Arrangement of Business

Debate between Lord Forsyth of Drumlean and Lord Wallace of Tankerness

Tuesday 3rd September 2019 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, in the exchanges during Oral Questions, the noble Earl, Lord Howe, indicated that, given the Conference Recess, the length of Prorogation would not mean too many more days of parliamentary time lost. This argument has been deployed on several occasions by government spokespeople, and so I sought to try to find the dates of the Conference Recess. I do not seem to be able to find them anywhere. I congratulate the Chief Whip on his appointment, but can he point me in the direction of where I will find them, or is it the case that they have not been published and that without Prorogation the default position is that we would continue to sit next week and the week after, through the conference season?

[Lord Forsyth of Drumlean (Con)]

My Lords, has my noble friend seen the reports in the press suggesting that some Members of the Opposition might seize control of the agenda in this House—I understood that we were given an undertaking that that would never happen again—and use that opportunity to introduce a guillotine to this House for the first time? Does he not agree that the very purpose of this House arises from the fact that the guillotine in the Commons results in Bills coming to us that have not been properly scrutinised, and that therefore the introduction of any guillotine to this House would destroy its very purpose and create a precedent that would have serious, almost constitutionally outrageous, implications?

European Union (Withdrawal) Bill

Debate between Lord Forsyth of Drumlean and Lord Wallace of Tankerness

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

On the subject of trust, the noble and learned Lord mentioned the Edinburgh agreement, which the Scottish nationalists signed up to. No sooner was the ink dry on the paper than they were repudiating it. Does he remember the assertion that it would be a “once in a generation” referendum on independence? Surely we are dealing in Scotland with a nationalist Government determined to destroy the United Kingdom. Why on earth would one want to give them a veto over decisions taken by the United Kingdom Parliament?

[Lord Wallace of Tankerness]

My Lords, I accept that, with regard to “once in a generation”, the Scottish National Party is guilty of not living up to what it said, but it is not right to say that, once the ink was dry on the paper, it totally forgot it. What was in that agreement informed both the Section 30 order that was passed and the legislation then passed by the Scottish Parliament in conformity with the agreement. A substantial part of that agreement was carried through in good faith by both parties.

The detailed wording of Schedule 5 to the Scotland Act was important in getting the right balance in the devolution settlement. If in the normal course of events that were to change, it would require an order under Section 30 of the Scotland Act, which requires an affirmative vote not only by both Houses of this Parliament but by the Scottish Parliament. What we are proposing is consistent with what would happen in the normal course of events when the balance of the devolution settlement was changed. That is why I strongly encourage the Minister at least to show willingness to think about this matter and reassure us that the Government are sensitive to it. That could go some way towards establishing a better basis for trust as we look forward to our debates on Clause 11.

European Union (Withdrawal) Bill

Debate between Lord Forsyth of Drumlean and Lord Wallace of Tankerness

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

May I ask the noble Lord to cast his mind back to 26 January 2012, when I moved a Motion that the Scotland Bill be considered in Committee, and he moved an amendment that the House,

“declines to consider the Bill in Committee until Her Majesty’s Government have laid before Parliament a report on the results of the consultation they launched on 11 January on Scotland’s constitutional future and until the Scottish Parliament has passed a further Legislative Consent Motion in respect of the Bill”?—[Official Report, 26/1/12; col. 1161.]

He was going to deny a Committee stage on a Bill that contained measures supported in the Conservative, Liberal Democrat and Labour manifestos at the preceding general election. This amendment would still allow the Bill to go forward and become an Act. How does he describe his apparent lack of consistency?

[Lord Forsyth of Drumlean]

I think I was behaving exactly like the noble Lord, Lord Foulkes. I was using the procedures of the House to make an argument against what I thought at the time was a very bad Bill—and which only this week has meant that people like me are now the highest taxpayers in the United Kingdom, as we predicted would happen. If I may say so to the noble and learned Lord, his point is completely irrelevant to the amendment before us.

