Scotland: Smith Commission

Lord Foulkes of Cumnock Excerpts

Thursday 27th November 2014 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, as we make progress with Scottish devolution, as we consider the clauses and as these meetings take place, do we not all agree that it will be understandable if resentment grows in England because of the English democratic deficit? If we can agree the vow effectively overnight, and if the Smith commission can be set up so quickly, why is it that the parties—the Liberal Democrats, the Conservatives and the Labour Party—cannot get together and get the UK constitutional convention up and running as quickly as possible so that we can look at the situation in the whole of the UK in a comprehensive and holistic way?

[Lord Wallace of Tankerness]

My Lords, I know that the noble Lord has regularly put forward the case for a UK-wide constitutional convention. As I said when your Lordships’ House debated these issues on 29 October, the Government will consider proposals for the establishment of such a convention. While it is important that we debate these things, it is also important that we engage with the wider public. Let me make it clear that today’s heads of agreements should not in any way be held up by any constitutional convention, but I am sure that there is no shortage of issues that could be sent to such a convention.

Scotland: Devolution

Lord Foulkes of Cumnock Excerpts

Wednesday 29th October 2014 Lords Chamber

[Lord Lennie (Lab) (Maiden Speech)]

My Lords, I speak for the first time in your Lordships’ House and do so with a degree of humility, nervousness and some trepidation. My particular fear is that this piece of prompt technology will fail part the way through what I have to say. If it does, I have no doubt that someone will rush from somewhere to my aid, which has been my experience thus far in this House at every turn, or every wrong turn, that I have taken. I pay tribute to all the staff, officers and Members of this House on all sides who have been generous and kind, and have welcomed me here. I also thank my two supporters, my noble friend Lady Armstrong and my noble and learned friend Lord Falconer, who is unable to be here today—I will come to that in a minute—for doing me the great honour of introducing me to the House on Monday. Both have been my friends and political allies for many years and I hope will be for many more years to come.

With regard to my noble and learned friend Lord Falconer, I have an important leak to reveal to the House. A confidential source has revealed to me that he has been approached by a leading publisher to write a book. The working title is “The Ten Apples and Ten Cokes a Day Diet”.

[Lord Foulkes of Cumnock (Lab)]

I could do with that.

[Lord Lennie]

Noble Lords may have seen some pre-publicity about this in the Sunday Times this week. It was not just a puff piece—it was a strategically placed article. The plan is to publish this as a pre-Christmas stocking filler. The problem with the plan is, of course, that my noble and learned friend Lord Falconer, subject to his successful diet, can no longer fill a stocking, so the plans are somewhat in disarray as far as publication is concerned.

I start my comments about devolution. I am somewhat unusual in this House in that I have experience of an English region rejecting devolution of power. A decade ago, as my noble friend Lord Prescott has said, the north-east chose by a large margin not to accept my party’s kind offer of a regional assembly. At that time I was the Labour Party director in the north of England. It is often said that we are shaped by our experiences. Having to explain the north-east rejection to my noble friend Lord Prescott certainly helped shape me.

Despite that defeat, I believed then, and I believe now, that there is an appetite for devolution of government in order that we improve lives, or seek to improve lives, and increase opportunities across England. For devolution to succeed, however, we must understand the reasons for its past failure in terms of what happened in the north-east. There was a disconnect between politics and people. That fundamentally explained the rejection of the regional assembly. The opponents simply asked voters whether they wanted more politicians at more cost, meddling more in their lives. The answer was a resounding no, thank you very much.

I suspect that the climate for politics is less favourable today than it was then. I may be wrong, but that is my suspicion. For devolution to succeed, the distance and disconnect between politicians and voters has to be narrowed, not just here at Westminster but in councils too. After all, an out-of-touch political elite is equally offputting, whether clad in ermine or mayoral robes.

Devolution must not be something that politicians want to do to voters, but a change delivered with, by and for the people. Proposals bringing this devolution to English regions and cities must be judged not by how they solve the problems for political parties but by how they will make things better for citizens in every region of the country. There needs to be a convincing argument that devolution means government done at lower cost, with clear, tangible benefits to the electorate at large. That is a huge challenge.

How do we go about this? First, devolution in England needs to be considered purely on its own merits. Otherwise, voters will see English devolution proposals as the unforeseen or unintended consequence of the Scottish referendum. They will see politicians trying to apply a fix to a problem they themselves created.

