are abolishing and which was approved by the people in a referendum?

[Lord Wallace of Tankerness]

The answer to that is that we have absolutely moved forward; the Scottish Parliament has been established and it is very clear that what we are proposing has commanded widespread consensus within Scotland. It was not only the product of a commission that took extensive evidence. It has been supported by the three UK-wide political parties and by the representatives of the Scottish people in the Scottish Parliament, as I will indicate later, by 121 votes to three. There is a broad consensus for that in Scotland and, with the honourable exception of my noble friend, I have not really heard any clamour for a referendum on the specific tax powers involved in this Bill.

As I indicated, it will also devolve landfill tax, stamp duty and the power to create new taxes. The Bill will phase in these powers up to 2016. It will provide a whole new set of policy levers that will be at the disposal of the Scottish Government elected in that year. In his David Hume Institute address last week, my colleague the Secretary of State set out some possibilities that would be open to future Scottish Ministers. With their new tax powers, the Scottish Government could stimulate the construction sector and boost the housing market by cutting stamp duty by, for example, 5 per cent at a cost of £25 million to the Scottish budget, or ensure that Scotland competes to be the greenest country in Europe by proposing innovative new green taxes, offset by other tax cuts, to ensure that Scotland moves the tax burden from people to pollution. They could use the new Scottish income tax to raise investment in public services higher than is the case in other parts of the United Kingdom, or do just the opposite—cutting the rate to attract bright and ambitious people to Scotland and reduce the brain drain from within.

Those are all options. We are providing the power; it will be up to the Scottish Parliament, elected by the people of Scotland, as to how those options are exercised. However, the Command Paper published in November alongside the Bill stated that for every penny by which one increases income tax, the yield will be around £450 million—or 1.7 per cent of the present Scottish budget. That gives a flavour of the considerable powers that this Bill provides to Scottish Ministers. This is a big shift to the financing of public services in Scotland. It will deliver real financial accountability, as more than a third of current spending will be funded by taxes determined and raised in Scotland. It will give the Scottish Parliament a real stake in Scottish economic performance, as a significant proportion of the budget for public services in Scotland will come directly from taxes set and raised in Scotland. Stability to the Scottish budget will continue to be provided by continuing block grant from the United Kingdom Government.

Delivering the Donald Dewar lecture in 2003, my noble friend Lord Steel of Aikwood said:

“No self respecting Parliament should expect to exist permanently on 100% handouts determined by another Parliament, nor should it be responsible for massive public expenditure without any responsibility for raising revenue in a manner accountable to the electorate”.

I believe that this Bill addresses that critique. The Calman commission also concluded that the original divide, as I have indicated, between devolved and reserved policy powers was broadly right. The Bill therefore does not seek radically to alter the boundary but instead updates the balance between reserved and devolved powers in specific areas, as recommended by the commission. We are devolving the power to set the national speed limit and the drink drive limit, to regulate air weapons. Recognising that this is a two-way street, where a consistent approach across the United Kingdom is required, we will legislate at a United Kingdom level, specifically over the winding up of companies and the regulation of healthcare professionals, as provided for by the Bill.

The functioning of the Scottish Parliament itself will be improved by measures in this Bill. The Parliament will be able to elect additional deputy presiding officers, it will have greater discretion to set its own Members’ interests regime, and there will be greater flexibility about the makeup of the Scottish Parliamentary Corporate Body. Closer working relationships between UK and Scottish Ministers will be required. Scottish Ministers have a role in the appointment of a Scottish member of the BBC Trust, and a Scottish Crown Estate commissioner.

The Bill also provides for some largely technical and relatively uncontroversial updates to improve the Scotland Act and help devolution to operate more effectively. Improving devolution for Scotland is an ongoing process, and while constitutional legislation is rare, the Scotland Bill provides an opportunity to make some amendments. In my role as Advocate-General, I am responsible for providing advice on Scots legal issues to the United Kingdom Government, and I therefore thought it right to take the opportunity to review the existing Scotland Act. There are a number of technical measures in the Bill.

I also took the opportunity to revisit an area of the Scotland Act which was raised with the Calman commission by the judiciary, but on which the commission made no recommendation. I established an expert group under Sir David Edward to consider the way in which acts or failures to act of the Lord Advocate that are incompatible with Community law and convention rights are dealt with. Clause 17 of the Bill implements the findings of that expert group and simplifies process, with human rights and European Union law issues being referred to the Supreme Court.

The Bill represents a large and historic change for Scotland, and therefore deserves proper scrutiny, which I am sure this House will give it. Alongside the scrutiny it received in the other place, the Scottish Parliament has examined and debated the Bill, and the Scottish Affairs Committee at Westminster provided a rigorous analysis of the Bill’s provisions.

Your Lordships’ House’s Constitution Committee has noted that the Bill is of clear constitutional significance, but also said that there were no issues of constitutional concern in the Bill. I noted that the Committee welcomed the extensive deliberation which preceded introduction of the Bill. Those of us who are veterans of the PVSC Bill and the Fixed-term Parliaments Bill will be very pleased with that particular commendation from the Constitution Committee. The Delegated Powers and Regulatory Reform Committee also noted no issues in the Bill.

The Government welcome all these reports, and thank those who have worked to consider this Bill. While the Calman commission’s balance and evidence process is the basis for the Bill, the Government have made it clear that we have never ruled out sensible and similarly evidenced suggestions for change. We have listened to recommendations made by the Scottish Parliament and the House of Commons Scottish Affairs Committee, and to advice from other stakeholders, and while we believe that the Scotland Bill package provides the right balance of powers for tomorrow’s Scottish Parliament, we nevertheless have made some amendments to the Bill, and the supporting non-legislative package.

These will give Scottish Ministers greater flexibility to exercise their new powers effectively; for example, by bringing forward to 2011 pre-payments—a form of cash advance to allow work on the Forth replacement crossing to begin. The Government have listened to other recommendations and tweaked the finance and non-finance aspects of the Bill and its accompanying package.

We continue to believe that the package set out in this Bill and the associated Command Paper will strengthen Scottish Devolution and Scotland’s place within the United Kingdom. It provides strong financial accountability to the Scottish Parliament, and the right balance of additional powers. It provides the Scottish Government and Scottish Parliament with new tools to deliver policies in Scotland to respond to new challenges.

The other place debated the Bill over three days in Committee on the Floor of the House. Committee days in this House subject to the Motion later, will take place as a Committee of the Whole House. It is right that legislation of such constitutional significance gains the level of scrutiny it deserves, and that no one is excluded from the process. The whole essence of the Bill has been about inclusion. All parties were invited to be involved in the Calman process, just as they were in the Constitutional Convention. Those parties and those people who accepted the offer have therefore had the biggest hand in shaping these, and therefore the future of devolution.

There is, of course, a relationship with another place, a place much affected by the provisions of this Bill, and that is the Scottish Parliament. As I have indicated, the previous Scottish Parliament overwhelmingly approved the Bill, with 121 MSPs voting for the legislative consent measure in support, three voting against, and one abstaining. The three main UK-wide parties, together with the party which currently forms the Scottish Government, voted in support of the Bill. I think we can say that the Scottish Parliament believes in the Scotland Bill.

A new Parliament with a new focus was elected on 5 May, and as we are all well aware, it represented a landmark change in Scottish politics. This new Scottish Parliament will consider the Bill again, and we will consider sensible recommendations for the Bill made in time for this House’s final amending stage. We will get the chance to consider any recommendations which come from the Scottish Parliament, and the Government will continue to work with the Scottish Parliament’s Scotland Bill Committee, which is considering amendments to the Bill. My right honourable friends the Secretary of State and the Parliamentary Under-Secretary of State will give evidence to the Committee on Thursday of this week.

The noble Lord, Lord Sewel, who is with us today, has given his name to a convention that Westminster would not normally legislate with regard to devolved matters on Scotland without the consent of the Scottish Parliament. This convention has been developed and embodies the respect that this Parliament has for the Scottish Parliament. In keeping with the spirit of the convention, the Government will continue to work closely with the Scottish Parliament Committee reviewing the Bill, and we will look to maintain the support of the Scottish Parliament for the Bill.

As is well known, the Scottish Government have expressed their desire to see additions made. We will look at these further proposals and set them against three tests: that the Scottish Government provides detailed proposals to strengthen the Bill; that the proposals maintain the cross-party consensus that has been worked up and developed; and that any such proposals are beneficial to Scotland, without being prejudicial to the rest of the United Kingdom as a whole. I will of course keep the House appropriately informed of any developments in discussions with the Scottish Government, which will operate under a banner of mutual respect.

I have no doubt that in the course of the next few hours, many noble Lords will wish to debate not only the detailed provisions of the Bill, but also wider constitutional issues of importance to which this Bill is related. Of course, as I have indicated, the political landscape has changed since the Bill was introduced into the other place. Most obviously, the Scottish Government have claimed their election success as a mandate for a referendum on independence.

The Scottish Government have still got a lot of explaining to do when it comes to their main objective of separating Scotland from the rest of the United Kingdom. They do not want to provide any detail on how or when they will conduct a referendum. Nor do they want to explain in any greater detail, to date, what they mean by independence. The people of Scotland deserve to be told, and we will keep pressure on them to provide the facts to the people of Scotland. The Government, along with other noble Lords, believe that Scotland’s future is a future within the United Kingdom.

The Scotland Bill is a vehicle for upgrading Scotland’s devolution settlement. It is a Bill founded on evidence. It is a Bill with a clear purpose and clear principles: to strengthen devolution within the United Kingdom and to make the Scottish Parliament financially accountable. It fixes some things that have not quite worked; it makes the Parliament and the Government of Scotland more responsible for money they raise; and it allows the Scottish Parliament itself to run more effectively. Crucially, it will leave the Scottish Parliament with more powers than it had before; mature powers for a maturing Parliament.

The package strengthens the United Kingdom, by providing a settlement with financial responsibility, but it maintains the key elements of risk and benefit sharing that help the United Kingdom as a whole to perform effectively on the world stage and deliver fairly for all people. Stronger devolution which works for Scotland works for the United Kingdom, and I believe strengthens the United Kingdom for years to come. I commend this Bill to the House. I beg to move.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, it is a pleasure to follow the noble and learned Lord. I very much agree with what he said about the intemperate nature of the attacks that were made on the judges by the First Minister of Scotland. All I can say is that when I was Secretary of State, I made the odd intemperate attack—on the noble and learned Lord, actually—but had I done what the First Minister did, I am sure I would have been sacked the next day. I hope that lessons have been learnt from that.

I hope I shall not damage the position of the noble and learned Lord, Lord Davidson, by saying that his speech was absolutely excellent and that I agreed with many of his points. I shall come to that. However, because of the ridiculous position in which we find ourselves, I shall concentrate, for reasons of time, on Part 3 of the Bill, which is concerned with taxation. My noble and learned friend has said that this will bring accountability to the Scottish Parliament.

I am sorry that the noble Lord, Lord Robertson of Port Ellen, is not here. I have great affection for the debates that we had about devolution. I was opposed to it; he was in favour. He told me that devolution would kill nationalism stone dead. I have to say that the Bill looks curiously out of time. The world has moved on. We all know what the genesis of the Calman commission was. Wendy Alexander quite sensibly suggested that we should cut the Gordian knot and have a referendum on independence once and for all—that we should take the nationalists at their word. Unfortunately, she was not supported by the Prime Minister, so the three unionist parties got together and set up Calman in the hope that it would halt the nationalist bandwagon. That has not quite worked out. We now have a nationalist Administration without, it seems, any check or balance on it. The architecture of the electoral system under the Scotland Act, which was to prevent any party gaining dominance, has failed. We now have a nationalist Administration determined to use all the resources of the Scottish Office to break up the United Kingdom and pretending that it is in favour of an immediate referendum.

When my noble and learned friend says that the income tax powers will bring accountability, I very much doubt it. I give noble Lords a tale of woe as an example: the poll tax. We introduced the poll tax; it did not work out terribly well for us. The argument was that it would bring accountability to local government. The problem was that the proportion of the revenue that was raised, as with the rating system, was small. Therefore, to get a relatively small increase in resources there had to be a huge increase in the level of poll tax. That was the fundamental flaw. The idea of accountability is the same as the case that the Minister makes for income tax. I noticed that in his speech he said that a penny on income tax would raise £450 million.

Let us be clear about this: we are not talking here about the 3p variable rate on the basic rate of income tax. The Bill abolishes that, even though it was agreed by the Scottish people in a referendum, as I indicated earlier. We are talking about introducing, for the first time, a Scottish income tax that will apply at the basic, intermediate and top levels. The Minister said that £450 million was 1.7 per cent of the Scottish Budget. On my calculations, if we take £450 million as the product of that, a 5p increase in the Scottish income tax rate would give you an 8.5 per cent increase in the Budget, so to get 8.5 per cent more money you would have to increase the basic rate of income tax by a quarter.

The stoppages in most people’s pay packets would go up by a quarter in order to increase the Budget by less than 10 per cent. That is disastrous in an environment that has changed, where there is a huge deficit and where the Scottish Parliament was given a year off by the Chancellor and it did not make the necessary deficit reductions. To bring this measure in now seems extraordinary because the income tax proposals suffer from the same gearing problems that applied to the poll tax, the rating system and now to the council tax.

Here, the Government and those who support these proposals have a problem. On the council tax, I think our policy is to freeze it. On the one hand we argue that the Scottish Parliament must have the right to put up taxes in order to have accountability, but in local government this does not apply. We have a new policy that where the council tax is to be increased by more than the rate of inflation, there has to be a referendum of the local people to approve it. I ask my noble and learned friend why that does not apply to the local income tax. Why is there not going to be a referendum first of all on the principle of having this? My noble and learned friend says that there is a consensus in Scotland and that everyone agrees with this. I wager that if you stop three people in the streets of Edinburgh and tell them that a Bill is going through Parliament that could put their income tax up by a quarter in order to increase expenditure by less than 10 per cent—or, in this case, maintain expenditure—

[Lord Wallace of Tankerness]

First, I point out to my noble friend that it was in the manifestos of three parties at the last UK general election and endorsed. It is not intended that these powers will be made available next year in the midst of a recession. My noble friend must remember that the power to put tax up is also the power to bring tax down. Therefore, the question he is putting to the three people in Edinburgh is wrong on so many points.

[Lord Forsyth of Drumlean]

My noble and learned friend has been here too long if he thinks that the electorate reads the manifestos of the political parties and bases its votes on that. As for the point that the power could be used to bring tax down, the Government are asking the Scottish Parliament to find deficit reduction expenditure of about £3 billion. On my calculations based on his figures, that would amount to a 7p increase in the rate of tax just on deficit reduction. While we are on the subject of Calman, my noble and learned friend says that it is not being implemented now, so that is all right because it will be not in his term of office but in 2016; someone else will have to explain the consequences of this policy.