The noble Lord, Lord Foulkes, talks about tensions being created in Edinburgh between this Parliament and the Scottish Parliament. There will always be tensions between this United Kingdom Parliament and the Scottish Parliament, as long as it is run by people who wish to destroy the United Kingdom. That is what they are about: using their powers to break the United Kingdom. The notion that we should move in a direction and get ourselves into a position where we need lots of legislative consent Motions simply provides more opportunities for everything to be turned into a constitutional crisis, which is the nature of the SNP. We will come to that later in our consideration of the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I note what the noble Lord, Lord Forsyth, said in response to my intervention. On the occasion to which I referred, the noble Lord, Lord Foulkes of Cumnock, actually supported him in trying to stop the Bill going forward to Committee stage.

I think that what my noble friend Lord Thomas of Gresford said about the sheer frustration that lies behind the amendment—and what the noble Lord, Lord Wigley, said about the lack of conversation—is absolutely true. That has coloured the background to these discussions. It is worth reminding ourselves about the root of some of this frustration. I think it was in October 2016 when, in a plenary session chaired by the Prime Minister, the Joint Ministerial Committee established the Joint Ministerial Committee on EU Negotiations, with the following terms of reference:

“Working together in EU Negotiations … Through the JMC(EN) the governments will work collaboratively to: discuss each government’s requirements of the future relationship with the EU; seek to agree a UK approach to, and objectives for, Article 50 negotiations; and … provide oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured from these negotiations; and, discuss issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive”.


The fact that, tomorrow, the Joint Ministerial Committee on EU Negotiations will meet for the second time in 12 months suggests that these terms of reference, agreed by the three devolved Administrations and the United Kingdom Government, have been more honoured in the breach than they have been in the actual implementation. That is at the source of much of the frustration that we have heard expressed. One hears it: when he was replying to the debate initiated on 25 January, the noble Lord, Lord Duncan of Springbank, said:

“The important thing is to stress that it is not for want of effort on our part”—


that is, the United Kingdom Government’s part—

“to secure a form of words that would allow the two devolved Administrations and the UK Government to reach a consensus on that point”.—[Official Report, 25/1/18; col. 1128.]

Yet, if you go to the devolved Administrations, they will say that they have had no communication. There is a lack of communication and there seems to be a complete mismatch with what has been said to us.

It would be interesting if the Minister could tell us yet whether the actual wording of any possible amendment to Clause 11—the Secretary of State for Scotland has accepted that Clause 11 has to be amended; he said that it would be done on Report in the House of Commons, but it was not—has been discussed at ministerial level between the United Kingdom Government and the devolved Administrations. If so, when was that discussed? When the Scottish and Welsh Governments addressed a briefing of Peers in late January they indicated that there had been no exchange of wording.

What is even more frustrating is that it does not seem that the parties are terribly far apart. In September last year, the Scottish Government acknowledged in their legislative consent memorandum that there were areas in which there would have to be common UK frameworks. The communiqué issued after the last Joint Ministerial Committee on EU Negotiations in October also set out the areas in which UK common frameworks were necessary and desirable. Both sides have agreed that that has to be done. Why in the world is more progress not being made, or at least why are we not able to see what progress, if any, is being made?

Perhaps the biggest problem here is the fact that it is done behind closed doors. If there were more transparency, we would see who was playing to the gallery and who was trying genuinely to seek a resolution to these matters. There are issues, such as agriculture, fisheries and the environment, where everybody acknowledges that there will have to be some kind of common framework. Let us identify what progress has been made.

We were told this week in newspaper reports that the United Kingdom Government have done a complete reversal. They now say that they will bring forward an amendment that will devolve everything back to the devolved Administrations, but, as it said in the Times report from yesterday,

“UK ministers are also adamant they would need to retain a veto over the use of some of these powers until ‘common frameworks’ are agreed”.