Further, we need to be clear that English devolution and English votes for English laws—EVEL—are not the same issue. Today we have a hugely centralised English government; changing who votes on which legislation may be a good thing or a bad thing in reflecting an English will, but it devolves little power. It cuts no costs. It makes the delivery of government policy no more streamlined than before. If we want devolution, we surely have to look beyond the question of who votes in Westminster. That means that we must devolve the process of devolution. It is easy to say that you are in favour of devolution, but if your deeds undermine your words, you will fail to impress voters who you want to support your proposals.

We must reach beyond politics and ensure that whatever we put before the English voters commands public support from a broad consensus of civic society, who can then seek to reassure those who are suspicious of politics—and I believe that they are currently the many, not the few.

Finally, I would like to say that I chose the title of Longsands Tynemouth. It was featured in a photograph in the Times last Friday; your Lordships may have seen it. It is where I live; it is worth a visit; and if you go there, go to the wonderful beach bar, Crusoe’s. It is where I spend much of my family time.

My home region, the north-east, is engaged and energetic and sceptical of easy promises. Those are qualities that I shall endeavour to replicate to the best of my ability. It is an honour beyond measure to be one of those of all parties and none who will speak up for my region in your Lordships’ House.

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[Lord McConnell of Glenscorrodale (Lab)]

My Lords, the result of the Scottish referendum was clear enough to resolve the issue of Scotland’s place within the United Kingdom for at least a generation, but it was also close enough to make all of us in positions of responsibility, elected or otherwise, sit up and listen to the message that it sent. Probably the most used phrase in Scotland over recent months has, I suspect, also been used across many of the towns of the north of England and elsewhere in the UK: “They just don’t get it”. That is a telling reminder for us of the disconnect that exists today between the Government, Parliament and the people that they are there to serve. In recent years there have been bonuses paid that appear to have been completely unjustifiable, scandals covered up at the British Broadcasting Corporation, the ongoing scandal over many years of expenses for Members of Parliament, and the “jobs for the boys” culture that appears to exist in and around British institutions. The feeling that they—the metropolitan elite in one form or another—are in it for themselves ran deep in Scotland in August and September. Those voting yes were not all nationalists, but they did all want to kick the establishment and the established order.

[Lord Foulkes of Cumnock]

Does my noble friend not agree that there have been some problems in Holyrood just as much as in Westminster?

[Lord McConnell of Glenscorrodale]

Yes, but I do not think that the issue there in any way reflects the perception in the country, not just in Scotland, of what happens between people in positions of responsibility and in established institutions in London and the metropolitan centre.

It is a matter of real regret for me that the fantastic atmosphere, very similar to that described by my noble friend Lady Royall, that existed in Glasgow and the rest of Scotland in July during the Commonwealth Games dissipated so quickly and turned into such bitterness and bile. It is also a matter of regret for me that it took Dan Snow, Bob Geldof and others to positively express what was good about the United Kingdom and worth keeping, in a way that most of the politicians seemed unable to do. It is a matter of deep regret for me that so many of what I would describe as UK politicians seem unable to see and praise, even from time to time, the good that has happened in the devolved Assemblies and Parliaments since they were created. That resonates with the people because it adds to that perception of being out of touch and at a distance. It is also a matter of regret for me that, in an unnecessary panic, commitments were made about additional powers for the Scottish Parliament that will be a challenge to keep. However, we are where we are, and keep those commitments we must.

I believe very strongly that the Smith commission must drive its work based on the following principles: the principle of subsidiarity, by which decisions should be made at the most local level possible; the principle of mutual respect between the two Parliaments and between the two Governments; and the principle of fiscal responsibility, but also fiscal opportunity for the Scottish Parliament so that it can make decisions that might spark off entrepreneurial activity and other developments in Scotland, in addition to having responsibility for the expenditure that it has made so far and will make in the future. The Smith commission should absolutely commit itself to doing nothing that would damage the UK single market. It should also have firmly in its thoughts the need to redistribute across the UK from rich areas to those that have more needs.

I believe strongly that the unionist parties will need to move their current policy positions. A settlement based on any of the current submissions will not be sufficient to create stability and allow the debate in Scotland to move on to using powers rather than more powers. The final settlement will require somewhere between half and two-thirds of expenditure being the responsibility of the Scottish Parliament through tax-varying or tax-setting powers. I believe that those powers should be not just for income tax; they should be partly income-related, partly business-related and partly sales-related. There must be the power to vary rates of tax up and down but not to assign revenues. If these additional powers are to be devolved to Holyrood, Holyrood itself must reform to ensure that government and decisions there have more accountability, and more checks and balances, than they appear to have at the moment.