My noble and learned friend says that the deficit will have been dealt with by then. He cannot have it both ways. He has told us that there is a great consensus for Calman. Calman says that we should move to a needs-based system of funding for the Scottish Budget. Furthermore, from the work of Professor Bell and others we know that that would result now in a reduction of £4.5 billion in the Scottish Budget, which is a lot to find in income tax. That is the Government’s policy for the longer term, so we are going to have to have a higher rate of income tax in order to stay exactly where we are. I do not think that this has been thought through.

There are very few things that I agree on with the First Minister, Alex Salmond, but when he says that you cannot run an economy on a narrow tax base like income tax and that you need to have wider tax powers, he is correct. I am against having wider tax powers for the reasons that I will give shortly. I say to my noble and learned friend—and I will table some amendments in Committee—that he should consider whether it might not be right to have a referendum before these proposals on income tax can be implemented and, certainly in line with our policy on local government, to have a referendum if the Scottish Parliament chooses to set a rate of income tax that is higher than it is for the rest of the United Kingdom.

There is another aspect of taxation in this Bill that absolutely terrifies me; it gives the Scottish Parliament the power to invent new taxes altogether with no reference to anyone—not to the voters or to anything else. My noble and learned friend is shaking his head. Am I wrong about that? If they decide to introduce a local income tax, which is their declared policy, as I thought on these Benches—I am not sure what the coalition Government’s position is on local income tax, but the Conservative Party has always been opposed to local income tax because we would have all the problems that we have just been hearing—we could be faced not only with having the highest rate of income tax in the United Kingdom but with having a local income tax on top of that. I see that my noble and learned friend is reading the Bill. I hope he realises that the Bill actually provides for the creation of new taxes. It specifies particular taxes in respect of land and landfill.

On top of all that, we have powers of borrowing, which are described as positive—and here I did disagree with the noble and learned Lord, Lord Davidson. I think that the Scottish Government must be the only Government legislating on the planet that thinks that now, with a huge financial crisis and huge economic problems, is the moment to have higher taxes and higher borrowing. That is what this Bill provides for. When my noble and learned friend says that the powers might be used to cut taxes and cut borrowing, what planet is he living on? I do not know a single serious politician looking at the Scottish Budget, at the problems and at all these goodies that the nationalists have provided—such as free prescriptions, free healthcare and free transport, all of which are desirable but none of which are affordable—who could believe that the result of these powers would not be that Scotland would become the most highly taxed part of the United Kingdom. As the noble and learned Lord said, at the moment Scotland is suffering the worst rate of growth and the biggest threat to employment in the public sector because of the size of the public sector. It just seems plain daft to do this.

Having dealt with taxation, I turn to the issue of referenda. I see that the Bill has sections on elections, on presiding officers, on deputies, on the Supreme Court, on Members’ interests and even on Antarctica. I am delighted to see that Antarctica is not going to be in the province of the Scottish Parliament, having spent my Christmas there. Every corner of the world is covered except vires on referenda, which is the central issue in politics today in Scotland.

Why have the Government not taken the opportunity to clarify the point made by the noble and learned Lord, Lord Davidson? It is perfectly clear to me, from reading the previous Scotland Bill, and as the noble and learned Lord pointed out, that the Scottish Parliament does not have the power to run a binding referendum on the issue of independence for Scotland. The Scottish Parliament now has a majority of Members who are committed to doing so. We know that there is going to be a referendum. How can it be in anyone’s interests not to ensure that that referendum is held on a proper basis with a proper campaign and with proper notice? Why on earth are the Government dealing with every other issue, including the name of the Government, but not dealing with the central issue, in my view, and providing the machinery for a referendum on independence? Of course, I am a bit of an extremist on some of these subjects, so I would prefer the Bill to say that the referendum is to be in October next year, because I think that it is deeply damaging to have this uncertainty.

[Lord Cormack]

A fixed-term referendum.

[Lord Forsyth of Drumlean]

A fixed-term referendum, as my noble friend says. Of course, I have always been a person who has sought out consensus, and I see no objection to putting the machinery in place. Then the First Minister can decide whether or not to use it. In my opinion, he will be absolutely terrified to use that machinery because he knows that he will lose. Then we can get on to discussing the real business in Scotland, which is how we are going to deal with the reduction in the public sector, the creation of jobs and the protection of services. To be fair to my noble and learned friend, the May election was a surprise, so the Government may not have thought of this and there is still time for him to come forward with amendments that reflect the new political reality.

I have one other point about my reading of the Bill that may interest your Lordships. The Bill is ludicrous because of its income tax powers. It creates non-doms within the United Kingdom. I thought, “Am I a Scottish taxpayer or not?”. There are conditions A, B and C, which are a hugely complicated set of proposals. The Bill states that if you have a property in Scotland and a property in London, which I have, you have to count up the number of days for which you stay in each property to decide whether you are a Scottish taxpayer. Then I read another bit that states that if you are a Member of the House of Commons, a Member of the Scottish Parliament or an MEP, whatever the number of days you are automatically up for the Scottish income tax. There is no mention of the House of Lords, so the good news is that Members of the House of Lords will be able to become non-doms if they spend more time in London than in Scotland. Who writes this stuff? Are we all to be counting our days? Wait for it. The Bill also states that the Scottish rate of income tax will not apply to you in respect of dividend or savings income, so the good news is that Scotland will be a great place to retire, because if you have only dividend and savings income you will not pay the tax. If you want to set up, grow or expand a business, go to England. What sort of message is that to send to people who are concerned about our economy in Scotland?

I understand the politics of the Bill, but why are we giving the Scottish Parliament the power to have a different speed limit from that in England, or a different level for drink-driving? What is life going to be like in the Borders? You cross a bridge and suddenly you are illegal. Are you allowed two drinks or one drink? I am no great Euro fanatic, but if anything, I would say that we should have a common European view on speed limits and drink-drive limits if for no other reason than that everyone would know what they are. The idea that we should change it in Scotland and have something different in England only adds to bureaucracy and confusion and is being done for political reasons. I do not know anyone in Scotland who says, “We really ought to be able to decide our own speed limits, and it is an absolute scandal that we have to be stuck with what is being decided by Westminster as to the number of drinks that we can have in the pub before we go off in a car”.

In conclusion, I am not really very happy with the legislation. I am not happy that we have had no time to discuss it. I look forward to an extended and interesting Committee.

[Lord McConnell of Glenscorrodale]

My Lords, I suppose that the starting phrase should be, “Follow that!”. In any debate on the constitutional position of Scotland, my starting point is what is best for the people of Scotland and what is best for Scotland—not what is best for the coalition Government, the Labour Party or even the union, but what is best for Scotland and the people of Scotland—whether it is best to be inside or outside the United Kingdom or, indeed, the European Union.

For me, devolution for Scotland, and for Wales and Northern Ireland within the modern partnership of nations that is the United Kingdom, is indeed the best arrangement for Scotland and for the people of Scotland. That is why in my very first vote I cast a yes vote in the 1979 referendum that the noble and learned Lord, Lord McCluskey, mentioned earlier. That is why I campaigned through the 1980s and 1990s and was involved in the convention that the Minister mentioned in his introductory remarks, and why I stood for the Parliament and had the pleasure of serving with my noble and learned friend—I call him my friend even though he sits on that side of the House—as First Minister and Deputy First Minister in that Parliament.

Do I believe that the Scottish Parliament has done everything right in the 12 years since 1999? No, of course not; no Parliament does everything right. Do I believe that the Scottish Government or all First Ministers have done everything right? No, of course not. All Governments and First and Deputy First Ministers will make mistakes from time to time. But is Scotland a stronger and a better place? I would argue that, yes, it is. Did we survive and indeed build on the electronics manufacturing meltdown in the late 1990s to ensure that our economy's growth rate matched that of the UK by 2007? Yes we did. Did we reverse the brain drain that the Minister mentioned in his introductory remarks and increase Scotland's population after years of decline? Yes we did, through policies pursued in the Scottish Government and the Scottish Parliament. Did we lead the rest of the UK in the smoking ban? Yes we did. Did we reform Scotland's land laws and criminal justice service? Yes we did.

Devolution has made Scotland a stronger and better place, but after 12 years it is right to review the settlement agreed by referendum and by this Parliament back in the late 1990s. Was Calman the right way to do that? I think, on balance, yes. I am not a great fan of committees of the great and the good or of trying to seek consensus for the sake of consensus, but on the issue of the constitutional position of Scotland within the United Kingdom I think that the attempt to find consensus and the way in which that was done was broadly the right approach. Do I believe that the proposals have merit? Yes. Initially, I was not convinced by the report of the Calman commission, but over time I have become persuaded that most of the proposals have merit. Are they perfect? Of course not, but I do not believe that perfection should ever be the enemy of progress, as has been said by others more eminent than me.

Do I believe that the Bill deserves scrutiny? Yes, I do, but I also believe that it will ultimately deserve support. It contains proposals that are both radical and reasonable. I will come to the radical ones in a second. Although some of the initial proposals may irk the noble Lord, Lord Forsyth, I believe that, subject to the scrutiny that we need to give them, they will ultimately be supported by this House and Parliament. I am sure that they will lead to sensible decision-making in Scotland and therefore deserve a fair wind.

On finance and taxation powers, the original tax power was conceived at a different time and in a different economic climate. Like the electoral system, it was part of a settlement designed to secure the progress of devolution. The power to increase income tax by plus or minus 3p in the pound has never been used. That is partly because the parties who would have used it lacked the courage to do so. The nationalists lost an election in 1999 because they proposed to use it by increasing income tax and never made that proposal again. I would argue that one reason why the Scottish Conservatives have been in the doldrums since then has been that they have never been brave enough to propose to reduce income tax in the Scottish Parliament. That power has now become redundant because the political parties in Scotland have never felt that it was an appropriate use of the powers of the Parliament.

[Lord Forsyth of Drumlean]

One of the reasons it has not been used is because, when I was Secretary of State, the budget was about £14 billion. It is now about £30 billion. That was a period when there were vast amounts of money coming in. We are now in a period when the opposite is happening.

[Lord McConnell of Glenscorrodale]

I was just coming to the issue of the increase in the budget. In the mean time, the budget has increased from about £10 billion when I was the first Finance Minister to about £30 billion. A broad consensus has developed in Scotland over that time that there is not enough responsibility for spending in the Scottish Parliament and the Scottish Government and that there is a need to change taxation powers—the way that the Scottish Parliament receives finance and that the Scottish Government raises finance—to ensure greater accountability of decision-making.

I was not initially convinced by the proposal in the Calman commission but I have become convinced that it could indeed be workable and improve the governance of Scotland. As the noble Lord, Lord Forsyth, has just said, it is wrong to argue that the Scottish Parliament, perhaps alone among legislative parliaments in the world, is not fit to set taxes. As long as a parliament is held accountable for its decisions, it should be free to set some taxes. That opportunity in the Scottish Parliament would lead to more responsible decision-making than has perhaps been exhibited at some times over the last 12 years.

This power is also fundamentally different from the imposition of the poll tax back in the late 1980s. The difference is that income tax is income related whereas the biggest problem with the poll tax was not its gearing—although that was an issue—but the fact that it was correctly perceived to be unrelated to income and provoked a reaction and civil unrest across the country.

We should test the proposal here. The noble Lord, Lord Forsyth, made some important points about the need to test the detail. In my view, the principle is right. The Scottish Finance Minister having to set a budget every year and make a decision to raise taxes would enhance accountability and responsibility in the devolved settlement. However, since the Calman proposals have come forward—

--- Later in debate ---

[Lord Sewel]

Treaties do—a treaty change would require unanimity. In terms of the normal day-to-day policy-making of the EU, it is now virtually all qualified majority voting.

Can I get back to nuclear energy? Nuclear energy is essentially reserved, but the Scottish Parliament—the Scottish Government—is opposed to it, wanting to use, I suspect, their planning powers to prevent it. The issue is whether the use of the planning powers would pass the purpose test on vires which is in the Act. If there is doubt about that, surely this is the opportunity to make it absolutely clear where responsibility for nuclear energy lies. That is a big issue that we are going to have face up to in this country in the very near future.

The second area—the obvious one—is to do with the calling of a referendum on independence. As the Minister knows, that specific issue was a matter for debate both in the other place and here during the passage of the 1998 Bill. Perhaps I may read two quotations. One follows a question that was asked by the then Mr Michael Ancram of Donald Dewar particularly on this point. The Secretary of State replied:

“It is clear that constitutional change—the political bones of the parliamentary system and any alteration to that system—is a reserved matter. That would obviously include any change or any preparations for change. … If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements ... A referendum that purported to pave the way for something that was ultra vires is itself ultra vires”.—[Official Report, Commons, 12/05/98; col. 257.]

Those were the words of Donald Dewar. In this House, the Minister in charge of the Bill was also questioned on this issue. There was a specific amendment put down. In arguing that any act about the continuation of the union would be beyond the competence of the Scottish Parliament and therefore not lawful, the Minister said:

“Perhaps I may go through the three steps that lead to that conclusion. First, the parliament cannot legislate if the provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union of the Kingdoms of Scotland and England is a reserved matter by virtue of paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on independence would be legislation about whether the Union should be maintained and would therefore relate to the reserved matter of the Union, and so be beyond the competence of the parliament. That is brought in by the purpose test [on vires]”.—[Official Report, 21/07/98; col. 854-55.]

Do the Government still hold to that position or not? If they do not, they must in all fairness, honesty and transparency amend the Bill so that it deals with and faces up to the issue.

On the increase of non-financial powers, which are of mind-blowing importance, I welcome them. There is no fundamental change in them, which is perhaps because the original Act was quite good. The noble Lord, Lord Forsyth, has previously spotted the question of the poor guy who lives in England, drinks in England, but drives through Scotland to get there. At the beginning and the end of the journey, he is perfectly lawful, but for the five miles or so that he drives through Scotland, he is committing a crime. I am sure that this is not beyond the powers of the Government to sort out.

The real substance of this Bill is the financial powers. That is the real guts of the whole thing. I welcome the intent of those clauses. I believe that the one major mistake we made in 1998 was failing to ensure that the Parliament was financially accountable to the people of Scotland. That omission has meant that the crucial political decision of striking a balance between expenditure and taxation has been missing, and that has led to at least a rhetoric of irresponsibility. By giving this power, that is closed off, and I thoroughly support it.

However, I do not believe in fiscal autonomy, not least because devolution provides a structure through which the resources of the whole of the United Kingdom can be redistributed so that more wealthy and prosperous nations and regions of the UK can assist the less wealthy. That, at heart, is the social democratic argument for devolution.