Again, in terms of public relations, it is like saying, “Here’s one hand; we’ll take away with the other”. What is the position? If we are to have to make decisions when we come to debate Clause 11, it is important that we know what the relationship is and what each side in these negotiations is saying.

[Lord Forsyth of Drumlean]

The noble and learned Lord is very clever and experienced at negotiations with different political parties in government. Perhaps I am too stupid, but I cannot think of a way—and I agree with a lot of what he said—to word an amendment that would deliver the result that he suggests is needed. Can he help me? What would an amendment actually say that ensured that there was the kind of continuing co-operation that is needed?

[Lord Wallace of Tankerness]

My Lords, if the noble Lord will allow me, there is certainly one attached to Clause 11 that has my name on it, as well as the names of a number of other noble Lords. He will find that Amendment 303 sets out a basis for having common frameworks. Indeed, the noble and learned Lord, Lord Hope of Craighead, has one in very similar terms, Amendment 304, which certainly provides a basis for moving forward. We are in opposition. The onus is on the Government to come forward with this. Let us not kid ourselves. The noble Lord, Lord Forsyth, makes a fair point, but it is the Secretary of State for Scotland who promised amendments on Report in the House of Commons. He has made the commitment to amendments, so the onus is not on the Opposition to come forward with these amendments but on the Government.

I hope that when the Minister replies he will tell us what the colour of the Government’s amendments will be. In the European Union negotiations, TF50 sets out where each of the parties is and gives us great transparency—where there is disagreement and where there are things that have to be clarified. This whole exercise would benefit from far greater transparency so that we can see what progress is or is not being made, who is holding things up and who is genuinely seeking to make progress. I appeal to the Minister to make a commitment when he replies that, following tomorrow’s JMC on the European negotiations, that transparency will become a reality.

Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Debate between Lord Forsyth of Drumlean and Lord Wallace of Tankerness

Wednesday 10th January 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, with characteristic vigour, the noble Lord, Lord Foulkes of Cumnock, has laid out the many misgivings that have been expressed about the proposed merger—it is not even a merger but a dismemberment of the British Transport Police, with the Scottish part of it being put into Police Scotland. Many of the arguments were rehearsed when your Lordships’ House debated the devolution of legislative competence for dealing with the policing of railways and railway premises during the passage of the Scotland Act back in 2016.

Before coming back to that, perhaps I may do the unforgivable and talk about what the order and the amendment say. As the noble Lord, Lord Duncan, indicated, the order takes forward the response by the Scottish Parliament to a decision of the Supreme Court on which the noble and learned Lord, Lord Hope of Craighead, sat in the Cadder case. I have a vivid memory of the time, because the Scottish Parliament had to pass emergency legislation immediately to address the breach of the European Convention on Human Rights that had been identified by the Supreme Court. At the time, as Advocate-General for Scotland, I had to take careful note of what was going on in the Scottish Parliament. We had a TV monitor of the parliamentary proceedings in my office because we had to decide very quickly whether we wished to make reference to the Supreme Court if we thought that any Bill had gone beyond the legislative competence of the Scottish Parliament and whether any amendments being passed right up to the last minute would change that. It was open to me under Section 33(3) of the Scotland Act 1998 to indicate to the Presiding Officer that I would not use the four weeks available to consider whether there should be a reference to the Supreme Court and to indicate that I would not refer it. At that point, with concurrence from the Attorney-General and the Lord Advocate, the Bill could go immediately for Royal Assent, and that is what happened.

It was always anticipated that there would have to be further legislation, which came along six years later, but with the benefit of a review undertaken by the then Lord Justice Clerk, now Lord Justice General Carloway. It is the provisions of that 2016 Act—which, I should point out, received Royal Assent two months before the Scotland Act 2016, to put into perspective what we are debating today—that give rise to the order. As the Minister said in his opening remarks, many of the provisions are to increase the rights of suspects held in detention and deal with the powers of police. Because the Scottish Parliament cannot legislate for police outside Scotland in relation to an arrest made in respect of a crime committed in Scotland, or make legislative provision for the British Transport Police—at least, it could not in 2016—the order is necessary to ensure that if the British Transport Police, for example, arrest someone, that person should have the same rights as if they were arrested by a constable of Police Scotland.