With regard to the situation in the UK, coming out of the referendum it is vital that the UK looks at votes for 16 and 17 year-olds. The issue of English consent—not necessarily English votes—for English laws will have to be addressed in due course. Reform of this House, based on more equal representation for the regions of this country, will be essential. Individual matters such as the recall of MPs and the future of the territorial Secretaries of State will need to be addressed. I would have preferred it if these issues had been addressed in a constitutional convention, and I hope that that option might still be on the table.

Finally, I really wish that the Prime Minister, instead of standing on the steps of No. 10 the day after the referendum, had come to Scotland and said thanks. It would have been the right thing to do: to come to Scotland and say to people, “We are grateful that you voted the right way and we will be back. We mean it. We meant it when we said that we would change and improve this relationship, and in future our Ministers, both government and opposition, will come to Scotland and other parts of the kingdom not just when there is a problem and a vote is taking place. We will come all year round and will engage with you, and we will govern for the whole United Kingdom”. If the Government would do that, the whole kingdom would be a happier place.

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[Lord Foulkes of Cumnock]

My Lords, I am pleased to follow the noble Lord, Lord Dobbs, in spite of what he said. I hope that he will forgive me if I return to the opening speech by the noble Baroness, the Leader of the House, for whom I have the greatest of respect. I fear that in parts of her speech she gave away the fact that Whitehall seems to have learnt nothing from the referendum. I do not think that she and Whitehall realise how near to disaster we were. We were at the edge of a precipice and we nearly went over it. We only avoided it because, thankfully, the silent majority in Scotland saw what was at the bottom of the precipice and came back and voted no. Otherwise we would have gone over that precipice, with all of the United Kingdom’s institutions behind us, into total disaster. We really need to learn from that. This was a vote against separation, it was not a vote for the status quo. Paradoxically, the losing side are energised by what has happened and we, the winners—2 million of us—have been forced to come back, like King Edward, to think again. If we do not come up with a sensible, credible and, above all, stable alternative, we will be back to the precipice sooner rather than later. We must find a long-term solution.

I will look carefully at two aspects. First, on Scotland and the Smith commission, I agree with my noble friend Lord McConnell. Its decisions I hope will be based on principles and not on party horse-trading. Two key principles are that the powers to be devolved should be devolved for a purpose, that is sensible and appropriate to be carried out at the Scottish level, benefiting the Scots but not harming citizens of the United Kingdom; and that we need not what the nationalists call full fiscal economy, but what I call fiscal responsibility. As others have said, we should devise a way for them to be responsible for raising the money that they spend. That will not be easy. Some have pointed to the difficulties and others have pointed to the way forward. Surely with all the expertise that we have in the Treasury and elsewhere, something can be worked out. I look forward to the third Scotland Act. This is becoming a Shakespearean drama—but I must not go down that line or we will end up with “Macbeth”, and we all know how that ended: not very well.

We must also look at the English democratic deficit. Not the West Lothian question; the English democratic deficit. I remind noble Lords that before devolution, when we had peculiarly Scottish legislation decided here at Westminster, it was voted on for nearly 300 years by a large majority of English MPs. If we can thole that for 300 years, surely the English can thole the problem for a few months or years more. To try to solve it by changes to the Standing Orders—as others have said, creating two classes of MPs—is the wrong way of going about it. Others have said, and noble Lords have heard me say time and again in this Chamber, that we need a coherent and comprehensive look at our constitution through a convention or a royal commission. I think that we should move towards a federal, or quasi-federal, system. I said this when the Liberals were being quiet about their policy. I am not saying that there should be an English Parliament, or English regions, or a bit of both; that is for the commission to decide, as it consults widely and listens to people.

I am pleased that the noble Lords, Lord Maclennan and Lord Hennessy, in their excellent contributions, said the same thing—if the three party leaders can come up with a vow overnight, surely they can come up with an agreement in a week to set up a constitutional commission. It could be up and running now. That would make the English feel happier that we are addressing the question and we are under way. I hope that each of us, in our own party, will try to twist the arms of our leaders. I have been twisting the arm of my noble friend Lady Royall—she made a brilliant speech, all of which I agree with—that the Labour Party should go ahead with this and encourage the other parties to go ahead with it as soon as possible.

Such a convention could and should also look at the reform of this place and move towards what Ed Miliband described at the party conference as,

“a senate of the nations and regions”—

SONAR. I like the French system of choosing the senate, where grands électeurs—all the elected representatives in each of the départements—choose their senators. There are many other suggestions that can be put to the constitutional commission.