As for the powers of the Scottish Parliament to create new taxes but only with the approval of the Parliament of the United Kingdom—a point which the noble Lord, Lord Forsyth, may have skipped over when reading the Bill—the issue is how that is going to be done. Will it be done by primary legislation? Will that approval be given by primary legislation, by resolution or by order? That has to be specified in the legislation.

[Lord Forsyth of Drumlean]

I hesitate to interrupt—I have said too much already tonight—but, just on that point, if we cannot bring ourselves to deal with the vires, does the noble Lord seriously think that we are going to bring ourselves to contradict them if they introduce a new tax?

--- Later in debate ---

[Lord Wigley]

Let me make it clear that if I used the term “independence”, I would not use it in the way that UKIP uses it—wanting to pull out of Europe and believing that you cannot be independent without being a state with a wall around it. I believe there has to be co-operation between independent countries and within frameworks such as the European Union. Indeed, there has to be co-operation within these islands, but that relationship may be a new relationship.

The reason I was pointing out the speech made by Sir John Major was that it should be relevant to the parties opposite. It should be relevant that their former Prime Minister made a far-reaching proposal that may well be relevant in the context of what the noble Lord, Lord Lang, spoke about earlier in this debate, and this should be considered.

[Lord Forsyth of Drumlean]

The noble Lord has put a lot of emphasis on the membership of the European Union, but does he recognise that an independent Scotland would have to apply for membership in the European Union? It would have to take its place in the queue, it would require unanimity, and it would almost certainly be blocked by countries such as Spain and others. What he is proposing is not attainable in a realistic timetable.

[Lord Wigley]

I am very familiar with the arguments about Spain fearing what will happen in Catalonia and the Basque country. If those two national groups within Spain do move towards independence, Spain itself will face that question, but that is a matter for Spain. It is a matter for the European Union whether it would prefer to see a Scotland outside the European Union in those terms.

I certainly would not want to see Wales outside the European Union, but I believe that there has to be a change in the relationships within these islands that respects our ambitions to take every decision that we can for ourselves, whether in Scotland or in Wales, while working together and having an effective voice at other levels where decisions are taken that cannot be taken within our two countries.

This approach is surely a force that the Government need to address, and the consequent agenda is currently being neglected. First, there is a need to ensure balanced, symmetric devolution throughout these islands, especially to Wales and Northern Ireland. Secondly, and crucially, there is a need to address the unspoken cry of, “What happens to England?” and indeed, how Westminster institutions—including this Chamber—can be re-engineered to help address an agenda whose force is not yet being heard but whose consequences cannot be avoided.

--- Later in debate ---

[The Earl of Caithness]

My Lords, this Bill was introduced in the other place on 30 November last year, St Andrew’s Day; 21 June is not quite such an auspicious day in Scotland but I guess that until today my noble and learned friend Lord Wallace will have remembered 21 June as the anniversary of the scuttling of the German fleet in Scapa Flow in 1919. From now on, I guess he will remember 21 June for the Scotland Bill.

Ironically, we might all be wasting our time in this debate if there is a referendum. Most of the provisions will not come into force until after the referendum might take place. Therefore, I support the cause that we ought to assert the constitutional duty of this Parliament to determine the timing and composition of the referendum.

This is a groundbreaking Bill, particularly on finance matters. As such, I welcome it. In the early and mid-18th century, the well used phrase in Ireland and the future USA was, “No taxation without representation”. Three hundred years later, the call is for no representation without taxation. The UK has the most centralised tax system of any major economy, with just over 4 per cent of tax revenues being set and collected locally. That is basically council tax. Despite this, the current law gives the Scottish Executive and Parliament decision-making powers on 60 per cent of the spending that is identifiably Scottish. That is unjust and bad for democracy. The Scottish Executive has always been able to spend and ask for more money, without having to justify that to its electorate. That is an incentive to spend more, rather than spend effectively. The Scottish Executive has been rather good at that.

Things will be different for the future Scottish Government. Rather than the paltry 4 per cent of local revenue, they will be responsible for raising approximately 35 per cent of their revenue, with the remaining 65 per cent still coming from the UK block grant. That takes the ability to raise local taxes to a percentage level comparable to that of the USA, but still less than that of Canada. I should like to see that expected 35 per cent be even higher but I appreciate that there are many difficulties. Any transfer of taxation powers must not increase costs of administration to the point where the transfer is uneconomic and detrimental to business. I therefore ask my noble and learned friend Lord Wallace whether he can tell the House what further taxes are now being considered for transfer. What is the justification for the deduction of 10 percentage points of income tax? Why should it not be 15 per cent, which would give more accountability to the electorate in Scotland? Can there be a different basket of taxes that the Government can transfer to Scotland to give the accountability, but without causing some of the concerns that I will come to later?

Moreover, does my noble and learned friend agree that there is still a fundamental flaw to this Bill? The flaw is that it is based on the outdated existing financial settlement. Through the block grant, over the past 24 years Scotland has received approximately its share of North Sea oil revenues. Thus it has been financed as if it was independent but—this is the crucial point—it has not had to cope with the huge fluctuations in the price of oil. The Executive’s spending programme has been cushioned from the marketplace and in times of low oil prices has been subsidised by the rest of the United Kingdom. Is it not time for the whole basis of the block grant to be changed to one of need and linked to the price of oil? That would encourage a future Scottish Government to be much more prudent than the ones that we have had to date and to spend more effectively. It would expose the country and the electorate to the realities of the real world and to the benefits that the union has brought to Scotland.

I listened carefully to the concerns raised by my noble friends Lord Forsyth, Lord Lang and Lord Sanderson. One of the concerns was population. How can one say that Scotland cannot raise 35 per cent of its revenue from its population? If one talked about that to people in Denmark, Finland or even outside the EU in New Zealand, they would be amazed, and the response would be a surprise to my noble friends.

[Lord Forsyth of Drumlean]

Will my noble friend give way?

--- Later in debate ---

[Lord Wallace of Tankerness]

That is a highly hypothetical question. The Scottish Parliament has already approved the proposals by 121 votes to three. It remains to be seen what the committee of the new Parliament will do with any amendments, but the Scottish Parliament has already approved the proposals.

With regard to the specific powers on the boundary between devolved and reserved matters, I know that there has been comment that the Bill does not contain a substantial number of powers. As I said earlier, that is probably a reflection of the fact that the balance struck and judgments made in the initial Scotland Act were basically right, but we should not belittle or minimise the changes being made. They have been well thought through. In the case of Antarctica, there was clearly an oversight, but that is not an academic argument—well, in some respects it is an academic argument because if anyone wishes to undertake research in Antarctica, they require a permit or licence, and I am sure that Scottish academic institutions will wish to do so. It is only right that we ensure that the proper regime is in place for them to do so with certainty.

My noble friend Lord Shrewsbury asked about air weapons. The question here is not so much about the devolution of the power; some of his points reflected the fact that the Calman commission did not go beyond air weapons because the advantage of having a common system for other firearms throughout Great Britain was well understood. Many of the issues he raised are not so much about the devolution of the power but how the power might be used by the Scottish Parliament. Clearly, we will come back to that in Committee, and I look forward to looking at that in greater detail.

My noble friend Lord Forsyth suggested that we should not get too excited about a change to drink-driving. He might want to note the evidence provided by the Association of Chief Police Officers in Scotland to the Scotland Bill Committee of the Scottish Parliament. It stated that ACPOS welcomes the proposals contained in the Bill relating to drink-drive limits, which it would consider a step towards helping save lives and preventing serious injury on Scotland's roads. That is not a trivial matter at all. It is an important point. If, by exercising the power, the Scottish Parliament is able to pass legislation that would have that positive effect, then we welcome it.

[Lord Forsyth of Drumlean]

Is that not rather anticipating that the Scottish Parliament would choose to reduce the level rather than to increase it? Is that not a gross assumption?

[Lord Wallace of Tankerness]

The indications that have been given to us by those pressing the case for the change are that, to address the serious problems of alcohol misuse in Scotland, it was more likely that the level would be reduced rather than increased. I take the point that that could be a presumption but it is one that is fairly well based.

The noble and learned Lords, Lord McCluskey and Lord Boyd of Duncansby, and the noble Baroness, Lady Kennedy, all mentioned Clause 17 and the role of the Lord Advocate. Whatever differences there might be in terms of the detail of that particular clause, there was a general agreement that issues relating to convention rights and European Union law should ultimately be litigated in the Supreme Court. That is certainly the conclusion of the expert group, which was set up under Sir David Edward’s chairmanship. Clearly, there will be an opportunity to go into the detail of how that will work in Committee.

The noble and learned Lord, Lord Davidson of Glen Clova, also raised the important point about whether the roles of the Lord Advocate should be split. As was said, this issue has been around for some time. I was rather surprised for it to be raised from the Front Bench at this stage of the proceedings. No doubt, we will again have an opportunity to debate that. As I indicated, the position of the Secretary of State—and the Government—is that, if novel proposals are to come forward at this stage, the tests are that they should be very detailed in their presentation, command a consensus and not only be for the benefit of Scotland but not prejudice other parts of the United Kingdom.

My noble friend Lord Caithness asked what other powers there might be. The noble Lord, Lord Wigley, raised the issues that the Scottish Government have raised. Again, those tests will apply. We hear a lot of rhetoric from the Scottish Government but we await with some interest more detailed proposals. We are still awaiting any submission from them on excise duty. I certainly found the points made by the noble Lord, Lord Gordon of Strathblane, and my noble friend Lord Younger of Leckie very persuasive in the context of the Calman commission, which did not recommend any devolution of excise duties. The tests that I have already outlined will apply to any of these proposals coming forward from the Scottish Parliament, including for example on corporation tax.

In the Government’s mind, the only other taxes which could be devolved are the two which were recommended by Calman but are not in the Bill: aggregates tax, which we did not proceed with because of litigation that is currently in place, and air passenger duty—on the basis that the whole question of aviation taxation was being looked at. Did it make sense to devolve something which was under a much wider consideration?

The noble Lords, Lord Morgan and Lord Wigley, asked about the position in Wales. It was announced back in July that an independent commission will be established in the autumn to look at the financial accountability of the Welsh Government and the National Assembly for Wales. It will examine the issues of fiscal devolution and accountability, and take into consideration the work of the Holtham commission, mentioned by a number of contributors including my noble friend Lord Maclennan of Rogart. The Government are currently discussing the terms of reference and the commission members with the Welsh Government.

Important points were made by my noble friends Lady Linklater of Butterstone and Lord Lindsay about the recommendations within the Calman commission relating to non-legislative but important matters regarding links between parliaments and governments in Scotland and at Westminster. I can assure your Lordships that we take this matter seriously. Since the Government came to office in May 2010, we have committed ourselves to upholding an agenda of mutual respect and engagement with all the devolved Administrations.

We have successfully resolved some disputes under the new dispute resolution procedure that had been put in place by the previous Government: there have been two joint ministerial committees in plenary session since May 2010; the joint ministerial committee on Europe continues to meet regularly; the joint ministerial committee (domestic) has met twice; and, consistent with the Calman commission recommendations, we have issued communiqués after plenary meetings and made an annual report on the work of the JMC. I will be happy to give further information to my noble friends, but one other thing which I remember the Calman commission was keen on was attendance of Ministers at respective parliaments. We support the attendance of Ministers before committees of the Scottish Parliament. I think I am right in saying that the Chief Secretary to the Treasury has given evidence; I certainly gave evidence, along with the Secretary of State and Parliamentary Under-Secretary of State, to the previous Scotland Bill Committee in the Scottish Parliament, and I intend to do so again with regard to the new committee.

The electoral system was mentioned by the noble Lord, Lord Foulkes. When the Calman commission looked at this, it noted that the Arbuthnott committee said it should be looked at again after the 2011 elections. Therefore, we did not think it appropriate as Calman commissioners to make a recommendation on that. There is an acceptance, following the Arbuthnott committee report and the Calman commission report, that some form of review of the electoral system for the Scottish Parliament is required. The matter is under consideration, and the Government will confirm our intentions at a later stage.

It is clear that the key provisions in this Bill relate to finance. I rather thought when I heard my noble friend Lord Forsyth mounting his arguments against the tax-varying powers, as usual with great gusto, that they were very similar to the arguments we had in 1997 against tax-varying powers, so I will not rehearse all of these now. What the commission was faced with was trying to get a proper balance between the efficiency of the tax system and proper accountability. At the core, a number of noble Lords who have contributed to this debate have pointed out the importance of trying to ensure that there is a link between spending money and raising money. I think it was the noble Lord, Lord Morgan, who talked not only about “no taxation without representation” but also about “no representation without taxation”. That link is very important.

What we did within the Calman commission, and which the Government accept, was to look at different international systems. I do not agree with my noble friend Lord Forsyth, who compared income tax to the poll tax. As the noble Lord, Lord McConnell, pointed out, the thing about the poll tax was that it had no link to income at all, which was one of its problems and its criticisms. Income tax, however, we were advised, was one of the taxes, perhaps more than any other, which actually impacted not only in reality but in perception upon individuals. We thought that in terms of identifying a tax which was most likely to accentuate accountability, income tax was the appropriate tax.

My noble friend Lord Caithness asked, “Why the 10p?”. Clearly we are trying to achieve a balance between the Scottish Parliament having responsibility, while recognising that Scottish taxpayers contribute to the United Kingdom as well to a whole range of services which are provided at a United Kingdom level.

The question of the Scottish taxpayer was put very graphically by my noble friend Lord Lyell, with tributes to Andy Stewart. There is a different test from that which applied to the Scottish variable rate, and indeed Clause 32 of this Bill, for such time as the Scottish variable rate will continue, is brought into line with what is proposed in future.

For most people, determining whether or not they are a Scottish taxpayer will be a straightforward matter: it will be whether their sole or main place of residence is in Scotland. If it is in Scotland, they will be Scottish taxpayers. It is not an unusual thing to use a sole or main place of residence for capital gains tax purposes. I think it is also used for when we have to register as Members of this House as to where our transport links will be. So it is not a novel concept. One of those individuals who are UK resident but do not have a close connection with any part of the United Kingdom will need to establish the number of days they have spent in Scotland. Again, I suspect that this is a matter that we will look at in great detail in Committee.

[Lord Forsyth of Drumlean]

I know that the hour is late but that is not what the Bill says, unless I have misread it. It says that if you have more than one residence you count the number of days that you have spent in those residences.