That is perfectly proper. These are the provisions of the order that relate to the British Transport Police, along with a further provision relating to stop-and- search powers, which are important and which we do not regret—far from it. I rather suspect that if Her Majesty’s Government reviewed the operation of the provisions in the light of incorporating the British Transport Police into Police Scotland, they might well find that it makes things simpler, because it would not need to be included in the order.

That is why I have misgivings about supporting the amendment, but it is important to reflect on some of the points made by the noble Lord, Lord Foulkes. It is important to say at the outset that the integration of the Scottish part of the British Transport Police into Police Scotland was not a recommendation of the commission under the chairmanship of the noble Lord, Lord Smith of Kelvin. It recommended devolution of legislative competence in relation to the policing of railways and railway premises and that the British Transport Police should become a cross-border authority. It is the SNP’s interpretation that it has to be integrated into Police Scotland. Integration was only one of three options that the British Transport Police working group identified. Significantly, it was the option with the highest degree of risk and was opposed by most stakeholders.

The noble Lord mentioned the recent report of Her Majesty’s Chief Inspector of Constabulary in Scotland. He found in paragraph 47:

“As the decision to transfer BTP’s functions in Scotland to Police Scotland was a Ministerial decision, no single, detailed and authoritative business case which articulates the benefits, disadvantages or costs of the transfer to Police Scotland was developed”.


In many respects, the Scottish Parliament has been asked to do this blind but, as we have heard, there is a majority. There was a failure to consult in any meaningful way, a failure to work out how we maintain the detailed expertise of the British Transport Police on the railways postmerger, how costs would be assigned and how potential disputes would be resolved. That is being done at a time when it is fair to say that considerable challenges face Police Scotland as a result of what I and my party believe was a botched centralisation. Indeed, my Liberal Democrat colleagues in the Scottish Parliament were lonely voices when they made the case against the centralisation of Police Scotland. We have seen a succession of resignations, suspensions of senior officers and early retirements, both in Police Scotland and the Scottish Police Authority. We welcome Susan Deacon’s appointment and hope she can get a grip on things, as she has recently taken the reins. There has been a failed IT project and a report from the Auditor-General in Scotland referring to a number of instances of poor governance and poor use of public money. If that had happened in the second biggest police force in England, let alone the second biggest in the United Kingdom, we would probably have had a “Panorama” special by now. I am not sure why the media have not latched on to what has been going on.

I do not think the time is right at all for this merger. There are other issues which the Chief Inspector of Constabulary has identified in his findings. Among them are the facts that full costs have not been assessed, and the financial impact on railway policy in England and Wales of transfer of railway policing in Scotland has not yet been fully assessed. In that respect, will the Minister tell us, if it transpires that there are costs to transport policing in England and Wales, under the various memorandums of understanding with regard to allocation of costs, where will that cost fall? Will it fall to the Scottish Government to bear? That will undoubtedly be important as things go forward.

The noble Lord, Lord Foulkes, raised the potential issue of transfer of property. Are there any consequential orders or steps that have to be taken under the Railway Policing (Scotland) Act 2017 that would involve the United Kingdom Government in giving full effect to that? What would be the UK Government’s policy in relation to it? As the noble Lord said, there is some leverage here, and I hope it is used sensitively.

It is also fair, however, to acknowledge that this Parliament, including this House, agreed to the devolution of railway policing in Scotland. I was going to say that the ship has sailed but it is probably better to say that the train has left the station. It is a matter for the Scottish Parliament. My Liberal Democrat colleagues in the Scottish Parliament, supported by Labour and Conservative MSPs, sought to delay the merger until 2027 at the very earliest, failing which to oppose it outright—but it was a decision of the Scottish Parliament to reject that delay and, indeed, to support what happened. It would be remiss of this House to gainsay what has been done by the elected Scottish Parliament, but there are issues still to be determined and some indication of the Government’s stance on those would be very welcome.