No one supported the status quo in the referendum. I did not hear anyone argue in favour of that. Unless we heed the call and realise the disaster that has been avoided, we will find ourselves facing another referendum. I hope that I will not shock my noble friend Lady Liddell of Coatdyke, the Secretary of State emeritus, but if we do face that, and if there have been no changes at the United Kingdom level, even I would be tempted to vote yes in that referendum. That is an indication of the problem that we face. We should all be warned that we need to change. We need radical change. The status quo is not an option.

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[Lord Wallace of Tankerness]

I was coming on to the question of English votes for English laws. I do not believe that English votes for English laws is an answer to the whole question of devolution within England; I think that that point is accepted. As my noble friend Lord Tope said, it is not a question of if—it must be a question of how. Moving on to the point raised by the noble Lord, Lord Blencathra, and numerous contributors to the debate with regard to English votes for English laws, I was going to say, “Over the last few weeks,” but my noble friend Lord Macgregor reminded us that the issue was live when he entered the House of Commons in 1974 and my noble friend Lord Lexden reminded us that it was live when Mr Gladstone and Joseph Chamberlain were in the House of Commons. This matter has generated debate and questions for well over a century. The welcome transfer of powers to Scotland, Wales, Northern Ireland and the London Assembly, and the prospect of further devolution have created not just an anomaly but a complex one. The asymmetric devolution of powers to these bodies makes the issue of which MPs’ constituents are affected by which laws a highly varied one. It is not a simple question with an easy answer, but we nevertheless should seek an answer, as my noble friend Lord Macgregor said. It is a question of fairness.

Each of the three main UK parties in the United Kingdom Parliament has expressed its views on the West Lothian question. This House has considered the issue. We have had the views of the McKay commission and reports such that of the democracy taskforce. My right honourable friend David Laws has noted that a grand committee should be appointed proportionately to vet laws that will apply only in England, joined by Welsh MPs when matters affecting Wales are debated.

The noble Lord, Lord Elis-Thomas, mentioned that Bills have a territorial extent. I know that my own Office of the Advocate General looks at all Bills with regard to whether legislative consent Motions will be required in Scotland. It can be complex. The Marine and Coastal Access Bill in which I took part is an example that was referred to by my noble friend Lord Greaves. Although my noble friend Lord Blencathra said that it could be relatively easy, I remember when the legislation was going through the House of Commons with regard to the increase of tuition fees under the Labour Government. When that passed, I was the Minister with responsibility for higher education in Scotland and I knew full well that that had far-reaching consequences for Scotland, which led to the Further and Higher Education (Scotland) Act 2005. It is not always easy. This matter deserves careful consideration.

[Lord Foulkes of Cumnock]

The noble and learned Lord is absolutely right. Will he deal with the point that I raised that, for more than 300 years, until 1999, all Scottish legislation—on education, on health and on the legal system—was dealt with by this Parliament by a majority of English, Welsh and Northern Irish Members?

[Lord Wallace of Tankerness]

The noble Lord is right. That was one of the reasons we established the Scottish Parliament. It is a matter which I think ought to be addressed—and far better that it be addressed where there is cross-party working and consensus-forming. That was the basis on which we established the devolved Administrations, and I do hope we can work on a cross-party basis to address this important issue as well.

Scotland: Devolution Commission

Lord Foulkes of Cumnock Excerpts

Wednesday 22nd October 2014 Lords Chamber

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what progress has been made by the devolution commission, chaired by Lord Smith of Kelvin; and when they expect it to report.

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

My Lords, the noble Lord, Lord Smith of Kelvin, has already done his work and is today chairing the commission’s first plenary session. All of Scotland’s five main parties are taking part in this process. There is a clear timetable for the work and an opportunity for people across Scotland to participate. The Smith commission will produce a heads of agreement report by 30 November this year.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am grateful to the Minister for his Answer. However, does he agree with me that the Smith commission should not operate on the basis of party horse trading but on principles, particularly the principle that each power devolved should be appropriate to be exercised at that level, and that Holyrood should be given tax-raising powers sufficient to enable it to raise enough money to cover the expenditure for which it is responsible?

[Lord Wallace of Tankerness]

My Lords, I agree with the noble Lord that this should not be a question of horse trading. Ahead of today’s meeting the noble Lord, Lord Smith, indicated that he believed that there would be a will among the parties to reach agreement. I do not think that it would be appropriate for the Government to dictate to the Smith commission what the principles should be, although I do think that the noble Lord makes an important point about principles. The one important, fundamental principle is that all five parties should work to strengthen the Scottish Parliament within the United Kingdom. On 18 September, the people of Scotland voted for Scotland to remain part of the United Kingdom, and that is a principle we cannot lose sight of.