[Lord Wallace of Tankerness]

I do not think that my noble friend has that right. The principal point will be whether it is your sole or main residence. As I have just indicated, it is only if you are an individual who does not have a close connection with any part of the United Kingdom that the number of days spent in Scotland will be relevant. We can clearly debate that, as we no doubt will, in greater detail when we come to Committee, but I seek to reassure my noble friend on that. He also said that the SNP would take the power to have new taxes and would implement them willy-nilly. However, the provisions in the Bill make it very clear that the power to have any new taxes will have to be passed not only by the Scottish Government but by both Houses of this Parliament. An order would not be brought forward to this Parliament unless it had the agreement of the UK Government. Therefore, there would have to be negotiation between the UK Government and the Scottish Government before such an order could be brought forward, and it would be subject to an affirmative resolution of both Houses of Parliament.

The noble and learned Lord, Lord Davidson, wished the borrowing powers to be accelerated. My noble friend Lord Younger put his finger on the matter: there is a pragmatic reason for delaying such powers in the context of the current spending review period. The borrowing of the Scottish Parliament would be aggregated with UK borrowing and, given that the borrowing limits have been clearly identified in the current spending review period, we do not think it right to move at this stage to extend the borrowing powers to the Scottish Parliament before 2015. The exception to that—it is perhaps not a proper exception although it is an important point—is that, in response to representations from the Scottish Parliament and the Scottish Government, we have made prepayments, or a sort of cash advance, in terms of the money required to do the preliminary work for the building of the new Forth road crossing. That has been widely welcomed and it is a pragmatic response to the situation.

The noble and learned Lord, Lord Davidson, asked about the administrative burden and cost of income tax powers. Employers and software providers have already made changes to payroll software so that they can operate the existing Scottish variable rate of income tax. Therefore, the existing payroll software provides for a different rate to operate. Additional compliance costs and burdens may arise if the Scottish Government seek to adapt the existing process—for example, to introduce a greater degree of transparency—by requiring the Scottish rate to be separately identified on payslips and P60s. Further costs and burdens could also arise in relation to the treatment of certain tax reliefs.

The noble Lord, Lord Browne, asked about the working group. There is a high-level implementation group, which involves a number of bodies and organisations with an interest in the detailed implementation of the tax reliefs. It has already met three times and is due to meet again in the autumn. There is also a joint Exchequer group involving Ministers in the Scottish Government, the Secretary of State and the Parliamentary Under-Secretary of State. The group will look at the negotiation of the detailed implementation of these plans. I think that it is due to meet again shortly in the autumn. In addition, separate groups have been looking at issues such as tax on charitable giving and other such detailed issues. These groups have already met, and I assure the House and the noble Lord, Lord Browne, that those meetings will continue.

Finally on finance, the noble Lord, Lord Hughes, asked about the workings of the Scottish rate. He asked, as with chicken or egg, which would come first—the reduction or the block grant. Unlike the Scottish variable rate, the Scottish rate of income tax will require an annual decision from the Scottish Parliament. The proportionate amount will be deducted from the block grant and, if the Scottish Parliament does not set a rate, it will not get the money. It will be obliged to set the rate and to do so in good time before the start of the tax year—again, giving proper notice in terms of collection and to businesses which will have to administer the system.

Related to that, the question of bond issuing was raised by the noble Baroness, Lady Liddell. Although the Bill makes provision for that to be implemented—not by having further recourse to primary legislation but by secondary legislation—it will be dependent on the outcome of a consultation, which is either under way or is about to get under way, regarding the merits of going down that road, taking into account some of the points which the noble Baroness raised.

Linked to this is the question of the Barnett formula, raised by a number of noble Lords, including my noble friends Lord Maclennan, Lord Forsyth, Lord Caithness and Lord Younger, and the noble Baroness, Lady Ramsay. Under the proposals in the Bill, as I have indicated, the Scottish rate of income tax will be reduced by 10p. It will then be for the Scottish Government to decide to levy in Scotland. I am sure a number of noble Lords will wish to debate this further. The Government have made clear in the coalition agreement that we recognise the concerns about devolution funding, but the priority has to be to reduce the deficit and to stabilise the public finances.

The noble Lord, Lord Sewel, said that something should be in the Bill about the formula. The position is that the Scotland Act contains nothing about it and that the Bill, if implemented, is neutral about its future. There will be a block grant but the formula to determine it can be done externally to the provisions in the Bill. We have been duly warned by at least one if not two noble Lords that we will have amendments on this. I note that the noble Lord, Lord Foulkes, and others are liable to bring forward amendments on the question of a referendum. A number of noble Lords have pressed a case for the United Kingdom Government holding a referendum on independence. Their argument is that it is in Scotland’s interests to end the constant constitutional uncertainty and that a clear-cut question will produce a clear-cut endorsement of Scotland’s place in the United Kingdom.

I understand the motivation of those who have argued that case. Many, including the Government, would like nothing more than to see an end to the manoeuvring of separation, which for so long has distracted Scotland from the many other opportunities and challenges on which we might more fruitfully and productively focus. As this debate broadens out beyond this Chamber to the political classes, more questions will be put to the SNP Government, as we saw last week, with important speeches by representatives of the CBI. The dangers of continued uncertainty will become more obvious to people across Scotland if the SNP—“rather coy”, was how the noble Lord, Lord Hughes, described it— carries on ducking questions. It will need to be clear about its plans and its timings.

Perhaps it is too ambitious to hope that tomorrow, when he announces his programme for government, the First Minister will start to say something about that. As noble Lords have indicated, there are crucial questions about the euro or the pound, and about whether it would be the European Central Bank or the Bank of England that would have responsibility. My right honourable friends the Secretary of State and the Chief Secretary to the Treasury raised these questions last week. We will continue to press the Scottish Government on these issues. I take the point made by the noble Lord, Lord McConnell of Glenscorrodale, about the importance of all us waking up to the challenges and positively making the case for the United Kingdom, and for Scotland being part of that.

Fixed-term Parliaments Bill

Lord Forsyth of Drumlean Excerpts

Monday 18th July 2011 Lords Chamber

In many of our debates in this House, I regularly hear many noble Lords expressing concern about the degree of power that can be exercised by a Prime Minister with an overall majority in the other place. If carried, the Motion proposed by the noble Lord, Lord Butler, will help to maintain that power for Prime Ministers in future. We should recognise that the effect of abandoning the principle of the Bill is simply to leave the timing of future general elections to the whim of a Prime Minister who will inevitably choose the timing to party advantage, not national interest, to his or her own benefit and in ways calculated to disadvantage opponents.

[Lord Forsyth of Drumlean]

I hesitate to interrupt my noble friend, but I feel that he is making a bit of a Second Reading speech. I hope he will not mind if I ask him a question that has been puzzling me on the idea of the abuse of prime ministerial patronage. If we know the date of the election, is that patronage not going to be used to ensure that all kinds of goodies are announced before that date, and are Governments not going to plan their programmes accordingly? Is the problem not going to be much worse, not better?

[Lord Rennard]

My Lords, I think the problem would be rather less serious when we all knew when the election would be. The amendments strike very much at the principle of the Bill, which is why I am now addressing them. If anyone doubts how a Prime Minister can manipulate the present system for party advantage, they should think back to the events of September 2007, when a new Prime Minister was clearly planning an election for the autumn. Indeed, we now know that more than £1 million was spent on leaflets that sat with the Royal Mail waiting to be dispatched, when the Prime Minister suddenly realised that he might lose the election and called it off. Surely that is a great example of a Prime Minister abusing the system for party advantage.

Again, comparing this with football, would we consider it fair if Sir Alex Ferguson was allowed to call off a football match if he was worried about the form of his team and to rearrange the match for another day when it might perform better? Of course we would not. I see the noble Lord, Lord Triesman, who obviously regards football as a very serious matter, sitting opposite. I recall my own sporting hero Bill Shankly saying that football is not,

“a matter of life or death … it's more important than that”.

However, I would say that democracy is even more important. At the moment, in this period of great turbulence and concern about the rules of fair play, fair competition and fair enforcement of the law, we should take this small step towards making the rules of our democracy fairer. If a future Parliament wishes to take issue with the fixed-term principle or with any of the detail of how it operates, it should go through the same parliamentary processes that are currently necessary with this Bill.

On the principle of the Bill, let us consider finally that neither the Scottish Parliament nor the Welsh Assembly, the Northern Ireland Assembly or the European Parliament, the Greater London Assembly or a single one of the hundreds of local councils across the United Kingdom appear to have a problem with the fixed-term principle for elections. Neither should we in this unelected House.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, the other place has rightly rejected these amendments because they rest on a fundamental misconception that, merely by enacting legislation that is not time-limited, Parliament is seeking to bind its successors by passing permanent legislation. That proposition needs only to be stated to demonstrate its falsity. The Bill contains no entrenching provisions. It does not seek to restrict in any way the power of any subsequent Parliament to amend or repeal it. If the next or any future Parliament wishes to reconsider the provisions of this Bill when enacted it is free to do so, relying on the normal processes by which we consider and pass legislation. In 1885, Dicey defined the doctrine of parliamentary sovereignty on this point as the right,

“to make and unmake any law whatsoever”.

Nothing in this Bill as unamended infringes that principle.

These amendments, with their ungainly hybrid of a sunset provision and what might appropriately be called a Lazarus clause—rather than a sunrise clause—would kill off the effective provisions in the Act after the next general election automatically and without any parliamentary consideration whatever, contrary to the assertion of my noble friend Lord Cormack. They would then allow one or any number of future Parliaments, by simple resolution of both Houses, to reinstate the legislation for a single Parliament at any time and at any stage of the Parliament in question. That would not then be a fixed-term Parliaments Bill; it would be no more than an unedifying muddle with no clarity for the electorate—or for parliamentary candidates, for that matter—when they go to the polls.

The amendments offend against constitutional principle on three main grounds. It is notable that your Lordships’ Constitution Committee, led by the noble Baroness, Lady Jay, did not at any stage suggest a sunset and sunrise clause in the form proposed. The first offence against principle is that the amendment threatened to remove from Parliament the right to insist on full and detailed consideration of any proposal to repeal or re-enact the legislation by introducing a mechanism for re-enactment by resolution of both Houses. That re-enactment, as my noble and learned friend Lord Wallace of Tankerness pointed out in opening, would apply to the Schedule, which contains historic and important repeals, and would apparently be reversible by a resolution of both Houses.

Secondly, the amendments would increase the power of your Lordships' House beyond that generally permitted by the Parliament Acts because they would give this House the power to thwart the will of the other place, not merely to delay its implementation, if a resolution were passed by the House of Commons but denied passage by the House of Lords.

Thirdly, the amendments would offend against the Salisbury/Addison convention, if not in the letter certainly in the spirit. Both the Labour Party and the Liberal Democrats had commitments to fixed-term Parliaments in their manifestos, which were then agreed by the Conservatives in the coalition agreement. The settled view of the House of Commons, expressed on two occasions, is that this Bill should pass. Yet these amendments seek to time-limit it in a way that would remove its impact altogether. I say that because as the noble and learned Lord, Lord Falconer of Thoroton, and a number of other Lords pointed out at earlier stages of this Bill's passage, no legislation whatever is required for this Parliament to last until May 2015.

As always, the noble Lord, Lord Butler of Brockwell, put his argument seductively and persuasively, but the reality is that far from being asked to act in this House as guardian of the constitution by these amendments, we are in fact asked to challenge the primacy of the elected House and to usurp the revising and scrutinising role of this House by effectively emasculating this Bill.

[Lord Forsyth of Drumlean]

Perhaps the noble Lord could help me with a point. I may be wrong, but I believe that we still retain the power in this House to prevent the other place from extending the life of a Parliament. Is there not a parallel there?

[Lord Marks of Henley-on-Thames]

My Lords, I do not accept that there is a parallel. There is indeed the exception in the Parliament Act for a Bill to extend the life of Parliament, and that was the case with this Bill, with the power to extend by two months. That is not the case in respect of these amendments.

--- Later in debate ---

[Lord Wallace of Tankerness]

Prime Ministers have tried to divine the times to see when would be the best time to call an election. Indeed, in an earlier debate I quoted from the book of my noble friend Lord Lawson, The View from No. 11: Memoirs of a Tory Radical. He said about the then Prime Minister, now the noble Baroness, Lady Thatcher:

“Her view was that a Government should always wait until the final year of the quinquennium, but once there should go as soon as it is confident it will win”.

In other words, a partisan political judgment was clearly being made. As my noble friend reminded us, in September/October 2007, Mr Gordon Brown did a calculation in the third year of that Parliament as to whether or not it would be in his party’s best interests to go to the country. There is more to this. The power that the Prime Minister is giving up as a result of this Bill, as noted by the noble Lord, Lord Hennessey, at Second Reading, is important.

The noble Lord, Lord Butler, said that it was not much of a power, and then he said that no Prime Minister would have a straight face in trying to reverse the situation in the future. He is absolutely right. If a fixed-term Parliament became law, it would be very difficult for someone to come before the House and say that they wanted to revert to the position where the Prime Minister could choose the date of the election because of party advantage. They would get pretty short shrift—it would be difficult to do—but no one denies that, constitutionally, it is perfectly possible. It would be perfectly proper for them to seek to do it and to argue their case. However, my point is that they should do it by proper means through primary legislation and not in the way proposed by the amendment to the Motion.

[Lord Forsyth of Drumlean]

Why does my noble and learned friend use the phrase “because of party advantage”? What happens if a Prime Minister thinks it is the country’s advantage—as happened in 1974 when the Prime Minister felt that the issue of the power of the unions needed to be settled? Why take that away? Secondly, I struggled with the speech of my noble friend Lady Stowell when she said that having a fixed-term parliament would restore people’s trust in Parliament. How does giving people absolute job security for five years help to restore people’s trust? Can my noble and learned friend explain that to me?

[Lord Wallace of Tankerness]

My Lords, the answer is the same to both parts of my noble friend’s question. On the position in February 1974, which has been raised in the debate, if the Conservative Prime Minister of the day believed that it was necessary for an election, it is beggaring belief to suggest that the Labour Party would not also have agreed to an election and that the 75 per cent majority for a dissolution would not have been achieved. This does not mean absolute job security for five years because, if a Government lose confidence, the Bill contains within it mechanisms which can lead to an election. This can also happen if there is an agreement—as I believe would have been the case in March 1979. The then Prime Minister, Mr James Callaghan, could have said that he had lost a vote of confidence and that the following day he would table a Motion for dissolution, which I am sure would have been overwhelmingly carried by more than the majority required under the Bill. To suggest that he would have had to go scrabbling around trying to find a means of living on until October would not have been the case. There are mechanisms in the Bill to deal with that kind of situation.

I believe that the noble Lord, Lord Butler, sought to dismiss the suggestion that there could not be tensions between the two Chambers, although I do not think that he actually denied that that was a possibility. However, he did say that this House would not stand in the way of a newly elected Government who sought to establish a fixed-term Parliament. Part of the problem with the noble Lord’s answer, apart from suggesting that this House might simply rubber-stamp the Bill—heaven forbid—is that the amendment does not say that the resolution would be brought forward by a newly elected Government. It actually says that it would have to be brought forward at some time during the Parliament. Therefore it might be brought forward some years into the Parliament. At that point, who is to say that this House might not think that they were at it at the other end, bringing forward the resolution for partisan advantage? This House might take a different view about that in those circumstances. Therefore it does change the balance.