[Lord Forsyth of Drumlean (Con)]

My Lords, the noble and learned Lord may be correct about the train having left the station, but I remind him that during the passage of the Scotland Act as it now is many of us warned about this problem—and he himself made a speech exactly saying that. But such was the political imperative from some people not to be seen doing anything that would cause an upset with the Scottish nationalists that we allowed this to go ahead. The result is that we are looking at the prospect of the destruction of an organisation that has served this United Kingdom well for more than two centuries. Is it two centuries, or over two centuries?

Devolution (Constitution Committee Reports)

Debate between Lord Forsyth of Drumlean and Lord Wallace of Tankerness

Monday 9th October 2017 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I thank the noble Lords, Lord Lang of Monkton and Lord Jay of Ewelme, for introducing the debate, and their respective committees for giving us the opportunity to consider some very substantial reports containing some very important recommendations. I welcome the noble Lord, Lord Duncan of Springbank, to the Front Bench. We look forward not only to his maiden speech replying to this debate—what a challenge—but his subsequent contributions to your Lordships’ House.

There is probably no better place to start than the opening words of the European Union Committee’s report, which sum up the situation quite succinctly:

“The impact of UK withdrawal from the EU on the UK’s devolution settlements is one of the most technically complex and politically contentious elements of the Brexit debate”.


If anything, that may even be an understatement. As has already been referred to, the architecture of the devolution schemes fully reflected—almost took for granted—our membership of the European Union. Section 29(2)(d) of the Scotland Act 1998 indicates that an Act of the Scottish Parliament is outwith the competence of that Parliament if it is incompatible with Community law; there is similar provision for executive actions. I think the noble Lord, Lord Jay, said that the European Union was the glue that held our union together. In addition, the structure of devolution has been such that everything is devolved unless it is expressly reserved. Devolution includes agriculture, fisheries and the environment—all devolved issues but which hitherto have had a very important European Union component. Logic would certainly indicate, as the noble Lord, Lord Jay, did, that following Brexit these would become the responsibility of the Scottish Parliament and the other devolved bodies.

It is right to say that the Scottish Parliament, in exercising its powers over a number of these areas, has done so within frameworks established by the European Union. Who knows, if we had not been an EU member in 1998—we can speculate but it would be somewhat academic—what further exemptions might there have been in Schedule 5 to the Scotland Act? But that is not where we are. There are some very good reasons why we should be pragmatic and apply common sense in suggesting that there must be frameworks which should be discussed and applied at a UK level. I do not believe it is anti-devolution to say so. The committee itself recognised that some things would be best done at a United Kingdom level when we are outside the European Union. Indeed, paragraph 19 of the Scottish Government’s legal consent memorandum on the European Union (Withdrawal) Bill states:

“The Scottish Government has made clear … its willingness to negotiate UK frameworks in certain areas previously covered by EU law. This could be, for example, to support the functioning of UK markets, or to facilitate the management of common environmental resources”.


The Scottish Government themselves accept that there is a need for United Kingdom frameworks. It is important, therefore, that we address how we best tackle this and the European Union Committee is absolutely right when it emphasises the,

“need to set aside … differences and work constructively together to achieve an outcome that protects the interests of all parts of the UK. No durable solution will be possible without the consent of all the nations of the UK”.