Scotland: Independence

Lord Foulkes of Cumnock Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am pleased once again to follow the noble Lord, Lord Forsyth. I will not follow his line of argument, although I agree with almost all of it. I am also not going to use this opportunity to advocate once again the case for a constitutional commission or convention because that case has increasingly been accepted. My noble friend Lord Richard and a number of others indicated that today.

No, I will spend the whole of my speech on one thing and one thing alone: paying personal tribute to someone I have known for almost 40 years, someone whose cunning and chutzpah are unrivalled in British politics, someone who—by his skill, ability and yes, his courage—has turned himself from a little-known Royal Bank of Scotland oil economist into the First Minister of Scotland with a vice-like grip on the SNP, the Scottish Parliament and all that is happening in Scotland today. You may wonder why I will do this. The reason is very simple. Over the past decade, no other person has had more influence on what is happening in Scotland —and the United Kingdom as far as constitutional matters are concerned—than Alex Salmond. Yes, he has a great team—Kevin Pringle, Stephen Noon and many others—but he brought these clever people in and has made sure that he has this control. His combination of cunning and gall has outfoxed politicians in both Holyrood and Westminster, resulting in this referendum that could break up the United Kingdom—as someone else said earlier, the most successful economic union the world has ever known.

Let me elaborate on the astonishing way Salmond has done this. First, in the election of 2007 the SNP won only one more seat than Labour. They were a minority Government and they won that last seat by 40 votes. Yet even before that, Salmond had a plan to announce himself, as soon as he had one more seat, as the First Minister of Scotland. He had hired a helicopter to fly him to the gardens of Prestonfield House Hotel, where he had set up in presidential style a podium to announce that he was going to be the First Minister. There was no discussion, as we had at the last general election in the United Kingdom; no Queen to go to, to say, “Can I get together with other parties and form a coalition?” There was nothing like that at all. In fact, if you read Five Days in May by my noble friend Lord Adonis, you will see that people in our party were worried after the last election that someone else might “do a Salmond”, as it was called. When he did that our party—for instance, my noble friend Lord McConnell —was so shell-shocked, and other parties so taken aback, that they accepted it. Therefore, through chutzpah alone, Salmond announced himself as First Minister of Scotland; and all of us in other parties were left open-mouthed.

We come then to the Edinburgh agreement, on which my noble and learned friend Lord Morris did a wonderful demolition job. I will add to that: why did winning the Holyrood election, getting 44% of the vote, give the mandate to Alex Salmond to have the agreement with Cameron that there was going to be a referendum? We, the Labour Party, controlled the majority of Westminster seats in Scotland. It did not get 50% of the vote; he assumed that there was a mandate and Cameron accepted that. We all accepted it; I say to my noble and learned friend Lord Morris that we should not just blame the Prime Minister. That means that we ended up with Salmond choosing the question—all right, it was amended slightly by the Electoral Commission—choosing the date and choosing the electorate. He had total control over what was happening. He did that through his cunning. That is why we must admire him; that is why I pay a personal tribute to him.

Look at what is happening now. The first point I want the Government, all noble Lords in this Chamber and everyone in the Chamber down the Corridor to learn is that, once again, Alex Salmond is threatening to do exactly the same thing with this draft constitution. As my noble friend Lord Robertson said, it includes the question of getting rid of Trident. What does that have to do with the constitution? It includes things such as vital social services. What does that have to do with the constitution? Why is he drafting a constitution? It is because in the—I hope—unlikely event of a yes vote, he wants his constitution to be the agenda: he wants to set the agenda. He is already saying that the Holyrood Parliament will decide all these things. As the Minister has indicated on many occasions, constitutional affairs are a reserved area. Yet if Alex Salmond has trumped us on two or three occasions previously, is he not going to do it again, unless we are ready to make sure that he does not, in the unlikely event of a yes vote?

I will take no more of noble Lords’ time except to say that we must not underestimate Alex Salmond. I think that we are on course to victory—we have the right arguments—but we have to be very careful indeed. One of the things said by the noble Lord, Lord Forsyth, which I agree with, is that united we stand, divided we fall. Over the next 85 days we have to put every effort into this campaign. We must not underestimate Alex Salmond, because his cunning, chutzpah, skill, courage and gambling instinct could undermine us once again. We need to be united to make sure that he does not use those to break up this United Kingdom.

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[Lord Cormack (Con)]

My Lords, I feel that this is rather the graveyard slot. Those who have delivered their speeches have departed to refresh themselves, while a few are waiting to enlighten us. Having listened to every single speech, as has my noble and learned friend Lord Wallace of Tankerness, to whom I pay a real tribute for his stamina and resilience, I might be tempted to go and have a little refreshment later myself.