My noble friend Lord Forsyth asked whether this does not parallel the position in the Parliament Act when Parliament was extending the lifetime of a Parliament. The point is that the exception in Section 2 of the 1911 Act is to,

“a Bill containing any provision to extend the maximum duration of Parliament beyond five years”.

There is a crucial difference between a Bill that extends a Parliament beyond five years and a resolution as to whether there should be a fixed-term Parliament. In that respect, it is not proper that this House should be given a veto in these circumstances.

I have already indicated that this course can be revived in each succeeding Parliament. It is not just a case of seeing how the Parliament from 2010 to 2015 would go. It may not happen under the amendment here—there may not be a fixed-term from 2015 to whenever—but it could be revived in the following Parliament. It is another unsettling uncertainty about this Bill that it can switch on and off fundamentally important constitutional proceedings.

There has been considerable debate on this Bill. As I indicated, it was introduced a year ago this week. It had its Second Reading in another place in September last year, extra time was made available in Committee, and Report and Third Reading in the other place took place in January. In your Lordships’ House, the Bill was introduced in January, Second Reading took place in March, the Committee sat on three days in March, Report was heard on two days in May and Third Reading also took place in May. It has been very fully debated. I note that the noble Baroness, the chair of the Constitution Committee, referred to the committee’s report on the process of constitutional change, which I believe was published overnight. One of the conclusions was as follows:

“We stress the importance of proper parliamentary scrutiny of all bills”—

and this Bill has been subject to considerable parliamentary scrutiny for a Bill of only seven clauses and one schedule—

“but we do not recommend that any new parliamentary procedures such as super-majorities should apply to significant constitutional bills”.

I cannot think of any more noted significant new parliamentary procedure than the one that is promoted by this amendment. If the Constitution Committee is sceptical about using new parliamentary procedures with regard to even very sensitive and important constitutional Bills, this is one about which we certainly should be very sceptical. I do not believe the view of the noble Lord, Lord Butler, that we are doing a service to the constitution by saying that we do not have to go to the length of repealing. Repealing is what we do if we do not like legislation that was passed by previous Parliaments. If we depart from that principle on a matter of constitutional importance, I believe we should only do so with very great caution. I would urge your Lordships not to insist on the amendment because I do not believe that the case has been made for such a serious constitutional departure.

Fixed-term Parliaments Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 29th March 2011 Lords Chamber

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

My Lords, as the noble Lord, Lord Howarth, indicated in moving Amendment 34, and as was confirmed by several speakers, including the noble and learned Lord, Lord Falconer of Thoroton, its effect would be to trigger an early general election simply by a vote of no confidence in the Government. In other words, a simple majority in the House of Commons could lead to an immediate general election. This amendment places the power to decide whether and when there should be an early general election very much in the gift of the Executive.

I shook my head when the noble and learned Lord, Lord Falconer of Thoroton, seemed to suggest that this was some contrivance to keep together the coalition. First, I do not believe that to be the case, and, secondly, the Bill seeks a system of fixed-term Parliaments not just for this Parliament but into the future, when it may not be the Conservative Party or the Liberal Democrat party in office. It might be the Labour Party that is in office, or a combination of parties. Therefore, I wholly reject this idea that it is intended to be some quick fix. The point has been debated on a number of occasions; and the party opposite fought the last election on the policy of fixed-term Parliaments, although one sometimes would be surprised by that.

As the noble Baroness, Lady Jay of Paddington, said at Second Reading, there is a spectrum in terms of Parliaments: at one end you have complete flexibility, much as we have at the moment, as to when the Prime Minister can call an election; and at the other end you have complete rigidity. Many of the problems that have been raised would be resolved if you had complete rigidity and there were no safety valve, as I think the Constitution Committee of your Lordships’ House described it. I have not heard in any of our debates—either at Second Reading, in the other place or indeed in any of our Committee debates—anyone actually arguing for total rigidity. Therefore, there has to be a safety valve. In trying to devise these safety valves, we have produced one that reflects the two situations that could currently arise if there were a vote of no confidence. In addition to that, there is the safety valve of a Dissolution with a two-thirds majority. There was a view, certainly expressed around the time of the coalition agreement, that a vote of no confidence in the other place ought to have some consequence.

Perhaps I can just finish this point, which my noble friend Lord Norton of Louth raised: the problem with the amendment of the noble Lord, Lord Howarth, is that a Dissolution would allow only for an immediate general election. However, the dual convention that exists is that after a vote of no confidence in the Government, the Prime Minister may resign and a new Administration may be formed, which happened in 1924 when the Baldwin Government were defeated and a Labour Government were then established, as was referred to by the noble and learned Lord, Lord Falconer of Thoroton. Or, indeed, there could be a Dissolution, and we are saying that there would be a Dissolution if it were not possible to form another Government. We will come to the timing, but there ought at least to be some time to allow another Government to be formed.

[Lord Forsyth of Drumlean]

I am intrigued by the analogy that the Minister uses in respect of requiring a larger majority than a simple one as a safety valve. Is that not a bit like taking a boiler, setting the pressure 30 per cent higher and saying that is making the thing safer? Surely, a safety valve implies a lower trigger, not a higher trigger.

[Lord Wallace of Tankerness]

I was using the terminology used by your Lordships’ Constitution Committee. It is not one I would necessarily disagree with, but what was meant by the safety valve—and the chair of that committee is here—was that, rather than be completely locked into a rigid fixed-term Parliament, with no way out if Parliament was unable to continue, there be mechanisms to trigger an election. One of them is where most sides agree that there should be an election and they constitute the two-thirds majority that would lead to an immediate Dissolution. The other mechanism by which an election would be called is where there has been a vote of no confidence in the Government and, within a period of 14 days, no other Government have been able to command the confidence of the House of Commons. It is fair to say—

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[Lord Forsyth of Drumlean]

Surely, given how the noble and learned Lord has explained it, the safety is being provided for the Executive in order to stay in office, which contradicts the whole thrust of this Government’s position that this Bill is about handing more power back to Parliament. The safety valve is being provided for the Executive.

[Lord Wallace of Tankerness]

My Lords, maybe “safety valve” leads to a misleading impression of what is meant. It is not a safety valve for the Executive; it is a safety valve for Parliament. If Parliament recognises that it is no longer able to function, there is one mechanism for finding a way out of that breakdown, and that is by calling an election. That is certainly not to the Executive’s advantage. Alternatively, where a Government have lost the confidence of the House of Commons and no other Government can be established, again, there is a mechanism for an election to be called. I do not believe that in any way helps the Executive.

Fixed-term Parliaments Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Falconer of Thoroton]

It is possible to see very clearly what the noble Lord, Lord Norton of Louth, is trying to achieve. The current position is that, on the defeat of the Government in a vote of no confidence, the Prime Minister has the choice either of resigning, in which case the House of Commons has the opportunity to form a new Government, or, alternatively, of advising the Queen to dissolve Parliament and have a general election. The choice is either have an election or try to produce a new Government. As I understand it, the noble Lord, Lord Norton of Louth, is trying, in effect, to replicate that with his proposals.

The amendment is saying that once the Government have lost the vote of confidence, instead of the 14-day period, the second provision required for an immediate general election is that the Prime Minster asks for a Dissolution. The amendment then adds in a bit that says that, where the Prime Minister resigns, there is 28 days to form a new Government. The difficulty is that that is too rigid. Let us assume that in March 1979 the Prime Minister in theory wanted to stay on, although that was not his position at the time. His right course at that point would have been to resign. He would then have had 28 days, in effect, not 14 days, because, remember, the vote was 311 to 310. If you were a Prime Minister who wanted to stay on, you would resign then offer various junior ministries at the widget shop to a variety of people and then get your 311.

The amendment of the noble Lord, Lord Norton of Louth, would provide for an early general election if,

“on a specified day, the Speaker has been notified that the Prime Minister has tendered to Her Majesty his or her resignation, and … a period of 28 days has passed after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.”

This may not be what the noble Lord, Lord Norton of Louth, intends, but the wording leads to the possibility that you could end up with a Prime Minister who has been defeated but does not want to go, so he indicates that he is resigning. If the other side fail to form a Government, he could then come back, so the bidding war that has been going on for 28 days is the one that would otherwise have gone on in the 14 days.

[Lord Forsyth of Drumlean]

I merely seek some advice from the noble and learned Lord. He said that the Prime Minister would have the choice of either resigning or going to the country. Is the constitutional position not actually that it resides with the monarch whether to grant a Dissolution? There might be circumstances where a Prime Minister wished to go the country but there was someone else who was capable of forming a new Administration, and a Dissolution might not be granted.

[Lord Falconer of Thoroton]

The modern trend in constitutionality is that you do not wish the monarch to make any decision that could be controversial. In those circumstances, you would normally expect the monarch to act upon the advice of his or her Prime Minister. For example, in the last election, at no stage did the monarch indicate who should seek to form a Government; she left it to the political parties to come forward. In one sense the noble Lord is right but in all practical terms the element of discretion for the monarch has effectively gone. That is the way that political parties now operate when it comes to the question of who should try to form a Government.

The noble Lord, Lord Norton of Louth, is shaking his head, which worries me deeply. The wording of his amendment seems to me to allow for a resignation because the choice it gives the Prime Minister is Dissolution or resignation. It does not necessarily mean that at the end of the 28-day period he or she does not re-emerge as the Prime Minister, which could be his or her intention right from the outset.

Although I am much more beside the noble Lord, Lord Norton of Louth, than I am beside the Government, neither solution is wholly satisfactory. That is indicative of the inability of a Bill to reflect the ability of the current arrangements where there is a vote of no confidence and to reflect the differing political situations that may have emerged. It is very difficult, for example, to have envisaged the situations in 1940, 1924, 1974, 1979 or 2010, but our current constitution is well able to deal with them. It is possible to accept the principle that there should normally be a fixed-term but where there is a vote of no confidence then there may need to be a Dissolution and a general election. Why do we not have a Bill that simply says that? Even the finest constitutional brain in Britain, the noble Lord, Lord Norton of Louth, seems to me when trying to codify it to have produced a situation that even he would not necessarily regard as particularly satisfactory.

In a genuine spirit of consensus I ask the noble and learned Lord, who is much admired for his openness and conciliatoriness, to think about why one does not just have a very simple clause that says that, where there is a vote of no confidence in the Government, the Prime Minister may ask for a Dissolution—full stop and leave it at that. It could then be read in the context of the constitutional conventions governing our country. You would have the safety valve. We would not need to contort ourselves into situations where we are trying to see what history will bring in the future—if that is not a contradiction in terms—which we are not going to be able to manage.

Let us be wide open—like the constitution—and recognise that a vote of no confidence should probably, but not invariably, lead to a general election. Let us have a Bill that reflects that.

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[Lord Falconer of Thoroton]

My Lords, this is another part of the conundrum that we have debated pretty fully already. Perhaps I may indicate the particular problem that this amendment deals with. My inclination on how one deals with a vote of no confidence is that it should generally lead to a general election. My complaint about the Bill is that it is drafted too rigidly, reducing flexibility, and that it encourages a situation where once a vote of no confidence is lost, the norm is not a general election but a process of haggling. I believe that is quite contrary to the purpose described by honourable gentleman the Deputy Prime Minister to the committee chaired by the noble Baroness, Lady Jay. He said that it,

“collectively introduces the mechanisms by which people can exercise greater control over politicians”,

as set out in paragraph 15 of the committee’s report. It obviously does precisely the opposite if what happens when you lose a vote of confidence is that there is then a haggle and a new Government are produced.

I recognise that there are some circumstances where you do not want to have a new Government or an election straightaway. I have already mentioned in particular the general election of January 1924 and Mr Baldwin going to the House with a Queen’s Speech that was then effectively voted down by Parliament. I do not think the public would have wanted a general election at that point. They would have wanted a majority Government to be re-formed.

Amendment 41 says that the 14-day period applies only where a Government have not yet obtained the confidence of the House of Commons. However, I say that in the context of strongly objecting as a matter of principle to the idea that the norm after a vote of no confidence is to try to re-form a Government. That should generally take place only where the Government have not yet obtained the confidence of the House of Commons, or in the Narvik-type situation. My amendment does not provide for the Narvik-type situation, although it should. I should be interested to hear what thought the Government have given to the extent to which, if you have a defeat in the House of Commons on a confidence issue, this promotes people’s belief that they can “exercise greater control” over their politicians if a new Government are formed from within the House of Commons rather than by being selected by the people. Does that not have precisely the opposite effect to that which the Deputy Prime Minister wanted? Have the Government given thought to the circumstances in which they would prefer there to be an election rather than a new Government being formed? Are they not worried that by building in 14 days in every case they are encouraging the confidence-sapping haggle? I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I wish to speak briefly on this interesting amendment. I go back to the point raised earlier when comparisons were raised with the Scottish Parliament. The Scottish Parliament has been mentioned in defence of the Bill, but it seems to me that the Scottish Parliament is a completely different institution. First, it is elected by PR and therefore its procedures are designed to deal with that situation, but it is not a body which votes means of supply. The House of Commons raises means of supply. An Executive who are no longer able to command the support of the House of Commons are no longer able to operate the Government of the country because they are no longer able to raise the taxes which are required. That is the fundamental constitutional issue here. When a Government no longer have the support of the House of Commons, they are no longer able to carry on and it is necessary to go back to the country to get the authority to vote means of supply. These comparisons with the Welsh Assembly and the Scottish Parliament are totally erroneous for that reason. Therefore, the idea that when the Executive no longer command the support of the House of Commons to levy taxes on the people you should have 14 days to do a deal so that you can restore that authority is deeply erroneous. The noble and learned Lord is right in what he says in proposing this amendment.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord for his explanation of the amendment as I found its purpose somewhat difficult to discern. He has indicated that it seeks to address the situation, perhaps immediately after an election, where no Government have been formed. My difficulty is that, if the amendment were included in the Bill, a situation such as we are discussing might arise later in a Parliament when a Government had been formed. The amendment states:

“An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election”.