One of the Select Committee’s recommendations reflects some of the earlier reports from the Constitution Committee about the importance of Joint Ministerial Committees. The noble Lord, Lord Lang of Monkton, welcomed the establishment of the Joint Ministerial Committee (EU Negotiations). It was announced by the Government, with much fanfare, last autumn. I received during the most recent Recess a Written Answer from the noble Baroness, Lady Sugg. I had asked how many times that Joint Ministerial Committee had met in 2017. The answer was twice, on 19 January and 8 February. I have no doubt that the Minister will tell us that there is a meeting scheduled for next week and there have been umpteen, or several, bilateral meetings. But the mechanism established by the United Kingdom Government was to have a Joint Ministerial Committee. The recommendation of the European Union Committee was very practical and the Government’s performance to date has fallen well short of this very reasonable recommendation. It is a test of how seriously the Government take their responsibilities towards achieving an outcome that will be satisfactory to all parts of the United Kingdom.

If we look at how we would establish which should be the areas for common frameworks, it would be wrong for the Government to determine that this should be done on a top-down basis. The concerns expressed by the noble Lord, Lord Jay, with regard to the European Union (Withdrawal) Bill betray a certain attitude that this would be done in a top-down way.

A body or a commission should examine these issues. It should be transparent and constructive, in a way that commands support from all parts of the United Kingdom and from all parties. The timescale of a royal commission would probably be too long. However remarkable the work done by the Smith commission, it was far too short and done with a degree of relative secrecy—it was not particularly opaque. We need something that is transparent and engages people, for example by taking evidence from the fishing industry, the agricultural industry and environmental groups as to what they think it important that we should do on a United Kingdom basis. After that the respective Administrations could, as they do now under European frameworks, produce detailed policies within that framework to meet the needs of particular areas.

Even when these United Kingdom-level frameworks are agreed, it would again be wrong if it were purely the United Kingdom Government who set the agenda. We should look for a balance of competences that is both devolved and shared. For example, the Joint Ministerial Committees could be put on a statutory footing. They would no longer be the talking shops which they often have been and could be invested with executive powers. For example, it may be necessary to consider whether they should operate with the possibility of weighted voting. Having made that agreement, the respective devolved Parliaments and Administrations—and the Westminster Parliament, as far as England is concerned—could then be allowed to work out how these agreements would be implemented in detail. That might in some ways be seen as a derogation from the sovereignty of Parliament but I believe David Cameron’s Conservative Government went down that path with their English votes for English laws. We now have a situation where one subset of Parliament, the English Members, can veto a measure that has been passed by the Lords and the Commons.

[Lord Forsyth of Drumlean (Con)]

The noble and learned Lord is making a very sensible and careful speech but could he just explain to me how agricultural subsidies would work under his scheme of things? Most of the money spent by the European Union is on the CAP and before we joined the European Union, we had a common system set by the United Kingdom Parliament. I find it quite difficult to envisage different subsidies for sheep on either side of the Scottish or Welsh borders, or how a market would operate under those proposals. I am thinking of the politics of it, where we have a Government in Scotland who wish to break up the United Kingdom. I just do not see how it could be practical. Is it not a little hypocritical of those who argue that we should remain in the European Union, and that these powers should therefore remain in Brussels, to say that they cannot possibly be exercised by the United Kingdom Parliament?

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Forsyth, makes an important point about the distribution of funds but that point should be agreed. It should not be done, as it were, on a top-down basis by the United Kingdom Government. I would point out to him that when there was a change in the basis for European Union agricultural payments in the early years of this century, Scotland went down the route of historic payments whereas England certainly went down that of payments based on area—I am not sure about Wales. So even under the present arrangements, there are differences in how these things are dealt with north and south of the border.

I will not detain the House on other issues relating to migration, on which the committee made important recommendations. Having looked at the Government’s response, it makes the word “banal” sound exciting—there was no response at all. The Government should have second thoughts on that and address the very important points made by the committee.

If we had a ministerial group setting out the framework, as I have proposed, we would also need some body to overlook it. That could well be done through an interparliamentary body, trying to bring the different Parliaments of the United Kingdom together—in Scotland, Wales, Northern Ireland and the Westminster Parliament—to provide that kind of oversight. If that is a step towards federalism, then certainly from these Benches I do not apologise.