Whether I am driving along the lovely lanes of Lincolnshire, as I was last week, or driving in Scotland, where I spent the whole of the war as a young boy, growing up—

[Lord Foulkes of Cumnock]

Which war?

[Lord Cormack]

Not the First World War, like the noble Lord opposite; I cannot claim to rival his longevity. But whether I am driving there or in Scotland, I feel, in the words of Walter Scott, already quoted by the noble Lord, Lord Purvis:

“This is my own, my native land!”.

I am British. My family comes originally from Scotland. My elder son, known to the noble Lord, Lord Purvis, is settled in Scotland and I do not think will ever leave, and my eldest grandchild will have a vote on 18 September. I deeply regret that I shall not have one. But I very much hope that she, along with the other enfranchised 16 year-olds, will vote a resounding no, and I am confident that she will. She spent some time with us a fortnight ago and we were talking about this. In her school in Edinburgh, they had had a poll of all the girls, and 90% had voted no. In the boys’ school next door, she was slightly disappointed that it was only 88%. That gave me some real encouragement. Like the noble and learned Lord, Lord Morris of Aberavon, I regretted the way in which Mr Salmond wound the Prime Minister around his finger in getting the 16 year-old vote, but I had some reassurance from what she told me. When I asked her why, she said, “Because we don’t want to cut off our opportunities”—and that, in a sense, is what it is really about.

I have talked before in this House about the difference being between remaining in a Great Britain or in a little Scotland. Of course, Scotland could be independent and go it alone, but we would be deprived—and I believe that my friends and family in Scotland would be deprived—if they did that. I profoundly hope, as I think virtually everybody who has spoken in this debate hopes, that they will not.

Only 9.1% of the population of the United Kingdom lives in Scotland. I will not repeat all the lists of Prime Ministers, economists, scientists and writers who have been referred to this afternoon. But if any part of any country has punched above its weight, Scotland, which is a nation, has punched above its weight in the United Kingdom—and I want it to continue to do so.

In 1984, I had a very interesting experience during the long Summer Recess from the other place. I spent a semester at the University of Austin in Texas. It was the time of the presidential election and a number of the cars that were driving around had a little sticker on the back that said, “Secede”. I said to my Texas host, “Some of them talk as if they mean it”. “Oh”, he said, “that’s just the heart expressing itself—the head knows that it would be total madness”.

Much as I respect those who have a different point of view, I hope that those who are contemplating voting yes in September, and still more those who have not yet made up their mind, will reflect on what a great country this is—and it is a great country because of the contribution from Scotland, which is way beyond its percentage of the population. I very much hope that there will be a resounding vote on 18 September, and that the people of Scotland will say that, yes, they want to remain part of the United Kingdom. I do not want my granddaughter to become a citizen in a foreign land, and she does not want her cousins—the children of my other son, who live in London—to be foreigners, with different passports.

Somebody talked about borders. I had the great good fortune to be the chairman of the Northern Ireland Affairs Select Committee in the last Parliament, and I saw the difficulties created by a border there. Unless you have absolute similarity between taxes and revenues, what it does among other things is to encourage organised crime, which is a very real cross-border problem between the Republic and Northern Ireland. I rejoice at the settlement, and I am not one of those who feels deeply unhappy about Her Majesty receiving Mr McGuinness; we have made enormous progress. But the fact is that there are two countries on one island and there is a border, and that creates problems. We do not want to have that here.

We have to recognise that we are exceptionally fortunate. My noble friend Lord Forsyth of Drumlean, and the noble Lord, Lord Foulkes, whom I regard very much as a friend in the context of this and many other issues, pointed to the brilliance of Alex Salmond. I referred to that before in this House. But we need to have robust debate, and what he has been saying is very misleading. We have had many examples, quoted during the last three and a half hours. Salmond’s approach really is that of eating the cake and having it, to put the phrase the right way round. I have often thought, particularly over the past few weeks, of the reputed remark of the great conductor Richter to the third flute, “Your damned nonsense can I stand twice or once, but sometimes always, by God, never”. The people of Scotland are being misled. As my noble friend Lord Forsyth said, they are being asked to take a leap into the dark. It is a step into the unknown.