That could almost exclude an early general election being called if, the Government having been formed since the last general election, there was a vote of no confidence and no other Government were then formed. I suspect that is a technical consequence of the amendment that the noble and learned Lord did not intend. As I understand it—

[Lord Wallace of Tankerness]

I was genuinely somewhat puzzled about what the point was. However, I understand that the noble and learned Lord is trying to address a certain situation. I can see the distinction between an incoming Government following an election who have never faced the House of Commons on a Queen’s Speech and one which may have done so and lost as they are a continuing Government. He may wish to consider whether a general election should immediately ensue if an incoming Government who are not a continuing Government lose a vote on their first Queen’s Speech. I give a hypothetical example. If a minority Conservative Government had been formed after May last year, they would have been the new Government. A Government would have been formed but they may not have carried the day on a Queen’s Speech. I rather suspect that the circumstances which the noble and learned Lord sought to address in his amendment might be similar to that example. I suggest that another election would not necessarily be triggered immediately by that scenario.

As I understand it, the noble and learned Lord is saying that there are circumstances where there is the possibility of another Government being established, as, indeed, happened in 1924. He thinks that the presumption would be in favour of an early election, triggered by a vote of no confidence. However, it is a rebuttable presumption. The noble and learned Lord is trying to identify the circumstances in which that presumption might be rebutted. One such circumstance could well be where we have an election, there is no overall majority and therefore there ought to be an opportunity, if the Government lose a vote on the Queen’s Speech, for another one to be formed. I understand what he is saying but the difficulty we have in these situations is with the general assumption that an election would take place. We need to make the position certain and not leave it completely vague and imprecise. It is one of the challenges which we have sought to address in the Bill. It may seem somewhat cumbersome at times with the Speaker’s certificate mechanism but the purpose behind that is to try to ensure that there is certainty and that if situations arise which will lead to an election it is not a question of wondering whether it will or will not take place. We need to establish that certain circumstances would trigger elections while others would not.

I entirely agree with my noble friend Lord Forsyth that there are important distinctions to be made between the Scottish Parliament, the Welsh Assembly and the Westminster Parliament. I think that in an earlier intervention I indicated that you can only take the comparisons so far. If a Government have not commanded the support of the other place, have lost a vote of no confidence and no other Government have been formed who hold the confidence of the other place, an election would follow. If, however, a Government command the confidence of the other place, they would have the wherewithal to raise supply. It is very easy to look at these issues through the prism of a two-party political history, but as my noble friend Lord Newton said in one of our earlier debates, we cannot take it for granted that the simple two-party situation that has prevailed for so long will always do so. We have seen that the first past the post system could not be relied upon to produce a clear-cut majority Government in May last year. We may well find ourselves in those circumstances again. The circumstances which apply in the Scottish Parliament may well be more appropriate for a Parliament that does not regularly have Governments with an outright majority. However, I accept that there is an important distinction between a Parliament elected by proportional representation and one which is not. I do not even claim that AV is a proportional system but it is one which nevertheless could give rise to a Parliament in which no one party regularly has a majority.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend but my point, which I am delighted that he acknowledges, was that the Scottish Parliament is different because it does not vote means of supply. The argument has been advanced that these provisions are appropriate for the House of Commons. Indeed, it has been thrown back in the face of the Labour Party that it introduced these provisions for the Scottish Parliament. The Scottish Parliament was deliberately designed in the electoral system as an institution in which no party would be able to get an overall majority, and my noble and learned friend played a part in that. Therefore, to import provisions relating to a Chamber which is completely different from the House of Commons and argue that they are appropriate is an error. That is the point I was making.

--- Later in debate ---

[Lord Williamson of Horton]

My Lords, we have heard outstanding speeches from two former Speakers of the House of Commons. I must say that I am a little timid about getting up to say a word when I am the only non-former-Speaker on these two Benches. The speeches from my noble friends Lady Boothroyd and Lord Martin have fully covered the key elements about the defence of Parliament, which is a vital element underlying this amendment, in my view.

Let us imagine ourselves in the circumstances that would be covered by this part of the Bill: that is, that the Government have lost a vote of confidence, the 14 days have gone by and this certificate is called for. Let us also imagine the position of the British public in a situation in which they read in the papers, “Government defeated”, then, “14-day period expires: it’s an election”, and the next day, “Judicial challenge: no election”. This is a critical point from the point of view of operating confidence in the system. Therefore, the amendment in the name of the noble Lord, Lord Howarth, is good, and if it cannot be done in that way we need to strengthen the way of avoiding in this Bill any form of judicial intervention in the system.

[Lord Forsyth of Drumlean]

My Lords, the speeches that we have heard from the former Speakers speak very eloquently for themselves. I congratulate the noble Lord, Lord Howarth, on his amendment. I do not know whether it deals with the issue but two points strike me. Like the noble Baroness, Lady Boothroyd, I could not be here at Second Reading. One thing that concerns me enormously is that the advice of the Clerk of the House can be brushed aside in what, quite frankly, is an almost arrogant way.

Our institutions are very important, although things might have changed. I never really had a reputation in the other place as someone who was easily cowed or very respectful but I respected the Clerk of the House, the institution of the House and the Speaker’s office. For a variety of reasons, the House and the Speaker’s office have come under considerable attack, which is a great source of anxiety. In responding to this amendment, I hope that my noble friend will give us some assurance that he will look at this again because these are very serious considerations. Ministers might believe that the risk is limited but I am with the Clerk of the House and I would not take any risks with this institution. It is a very precious baby and it seems to me quite extraordinary that we have reached this pass.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I rise with some diffidence in view of the speeches from the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin, and others that we have heard. First, I think we all believe that the notion that the courts should be able to interfere with the Speaker’s certificate when this Bill is enacted, if it is enacted in its present form or in something similar to it, is one that we would abhor. No one is suggesting that that is a desirable or acceptable outcome in any way.

In moving his amendment, the noble Lord, Lord Howarth, discussed the evidence before the Constitution Committee in some detail. I do not propose to rehearse that evidence. However, I would point out that Professor Bradley, an old friend with whom I would be hesitant to disagree, expressed the conclusion that the judiciary would surely accept that this was an area for political judgment which the courts were not qualified to make. That was the conclusion of your Lordships’ Constitution Committee.

This is not simply a matter of the evidence of Mr Harper, which has been dismissed in quite strong terms by others who have spoken. In the light of the careful note of the Clerk of the House of Commons, the Constitution Committee spent a great deal of time analysing all the evidence on this point. The conclusion to which it came was that the risk of judicial interference was very small. It went further in concluding that it was so small that it was not sufficient to warrant the rejection of Clause 2. The assessment of what risk might or might not be acceptable is a difficult area. I align myself with the view expressed by the majority of the legal evidence to the effect that the chances of interference by the courts would be so small as to be insignificant.

That is not to say that we can ever stop anyone bringing a misguided application. However, as Professor Bradley also pointed out, misguided applications can be dealt with quickly and given short shrift. That is what I believe and would expect to happen. The result is that in theory an initial challenge could be brought to the Speaker’s certificate. However, it is the judgment of the Constitution Committee, which I invite your Lordships’ House to accept as well founded, that that challenge would not lead anywhere—a judgment that was made in the face of, and on consideration of, the evidence of the Clerk of the House of Commons, to which a great deal of respect was given.

[Lord Forsyth of Drumlean]

My noble friend is obviously an expert in these matters. As the argument is about the degree of risk, can he explain why it is necessary to take the risk at all?

[Lord Marks of Henley-on-Thames]

My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability.

The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that,

“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

That is a general statement of the principle of parliamentary privilege.

The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words “conclusive for all purposes” and,

“shall not be questioned in any court of law”.

The phrase is “shall not”, not “ought not”. I suggest that, for a modern approach to the construction of statutes, the phrase “shall not” is much more useful than “ought not”. The House of Lords Act 1999 simply uses the provision that the certificate shall be “conclusive”. In this Bill we have the words, “conclusive for all purposes”.

Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of “ought not”, those phrases “shall be” and “shall not be”—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.

--- Later in debate ---

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Howarth, for the amendment, which I think, by any account, has produced a very informed, worthwhile and important debate. At Second Reading, my noble friend Lord Cormack expressed the hope that we would be able to look at privilege in Committee. Our minds have been very much focused by the amendment of the noble Lord, Lord Howarth, and he has done a service to the Committee by tabling it. I thank noble Lords who have taken part in the debate, not least the two former distinguished Speakers of the other place, the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, who bring to this debate many years of experience not only as Speakers but also as Deputy Speakers. They have between them many years of occupancy of the Chair, and any Government would be wise to have regard to what they have said. As I said in our earlier debate, this is a part of the Bill where I think that there is some common ground on what we are trying to achieve; that is, to ensure that we do not have fixed-term Parliaments that are absolutely fixed and, if there is to be some means of breaking out of a deadlock, to try to identify how best that is to be done. The comments that the former Speakers made, specifically with regard to the Speaker’s certificate, form part of the consideration that we want to give in trying to get it right.

A number of distinctive points arose out of the amendment and the debate. Perhaps I may be able to separate them out. The noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, spoke about the Speaker being brought into political controversy and how that related to how motions of confidence were defined. There will be further opportunity to discuss that later in Committee when we come to the amendment of my noble friend Lord Cormack. The comments that have been made will relate to that as well.

The substance of the amendment of the noble Lord, Lord Howarth, related to parliamentary privilege and the fact that, as my noble friend Lord Marks indicated and was confirmed by other speakers, all of us would be in agreement in abhorring a position where the courts should be able to interfere with the certificate if that is what emerges from the Bill. The noble Lord, Lord Howarth, sought to add the words which, as he rightly said, ring down through many centuries and which come from Article 9 of the Bill of Rights. That states that,

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

I think that it is widely agreed that that article is of great constitutional importance and a significant plank of what we describe as a doctrine of parliamentary privilege. One of the most important aspects of privilege is that it is for Parliament to judge the lawfulness of its own proceedings, not a court or other outside body. The noble Lord, Lord Howarth, said that he wanted to reinforce that principle by inserting those words. I again confirm that the Government do not consider it appropriate for the courts or other outside bodies to scrutinise how the Speaker would exercise his or her functions under the Bill.

With specific regard to the words of the amendment, I echo some of the comments made by my noble friend Lord Marks. We do not believe it necessary to include those words to achieve the aim, as the words have their own significant pedigree. They were based on the Parliament Act 1911, where Speaker’s certificates are equally conclusive for all purposes. It follows the language used in the House of Lords Act 1999, under which the certificate of the Clerk of the Parliaments is conclusive. The effect of those words in the Bill and those Acts is to make clear that parliamentary privilege applies to the matters being certified. Accordingly, we do not believe it necessary to make further provision along the lines suggested. As ever, making further provision may cast doubt on earlier enactments which do not include those words. I do not think that any of us want to go there.

The noble Baroness, Lady Boothroyd, asked what purpose was then served by having a conclusive certificate, when we claim that the matter is already one of privilege. Again, I confirm that it is true that the subject matter of a certificate relating so closely to proceedings in Parliament would mean that privilege alone would be sufficient to prevent the courts considering it. However, making a certificate conclusive reinforces that point and is intended to enhance that certainty.

I cannot accept the assertion made by my noble friend Lord Forsyth that the Government just brushed aside the position set out by the Clerk of the Parliaments. Clearly, when the Clerk of the Parliaments makes a submission such as that, it is given considerable care and attention. My noble friend Lord Marks pointed out that the Constitution Committee of your Lordships' House received considerable evidence on that from a number of people who have great standing as academics in constitutional law. Indeed, it referred in its report to,

“the weight of the evidence we received being against the view that a Speaker’s certificate would be justiciable … The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

[Lord Forsyth of Drumlean]

I accept my noble and learned friend's rebuke. I come from a tradition which thinks that the Clerk of the House is normally the person best qualified to advise on these matters. The way that the Minister dealt with that did not show the kind of respect that ought to be given. I hear what he says. Perhaps I am a bit daft and am missing something here, but could he explain why it is necessary to have the certification process at all?

[Lord Wallace of Tankerness]

It is necessary because, as the Bill is constructed, there are trigger mechanisms to cause an election. There has to be certainty as to what causes that election so that it has legitimacy. One of them is to certify that two-thirds voted to trigger a Dissolution. In the context of votes of no confidence, if we seek to take power away from the Executive and the Prime Minister to determine what would be a vote of no confidence, it would be self-defeating then to say that the Prime Minister himself or herself could determine what is a vote of no confidence. Therefore, we give it to the person who is recognised as being independent to certify that there has been a vote of no confidence in the Government and that 14 days have elapsed. That is factual: that there has been a vote of no confidence and that 14 days have elapsed without any vote of confidence in a new Government having been passed.

There is a distinction between a certificate that certifies a fact—hopefully, that could not bring the Speaker into any kind of controversy—and the Speaker being asked to certify or indicate what he or she would consider to be a vote of no confidence. That brings us into the territory of earlier amendments, and those to be spoken to later by the noble Lord, Lord Cormack.

[Lord Forsyth of Drumlean]

Perhaps I am being stupid, but if a motion in the House of Commons states, “This House has no confidence in Her Majesty's Government”, and it is passed, why do we need a certificate to say that it has been passed? The 14-day provision is open for debate, but if the Bill says that Dissolution should happen 14 days after a motion has been passed, surely it is just a matter of counting the votes. Am I missing something?

[Lord Wallace of Tankerness]

I say again, it is not just that it is passed, it is that it is passed and that there has been no further vote of confidence in any Government. That is done for the purpose of ensuring legal certainty: that the election has legitimacy. It is quite straightforward why that is being done: that there is certainty. Otherwise, there will be a fixed-term Parliament where the law will say that the next election should be on whatever date and that to have an election not on that date, you have to be certain that the criteria laid down by law have been met. We take the view that a certificate from the Speaker makes certain beyond challenge that the criteria for having an election not on the date which would otherwise be the case have been met.

Fixed-term Parliaments Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, it is not necessarily paranoia if you think that someone is putting forward such an argument, but I will leave it to noble Lords to judge whether they could hear the noble and learned Lord making a similar argument.

I accept that the issue links into the debates we have had, and will have later, on whether we could find more objective criteria for determining what constitutes a vote of no confidence. I was not quite sure whether the argument made by my noble friend Lord Norton was that, as things stand at the moment, the Speaker has a greater need to consult in the absence of such a definition than in the context of a money Bill. Even looking at the provisions in the 1911 Act as to what constitutes a money Bill, it may be a statutory definition but it is not transparent, which I am sure that the noble Lord, Lord Martin, who had to deal with these things, will recognise.

I would not wish to try to persuade the House—nor is it the case—that this is the most important provision in the Bill. Nevertheless, it is very similar to a provision that has existed on the statute book and has been in force for 100 years. It is a tried and tested procedure. That also applies to the requirement to consult “so far as practicable”. Clearly, if someone was ill or abroad, that might not necessarily be practicable. The noble Lord, Lord Howarth, was right to say that the requirement is for consultation, not to seek agreement. As I have said, they are tried and tested measures, which we thought were appropriate in a context where important constitutional consequences would flow from a decision.

On freedom of information, obviously one issue would be what form the consultation took. If the consultation was verbal, there would be nothing for a freedom of information request to latch on to. I would have to remind myself what the possible grounds of exemption are but, given that advice to Ministers can be a matter for exemption, perhaps that would also apply to advice given to a Speaker. However, without looking in detail at the terms of the Freedom of Information Act, I cannot answer that question directly, although I can say that, if the consultation was not written down, I am not quite sure what would be caught. The noble and learned Lord asked me to write to him on this and I will seek to do so.

Given that we are trying to embrace a tried-and- tested procedure, I would invite my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

Does my noble and learned friend not see the irony in arguing the case for this on the basis that it is a tried-and-tested procedure while turning upside down the whole tried-and-tested procedure of how we decide when we are going to have a general election?

[Lord Wallace of Tankerness]

I see the irony. I still think that it is right.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I was rather puzzled by the amendment, for the same reason the noble Lord, Lord Grocott, indicated: that this has never been an issue in the past. I have been thinking about what is driving this stuff. It appears to be the notion that the Prime Minister has some enormous advantage in being able to choose the date of the election and, if this amendment were agreed, its timing. For those Prime Ministers whom I have known and who have had to decide these things, it is an agonising decision. Have too long a campaign and you might lose because the public get bored; have too short a campaign and you might not get across your arguments or there may be an event which you are unable to control and which will affect voters’ views—for example, some trade figures. That there is some great advantage in the Prime Minister deciding the date seems to be what is driving this stuff. It is fundamentally misguided and takes away the flexibility which you need in the system to apply common sense.

Perhaps I may make one slightly partisan point. The Parliamentary Voting System and Constituencies Bill recently passed through this House. The Government moved heaven and earth to make sure that that Bill went through the House so that the referendum could take place on the same day as the Scottish and local government elections, thereby ensuring the turnout. Perhaps I may say to my noble friends in the Liberal Democrat party that it is inconsistent for them to argue, on the one issue, that the Executive’s power and patronage can be used to try to achieve a particular result, and then, on another issue such as this, to say, “Well, we can’t possibly have the Prime Minister deciding the timing of a general election campaign”. It is a power which Prime Ministers have sometimes tried to use to advantage in the past and it has turned out to be something of a curse.

The fundamental thinking behind the amendment, that there is some great defect in our system because of prime ministerial ability to choose the date and timing of a general election, is misguided. I agree with the noble Lord, Lord Grocott, that we end up trying to create a box-ticking culture for the conduct of our public affairs. It will come to grief, as we have seen in many other areas of our public life where this philosophy has been applied.

[Lord Falconer of Thoroton]

I am slightly confused by the amendment. Its effect would be that, depending on the date of the certificate, you could be compelled to have a general election between, for example, 18 December and 16 January, which would seem unwise, or from 1 August to 29 August. I have no experience of fighting elections but, speaking as a member of the electorate, I imagine that I would not particularly want a general election campaign going on between those dates. The Government cannot avoid that conclusion on the basis of the rigidity in the amendment of the noble Lord, Lord Marks of Henley-on-Thames. The Government or the noble Lord may indicate that something is wrong with the current system. Have there been Prime Ministers who, having lost a vote of confidence, then held on for a year or two avoiding having a general election? This seems to be trying to solve a problem that probably does not exist.

I wait to hear the noble and learned Lord's view on this, because there may be some problem that we have not spotted. For the life of me, I cannot see it. This is a criticism not of the Government but of the amendment, but again we are struggling with a series of problems which do not exist. As the noble Lord, Lord Forsyth, says: for what? To take away from the Prime Minister the power that the noble and learned Lord acknowledged that he could probably have by the back door: the ability to procure a vote of no confidence in himself whenever he wanted to go to the country anyway.

--- Later in debate ---

[Lord Cormack]

I am deeply grateful both for the correction and for the explicit example. Of course, we all know, too, that the Ulster Unionists voted both ways, because they did not want to be seen either to have propped up an unpopular Government or to have defeated a Government who had given concessions in Northern Ireland. All these things can happen.

A clear-cut defeat followed by the dignified recognition of that defeat and taking the case to the country is how we do it in the United Kingdom and it is how we should continue to do it.

In proposed new subsections (3) and (4) in this amendment, I say:

“If the provisions of subsection (2) are met, the Speaker of the House of Commons will issue a certificate to certify this”.

This is not a discretionary thing; it is on a par with the money resolutions. I took clerkly advice when I was drafting this amendment and was assured that this provision would in no sense place the Speaker in an invidious or difficult position. The Speaker of the day would have no choice other than to sign the piece of paper. The noble Lord, Lord Howarth, has an amendment to delete subsections (3) and (4) in my amendment, but while I admire his vigilance I do not think that the deletion is necessary, because the Speaker is not being put into a difficult or invidious position.

[Lord Forsyth of Drumlean]

Can my noble friend help me if I ask the same question that I asked of my noble friend on the Front Bench? Why is the Speaker’s certificate necessary?

[Lord Cormack]

I was advised by the clerks that this would be the tidy way of doing it—the certificate is issued, it is automatic and it would be expected. However, I am not desperately wedded to this proposal. What is truly important is the first part of the proposed new clause, subsections (1) and (2). I was merely saying that proposed new subsections (3) and (4) do not place the Speaker in the same invidious position that the provisions that we were debating earlier today do. I hope that your Lordships’ House will feel that this clause or something very similar—because, as I said, it is not perfect—would be a vast improvement on what we have, which is complicated, convoluted and thoroughly unnecessary.

If we are to have a Fixed-term Parliaments Bill, it is the duty of this House to try to ensure that it is as compatible with our constitutional arrangements in this country as it can be. Many of us feel that all that was really needed was a declaration of intent to serve until May 2015. I, for one, applaud that declaration of intent. However, if it is to be given legislative form, for whatever reason, let it be a legislative form that is both comprehensive and comprehensible; let it be a legislative form that people can understand in both Houses and in the country beyond. Do not let us connive in any arrangements that would allow a discredited Government to indulge in endless days of horse-trading to try to sustain themselves in office. Do not let us give to those who might practise the dark arts of sinister persuasion a power to redress a vote that the House of Commons has already passed. I beg to move.



Amendment 51 (to Amendment 50)

--- Later in debate ---

[Lord Forsyth of Drumlean]

Perhaps I have this wrong, but my understanding of the present position is that the Government may be defeated on a serious matter such as whether to go to war and may take the view that it is not a confidence motion. However, in such circumstances, the leader of the Opposition would table a confidence motion, which takes precedence over all business. If there is an argument about whether the issue is a confidence motion, it is up to the Opposition to bring forward a confidence motion on which there will be a vote, so why is this such a big problem?

[Lord Howarth of Newport]

I would very much like to be comforted by the noble Lord’s suggestion, but we are in an evolving state of affairs. I am not as confident as he is that the traditional formulations and conventions will necessarily be the only ones that the public will find acceptable in the future.

We have to think of what the role of the Speaker will be when it is contentious whether a particular vote may have this status. Let us imagine what would have happened if the Speaker had been required to issue a certificate as to whether, on 18 March 2003, the House of Commons had passed a motion of no confidence in Mr Blair’s Government, had that Government been defeated in the vote on the Iraq war. Mr Blair said later that he regarded that vote as a confidence vote, and that had he been defeated he would have resigned. How could the Speaker have certified in advance in those circumstances when the Prime Minister himself had not made it clear in advance that that was to be a confidence motion?

However, that is what the Minister, Mr Harper, confidently expects would happen. He said to the Constitution Committee:

“Our view is that the Speaker would make it very clear before such a vote took place whether it was a vote on which he would issue his certificate”.

--- Later in debate ---

I think my noble friend has produced a new clause that provides the basis for determining what constitutes a Motion of no confidence. I believe it is essential that we should include such a provision in the Bill. It injects the necessary clarity and avoids miring the Speaker in controversy. If my noble friend the Minister is not able to accept the new clause, it is incumbent on him to come up with an alternative that improves on it. Given a choice between my noble friend’s new clause and the Bill as it stands, it is a case of no contest. This amendment, or one close to it, is essential.

[Lord Forsyth of Drumlean]

My Lords, the hour is late so I have no wish to detain the House. First, I would like to congratulate my noble friend on this amendment, which I think is a great improvement on Clause 2. I have been reading Clause 2 again and it is like some kind of pre-nuptial agreement. If you look at the reasons behind it, clearly this is a clause put together by two parties who are not quite sure whether this marriage is going to work out. The reason we have the provision of more than a simple majority is clearly because the Liberal partners in the coalition were worried about the Prime Minister cutting and running and calling an early election when they were very unpopular. You can see how the architecture of this Bill has been created and it has nothing whatever to do with the proper functioning of the House of Commons.

Clause 2 is completely unnecessary, but I respect my noble friend’s very constructive attempt to try to go with the grain and not be too confrontational, as perhaps I am being now, about this clause. I also agree with the noble Lord, Lord Howarth, that my preference would be to leave out the proposed new subsections (3) and (4) for the reason that, as the noble Lord, Lord Martin, has so eloquently explained, we should not be putting the Speaker in a position where he is involved in this.

Throughout the evening my noble and learned friend Lord Wallace has been very patient and very good and very constructive. I have asked him on several occasions why we need to have the certification process at all. It goes back to the pre-nuptial agreement. Normally, if the Prime Minister wants to call an election, people accept that, but people have thought we cannot have the Prime Minister doing it so we have to have somebody else. You can see them sitting in a room thinking, “Well, who could we have? Well, we will have the Speaker”. It has not been thought through. It is not necessary. We do not need the Speaker to sign a certificate saying that a Motion of no confidence has been passed.

Where I take slight issue—I support my noble friend’s amendment, but it is not perfect—is with the list of what constitutes a Motion of no confidence. As has been pointed out by the noble Lord, Lord Howarth of Newport, I do not think that you can have a Bill,

“defined by the Prime Minister of the day as being essential to his or her administration continuing in office”.

My noble friend Lord Tyler is absolutely right about that. If a Bill that was central to the Government’s programme, a flagship Bill, was defeated in the House of Commons, any leader of the Opposition worth his salt would the very next day table a no-confidence Motion, which would take precedence over all other parliamentary business under the rules and conventions of the House of Commons. Presumably, Members would either vote for or against that Motion. I do not see the need for this list.

In my noble friend’s amendment, I like the bit that says, “Leave out Clause 2” and I like the bit that says:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”,

but then I think, “Why do we need any of the rest?”. I would be very grateful if, during the course of these proceedings, we could answer these very simple questions. You do not need the Speaker to sign a certificate and, if the House of Commons can pass a Motion of no confidence, that Motion does not need to be moved by the leader of the Opposition. But if the House of Commons no longer has confidence in the Government, there has to be a general election. That is a tried and tested thing that has continued for years.

I agree, too, with those who have said, “What is the point of this Bill?” If a Prime Minister wants to have a fixed-term Parliament, he can say, “I am not going to call a general election till the fifth anniversary of the previous election, or the last possible moment”—and there we have it. Normal conventions will apply.

We have this Bill, but it is a muddle, and if we are going to proceed with it we need something like my noble friend’s amendment, which leaves out Clause 2. If we could do away with the list or reduce its scope—perhaps continuing to include the Finance Bill but certainly taking away the requirement on the Speaker to issue a certificate—we would end up back where we started. The great advantage to where we started is that we know that it has worked and it has worked for centuries.

[Lord Norton of Louth]

Before my noble friend sits down, I shall answer his question about the list. The reason why we need the list is because it has been our understanding about what a vote of confidence is for about a century. He is now being extremely radical in trying to limit the list in saying that only in certain circumstances would there be an explicit vote of no confidence. That is quite a constitutionally radical proposal.

[Lord Forsyth of Drumlean]

I stand corrected by my noble friend, who is very expert on these matters. However, a Motion that says, “This House has no confidence in Her Majesty's Government” is absolutely clear, and it would trigger an election. In the context of this Bill, with a fixed-term Parliament, it is going to change. I accept that, because the nature of the Parliament will have changed. But I would much prefer something clear-cut, simple and explicit. If you want to bring down the Government, you have to pass a Motion of no confidence. That is absolutely clear. If such a motion is passed, the Prime Minister has to go to the country.

I was going to sit down, but my noble friend has set me off again. To turn to a point made by the noble Lord, Lord Tyler, the idea that a Prime Minister should somehow be prevented from going to the country to get the consent of the people for what he is trying to do, to call a general election, is also a deeply worrying change to our constitutional pattern. But I sit at the feet of the noble Lord, Lord Norton of Louth, and I am perfectly prepared to alter my view and go along with this amendment, at least in part under his instruction, because it is a far better thing than Clause 2 as it stands.

I hope that my noble and learned friend Lord Wallace of Tankerness will accept the good advice that has been given him tonight and that at a later stage we will be able to discuss something that is more practical and workable and does not threaten the integrity of the office of Speaker of the House of Commons or the ability of the House to hold the Executive to account.

[Lord Maclennan of Rogart]

This debate has demonstrated the need for the Government to reconsider Clause 2. I am very grateful to all my noble friends and all those who have supported the amendment for raising the issue again and in a different context from the previous debates. The intention is to remove the opportunity for Governments to fiddle with arrangements in any way, and that is a desirable purpose. The amendment also seeks to clarify the circumstances in which a vote of no confidence is deemed to justify the holding of an election. However, although noble Lords have raised the debate, I do not think they have concluded it. There are defects in the drafting of Amendment 50 that need to be considered. No one has suggested that this is a perfect drafting, but I would like to suggest two or three points that could be considered when the Government come forward at a later stage.

The first point is that proposed new subsection (2) states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons”,

does certain things, but those things do not appear to be an exclusive list. It would still allow other circumstances to occur that enabled it to be said after the event that there had been a vote of no confidence. The rubric of statutory interpretation that springs to my mind is the Latin tag, “inclusio unius est exclusio alterius”. That might be the answer to this if that were still the law and still the rule of statutory interpretation, but it is not sufficiently clearly the case to avoid the possibility of a further circumstance being deemed to have been a vote of no confidence.

It also seems to me that there has been a slight conflation between a vote of no confidence and the inevitability of a Government’s fall followed by an election. I listened to the noble Lord, Lord Norton of Louth, with great respect, as I always do, but it seems to me that, even if the Wardlaw-Milne Motion of no confidence had been carried—and of course it was not—it would have been perfectly understandable in wartime if that had led to the demise of the particular Prime Minister or a significant change of Government without any election being held. I think the constitution was sufficiently flexible at that time to make it likely that that would have been the outcome. What we are considering here is the circumstances that trigger an election, and I think that needs to be put beyond doubt. I do not believe, even in the case of the European Community Bill in 1972, that despite what the Prime Minister of the day said it would have inevitably resulted in an election. It seems to me that it might have led to the departure of the then Prime Minister. However, he could easily have been told that there were others who would have been prepared to take his place and preside over the parliamentary majority that existed.