Of course, many have talked about changes that will come about. Like my noble friend Lord Forsyth, I was against devolution but that is all over now and we have to make it work, and make it work even better than it has done—of course we have. However, it would be a constitutional and a political tragedy if we were all in this United Kingdom plunged into the uncertainty that a yes vote would create. I devoutly hope and pray that it will be a no vote and an emphatic one, and that we can more warmly embrace each other across the border. I hope that it will not become an international border, and that we can continue to recognise the enormous importance that Scotland has and the enormous contribution that it makes to this United Kingdom of ours. Long may that United Kingdom flourish.

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[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part. It has been a remarkable debate in the quality of the contributions. Indeed, as in some of our earlier debates on this subject, we have had a range of very thoughtful contributions from noble Lords on all sides of the House, from all parts of the United Kingdom—Scotland, Wales, Northern Ireland, England and, indeed, Cornwall. That has enriched our debate.

One of the most important things that came through was the number of people who talked of their own experience. The noble Lord, Lord Soley, talked about working in Scotland as well as in England. The noble Lord, Lord Judd, talked about his family and what makes him what he is—a product of this United Kingdom. My noble friend Lord Dobbs said that he was a full-blooded Englishman but nevertheless has a great affection for and affinity with what we have achieved as a United Kingdom.

My noble friends Lord Glasgow and Lord Purvis and the noble Lord, Lord Kerr of Kinlochard, said that what they so much regret about the referendum debate is almost having to choose between being British and Scottish, whereas most of us think we can be British as well as Scottish—and indeed, European—whatever part of Scotland we come from. The noble Lord, Lord McConnell, talked about the strength and diversity within the United Kingdom. In spite—or perhaps because—of that diversity, we are a United Kingdom. We can celebrate the diversity and our unity.

I particularly thank my noble friend Lord Lang of Monkton for his reprise of the recommendations of the Constitution Committee’s very valuable report on the constitutional implications of the referendum and, specifically, of a yes vote. The Constitution Committee of your Lordships’ House has a well deserved reputation for full and detailed examination of key constitutional debates that we face in the UK. This latest report discussed in today’s debate is no different.

As I indicated in my opening speech, we will offer a full written response in advance of the due date of 16 July. The noble Lord, Lord McConnell, asked about that. I understood that the noble and learned Lord, Lord Morris, might have thought that that was a response to the McKay commission, so I make it clear that it is a response to the report that we are debating today.

I will offer a few reflections on behalf of the Government because the report rightly highlights that the constitutional stakes could not be higher. A yes vote in September would have a profound impact not just on Scotland but on people right across the United Kingdom. Those implications would be far-reaching and would extend far beyond constitutional points—to the economy, our place in the world, and our relationships with one another across these islands.

However, as the committee notes, at its very core the implications are set out in law; and it would be to the law that we would have to turn. Successive Governments have been very clear that it is for people in Scotland to decide if they wish to remain a part of the United Kingdom, or if they wish to leave and go it alone. That is why I say to the noble and learned Lord, Lord Morris of Aberavon, who indicated that the Welsh were not involved in the agreement signed in Edinburgh in October 2012, that it has been the view of successive Governments that if the people of Scotland wish to leave they should not be held in the union against their will. That was the background to the agreement.

However, as my noble friend Lord Purvis pointed out, it is one of the strengths of the union that, because we have established the rule of law and the basis of democracy, we are confident that these matters will be determined through the ballot box and not through means by which other countries in history have sought to claim their independence.

The referendum on 18 September will determine this question. I say to my noble friends Lord Shipley and Lord Caithness that, in a debate where both sides are almost invariably at odds with each other, the one thing that the two Governments have never disputed is that there should be only one referendum. It is important to recognise that if Scotland votes yes on 18 September it will be not only for Christmas, as one noble Lord said in his contribution, but decisive. The agreement reached was intended to be decisive and would be respected. The noble Lord, Lord McFall, asked whether that was set down when it was signed up to. In fact both Governments have said that it would be a decisive referendum that would be respected by both sides. Therefore one would expect that a no vote would be respected by those who have campaigned for a yes vote.

However, as the committee notes at paragraphs 38 to 43, if there is a yes vote, legislation delivered through this Parliament will be required to take Scotland out of the United Kingdom and to establish a new, separate state. I shall come later to the point raised by the noble and learned Lord, Lord Hope. The committee recognised that the extent and scope of that legislation may be very limited. Many subsequent orders will be required but the legislation itself could be quite limited. Much will depend on the agreement reached.