If we want an escape clause—and clearly an escape clause is necessary, even with a fixed-term Parliament—in a constitution that is prime ministerial and not presidential, we must have the possibility of having a vote of no confidence. However, I think the better solution to that is the one proposed already by my noble friend Lord Tyler, which is that the Motion of no confidence should come from the leader of the Opposition. If the Government appear to the party in government itself to be in a shambolic condition, it does seem highly probable that a leader of the Opposition would seize the opportunity to declare that the House has no confidence in the Government. I hope that that is the line that will be taken by the Government in reconsidering this clause, but that the case for reconsidering it is strong I have no doubt. Clause 2 as it stands is ill defined and gives no certainty on what the circumstances are within that two-week period which could lead to the holding of a general election. Amendment 50 is a good stab at trying to clarify which issues need to be addressed. The debate tonight will have given my noble and learned friend Lord Wallace of Tankerness a lot to think about and to discuss further with his colleagues, as I believe is definitely necessary.

[Lord Falconer of Thoroton]

My Lords, this has again been an important debate. I pay particular tribute to the speech by the noble Lord, Lord Martin of Springburn. It was forceful and effective in determining the importance of the role of the Speaker in the new Bill and had the experience of the Speaker in dealing with that. As far as I was concerned, it was absolutely clear throughout his whole speech where he was going with it. I also pay tribute to the noble Lords, Lord Cormack, Lord Norton of Louth and Lord Armstrong of Ilminster, and the noble and learned Lord, Lord Howe of Aberavon, for bringing this amendment forward. However, this proposed new clause slightly illustrates the problems again.

I will try to identify four principles within which we should be operating. Proposition one: whether we like it or not, the purpose of this Bill is to deprive the Prime Minister of his absolute discretion to determine the date of the general election. Proposition two: the Bill does not intend to disturb a constitutional principle that any Government should continue only for as long as they have the confidence of the House of Commons. Proposition three: currently, the House of Commons itself determines whether a Motion, when passed, indicates a lack of confidence in the existing Government. Proposition four: the Bill, whether in the form advanced by the Government or as amended by Amendment 50 moved by the noble Lord, Lord Cormack, seeks to try to produce a legal definition of what constitutes an indication of a lack of confidence in a Government, as opposed to leaving it to the politics of the time in the House of Commons.

The critical change which the Bill is making—if I may say so, the noble Lord, Lord Cormack, and his fellow tablers have been lured into it—is in trying to provide a legalistic definition of a vote of no confidence. It is not for the courts to intervene. I assume it will have to be the Speaker who does the job. When he sees the words “Motion of no confidence” in a Bill or an Act of Parliament, he will look to see what their preceding meaning was.

Noble Lords should read the Confidence Motions note, which is incredibly helpful on this. A Motion of no confidence can have two meanings. It can mean any motion which puts the confidence of the Government to test, and that can include an adjournment motion if the Prime Minister has said that it is a motion of confidence. It can be a motion moved by a Back-Bencher. It can be the Second Reading of a Bill. It can be the Finance Bill or the Queen’s Speech. It can be anything which puts the confidence of the Government at issue. Whether it is or not is not solely determined by the words of the motion, since it does not need to use “confidence” or “censure”. Neither is it determined, if it does not use those words, by the Prime Minister of the day simply saying, “This is a Motion of confidence”. It can be a motion of confidence even if it does not use those words and the Prime Minister does not treat it as one, because the House of Commons itself would treat it as one. Equally, it could be a motion that is not a motion of confidence even though “confidence” or “censure” are used in it, because Governments are repeatedly being censured for what they have done by motions, but everybody in the House of Commons understands that they are not motions of no confidence that would bring the Government down.

This matter is incredibly difficult to identify in a legalistic way. The noble Lord, Lord Norton of Louth, is looking confused, but you could have a Motion that said: “We censure the Government for their determination to sell off the forests”. If we assume that such a Motion was passed, everyone would understand that it would not lead to the Government falling. I wish to quote examples of Motions of confidence or censure that do not use the relevant words. The first Motion of confidence states:

“That this House deplores the action of Her Majesty’s Government in resorting to armed force against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order”.—[Official Report, Commons, 1/11/1956; col. 1631.]

That Motion was put down by the Opposition. A month later a further Motion of confidence was put down by the Prime Minister. It stated:

“That this House supports the policy of Her Majesty’s Government as outlined by the Foreign Secretary of 3rd December, which has prevented hostilities in the Middle East from spreading, has resulted in a United Nations Force being introduced into the area, and has created conditions under which progress can be made towards the peaceful settlement of outstanding issues”.—[Official Report, Commons, 11/12/1956; col. 845.]

Both those Motions fall on one broad understanding within the definition of a Motion of no confidence because, loosely, as I say, that is sometimes taken to mean any Motion that puts the confidence of the Parliament in that Government at issue.

Clause 2(2), as drafted, says:

“An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—

(a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted)”.

Is it intended that the phrase,

“a motion of no confidence”,

should embrace anything that puts the confidence of the Commons in the Government in issue? Therefore, does it include Motions, for example, on the Queen’s Speech? Does it include a Motion on the Finance Bill? Does it include anything that under the current definition in Erskine May would constitute a Motion of no confidence? We need to know the answer in order to know what the Government intend in relation to it. The problem that the noble Lord, Lord Cormack, rightly identifies is that it is such a compendious phrase you do not know where you stand in relation to it, and it gives the Speaker much too wide a discretion, which then brings him into issue politically. Subsection (1) of the new clause in the amendment states:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”.

That raises precisely the problem that the Government’s reference to a Motion of no confidence raises. I am afraid that the noble Lord, Lord Maclennan of Rogart, seems to me to be completely right in that, as a matter of construction, subsection (2) in the amendment does not say that a vote of no confidence will only have been deemed to have been passed. It states:

“A vote of no confidence will have been deemed to have been passed if”,

the conditions in paragraphs (a), (b), (c) and (d) in the amendment are met. Here are some examples, although they are not conclusive. The consequence of the point made by the noble Lord, Lord Maclennan, is that, with respect to the noble Lord, Lord Cormack, and his very impressive constitutional cohorts behind him, the amendment does not even begin to solve the problem that he has identified. However, the position is worse than that as the amendment states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons … (c) passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”.

Does that include the following Motion that was put down by Mr Attlee when he was Leader of the Opposition on 4 December 1952? It states:

“That this House regrets that Her Majesty’s Government is dealing with the Business of the House incompetently, unfairly and in defiance of the best principles of Parliamentary democracy and the national interest, and records the view that this is in part brought about by the efforts of Ministers to force through measures, unrelated to the needs of the nation, for which they have no adequate support in Parliament or the country”.—[Official Report, Commons, 4/12/1952; col. 1783.]

Is that a Motion of no confidence? I should tell noble Lords that that is a trick question because I am reading from a Motion that was regarded, and treated, as a Motion of no confidence on 4 December 1952. If Erskine May says that that is a Motion of no confidence, the effect will be that if an identical Motion is put down by Mr Ed Miliband, then, irrespective of what the Prime Minister, Mr David Cameron, says, it will be treated in a legalistic way as a Motion of no confidence.

[Lord Forsyth of Drumlean]

The noble and learned Lord is giving examples of Motions that were treated as confidence Motions. Am I missing something here? Surely the context has changed. Those Motions are in the context in which a Prime Minister can say, “I am putting this policy to the House. I regard it as a matter of confidence. If I don’t have the support of the House, I’ll go to the country”. However, the Bill, as the noble and learned Lord has pointed out, removes the Prime Minister’s ability to call a general election—to go to the country and take his case to the people ahead of the conclusion. In that context, what would constitute a Motion of confidence is quite different from the position in which the Prime Minister cannot go to the country, and I think that the reason why my noble friend has had to fall back on a specific Motion that says that the House has no confidence in the Government arises from that. Therefore, the Erskine May examples arise from a situation in which the Prime Minister can call a general election at any time in order to secure support in the country.

[Lord Falconer of Thoroton]

If the noble Lord is right, a massive constitutional change is being proposed. I did not realise that that was the intention. Is it intended that the fundamental principle of our parliamentary democracy—that if you lose the confidence of the Commons, you have to resign—should go? If that is so, then the principles underlying a Motion of no confidence presumably remain the same as they are referred to in Erskine May. It would be extraordinary if they did not, because the phrase that is being used is precisely the same as the phrase used in the Bill for determining whether there will be either Dissolution or a resignation. A Motion of no confidence is a well recognised phrase in Erskine May and there must be a reference to that in the Bill. The fact that there would not necessarily have to be a general election does not change the fundamental principle in our constitution that if you lose the confidence of the Commons you have to go. That, as I understand it, is what is intended by this provision.

[Lord Forsyth of Drumlean]

Under the present rules, it is perfectly possible for a flagship policy to be lost in the Commons and for the Prime Minister of the day to move a Motion of confidence that wipes the slate clean. Therefore, it is not as straightforward as the noble and learned Lord suggests.

[Lord Falconer of Thoroton]

The noble Lord may or may not be right. He has been in the Commons, I have not, so he will understand the situation better than I do. I do not have the experience of the noble Lords, Lord Martin and Lord Forsyth, but from looking at the history books it would appear that, by a process of general consensus, the Commons understands what is and is not a Motion of confidence. The best example of what was not a vote of confidence occurred on 10 March 1976, when the Labour Government’s public expenditure plans were defeated. I should have thought that the Government would have had to go on that basis, but they did not.

The next day there was a vote on whether the Adjournment was a confidence Motion. Presumably the Prime Minister said, “I’m treating this vote on the Adjournment as a vote of confidence”, and the Commons understood it to be such. How is the Speaker supposed to determine that a vote on the Adjournment as a legalistic matter is a vote of confidence? He could not, either under the Bill as drafted by the noble and learned Lord, Lord Wallace of Tankerness, or under the proposals of the noble Lord, Lord Norton of Louth.

Parliamentary Voting System and Constituencies Bill

Lord Forsyth of Drumlean Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Tyler]

My Lords, I am not sure whether the noble and learned Lord, Lord Falconer, intends to speak on this. I hope that he does because it would be very important for your Lordships’ House to hear precisely what the attitude of Her Majesty’s Opposition is. He and I have enjoyed each other’s company over many long hours throughout the passage of this Bill. I am not going to give him my views but I should like him to comment on the views of his colleagues. In the other place, Mr Christopher Bryant said:

“I do not agree with the hon. Gentleman about thresholds in referendums because, broadly, they are not a good idea”.—[Official Report, Commons, 2/11/10; col. 846.]

There is nothing there about indicative referendums or definitive referendums but all referendums or referenda. I am disappointed not to see the noble Lord, Lord Lipsey, in his place, because all of us who attended the long hours of Committee and Report very much respect the work that he has done on the Bill. He said just last week on Report,

“I do not support a threshold”,

and, again, there is no definition of what the threshold might be. He went on to say:

“Thresholds are arbitrary, they introduce bias, they distort debate and they have absurd consequences”.—[Official Report, 7/2/11; col. 106.]

Amen to every single one of those. He then argued his point in detail. I very much hope that if the noble and learned Lord, Lord Falconer of Thoroton, is going to respond to this debate, he will explain why he completely disagrees with his noble friend Lord Lipsey, who, as I think he will agree, has studied this Bill more than any of us.

[Lord Forsyth of Drumlean]

My Lords, I do not wish to detain the House but I agree with every word that the noble Lord, Lord Rooker, said. I do not think that in all the years we have engaged in exchanges I have ever been able to say that before, but I certainly agree with him now. He offers a warning to this House. I am not sure whether noble Lords will have had a chance to read the debate in the House of Commons. The Minister’s speech was extraordinary because it did not address the substance of the amendment before him. It addressed the idea of having a drop-dead threshold. In fact, he made exactly the same speech as Mr Bill Cash made on his own amendment, which would have introduced a 40 per cent cut-off point. If it did not reach 40 per cent, that would be the end of it.

With reference to the noble and learned Lord, Lord Lloyd of Berwick, I am very conscious that I am not elected and therefore I do not want to challenge the elected House, the House of Commons. However, this amendment has the effect of leaving it to the House of Commons to decide, and therefore it is very difficult to say that this House should not cajole the other House into putting itself in the driving seat on a major constitutional change.

I find it very difficult to understand why my coalition colleagues have not accepted this amendment. I shall not embarrass them by naming them but they have suggested to me that this is because of the coalition agreement. My noble friends Lord Lawson and Lord Lamont have dealt with that point. This amendment does not in any way threaten the coalition agreement, and I think we have had confirmation from the Front Bench that an amendment of this kind is not contrary to the coalition agreement. When I raised this matter with senior colleagues, they said, “Yes, it’s not in the agreement but it’s what we have agreed with the Liberals”. If we are to have agreements, they have to be transparent, and if our parliamentary democracy is to function, people need to know what agreements have been made behind closed doors and they need to look at the arguments.

I asked another senior Liberal strategist—again, I shall not name them in order to avoid embarrassing them—what they thought the turnout might be in London, where there are no elections. All the pressure on the Bill has been focused on having the referendum at the same time as the Scottish parliamentary elections and the local government elections, and I think that that is a bit dodgy. It is an attempt to try to get a higher turnout. That suggests to me that people are worried about the turnout. As my noble friend Lord Lawson said, if you do not know what you think about something complicated, the wise advice is not to participate in it—not to express a view. We are 10 weeks away from this referendum. Have we seen any of the arguments? Do we believe that the electorate have had a chance to consider all the arguments, or that that is likely to happen with Easter intervening?

--- Later in debate ---

[Lord Trimble]

My Lords, I know that we are getting towards the end of this debate but I want to make just one short point. I understand the argument for this threshold—it is the fear that there might be a yes vote on a very low turnout, and the wish to have this protection against it—but if that did happen, we would be repeating what happened with the Scottish referendum in the 1970s.

[Lord Forsyth of Drumlean]

There is another point that is being missed: the idea, which the Minister repeated in the other place, that this threshold would be the same as the one in the Scottish referendum. In the Scottish referendum there was a threshold not on turnout but on the result, which is why it caused such resentment. A 40 per cent threshold on that would of course be unacceptable. So the comparison is a bogus one.

[Lord Trimble]

I will make the point none the less, and I am glad that the noble Lord, Lord Forsyth, has given me assistance in making it. I take the point with regard to voting rather than turnout, but we are getting into the same territory; and, as the noble Lord, Lord Forsyth, said, it caused great resentment. Will noble Lords please consider whether this device, if it works as intended, will not also cause great resentment? I have strong views on AV and look forward to the campaign against it. I wish that we could get on with that instead of wasting our time on this matter.