As I have said in your Lordships’ House on a number of previous occasions, these negotiations cannot begin in advance of the referendum as we must not pre-empt the outcome of the negotiations. To do so would require the United Kingdom Government to put themselves in the shoes of a Government of the continuing United Kingdom minus Scotland. It would require the United Kingdom to act in the interests of only one part of the United Kingdom rather than the whole of the United Kingdom. To do so in advance of a referendum would be to deliver exactly what the nationalists want—a United Kingdom that excludes Scottish interests and acts only in the interests of England, Wales and Northern Ireland. That is the reality of independence: it means that there will be two separate states, and where you have two separate states you have two separate sets of interests. Sometimes they will be mutual, sometimes not.

Later in the committee’s report the question of who should make up the negotiating team for the rest of the United Kingdom was raised. As someone who has represented a Scottish constituency in the United Kingdom Parliament as well as in the Scottish Parliament, and as someone who will continue to be resident in Scotland after the referendum, whatever the result, I find the report’s recommendation on the role of Scottish representatives and the exclusion of those who would have a conflict interest very compelling.

I turn now to the points highlighted by the committee, including representation of Scotland within the UK Parliament and by the UK Government in the period between a referendum which endorsed a yes vote and independence day. In paragraphs 56 to 58 of the report the committee raises the risk of constitutional limbo. This issue was raised in his introductory speech by my noble friend Lord Lang, by the noble Lord, Lord Kerr, and by the noble and learned Lord, Lord Cullen of Whitekirk. I have looked back at the context in which my right honourable friend the Secretary of State for Scotland answered that question. It was in the context of negotiation, whereas, as I have just said, you cannot have negotiations where there are different sides of the argument.

However, to make it clear, during any negotiations Scotland would still be part of the United Kingdom and public services would be delivered as they are now. This means that the Scottish Government would continue to be responsible for health, education, justice, rural affairs, housing and transport in Scotland as well as the other devolved matters, and the United Kingdom Government would continue to be responsible for reserved matters. I do not think that the noble and learned Lord expected the Electoral Commission statement to contain the whole list of Schedule 5. However, the key ones are there and there is nothing sinister about the ones that were mentioned or not mentioned. The United Kingdom Government would continue to be responsible for reserved matters, including defence, security, foreign affairs and the constitution, plus pensions, benefits and most tax powers up to the date when Scotland became an independent state.

During the negotiations, the two Governments would continue to discuss any policies of either that affect the responsibilities of the other. Equally clear is the reality that a vote to leave the United Kingdom is a vote to leave its institutions, including the Houses of Parliament. The timing of any changes would have to be settled in the event of a vote for independence.

I sincerely hope that there is a clear endorsement—a view expressed by all noble Lords with the exception of the noble Lord, Lord Elis-Thomas—of Scotland’s place in the United Kingdom. If there is not, that is when the negotiations will begin. I suspect that they will take as long as necessary to ensure that both sides are content, rather than fitting neatly into a timetable laid down by the Scottish Government. I hope that that answers the question raised by noble friend Lord MacGregor. The noble Lord, Lord Robertson, with his experience of negotiating seven NATO entries, indicated that that was not by any means an easy process. As the noble Lord, Lord Kerr of Kinlochard, pointed out, as did my noble friend Lord Garel-Jones, negotiation of entry into the European Union is by no means a straightforward matter either.

As people have said before, it is the deal in any negotiation that is important and not the date. With regard to the negotiations themselves, as the Constitution Committee report notes, the starting point for them is predetermined by the legal position that underpins all of this debate. The first of our Scotland analysis papers dealt with the legal and constitutional position of Scotland within the United Kingdom and the implications of independence. This was the right place to start, because it is from the law that political realities and experiences will flow. The legal reality is clear: the rest of the UK would be the continuator state in the event of independence. Scotland would leave and become a new successor state. I welcome the committee’s clear endorsement of this position in the first of its conclusions.

This key legal point has a number of ramifications. The United Kingdom would continue to be a member of all the international bodies to which it is currently party: the European Union, permanent membership of the Security Council of the United Nations, NATO, the G7 and the G20. As a new successor state, Scotland would need to apply for and seek new terms of membership. Those negotiations cannot in turn be prejudged in the way that the Scottish Government and advocates of independence seek. As has been pointed out in this debate, 28 member states of the European Union, each of which will wish to protect and represent the interests of its citizens, will have to sign up to these negotiations. Many of these states have had to accept terms of EU membership from which the Scottish Government expect to be exempt.

In the previous debate I did not wish to seem dismissive of the points made by the noble Lord, Lord Kerr of Kinlochard. I hugely respect the experience that he brings to these matters, but it would not be right to speculate on how negotiations could work. Previously I perhaps raised an eyebrow more with the idea that the Scottish Government would find it acceptable for the United Kingdom Government to negotiate on their behalf: I just think that you need to say that there could be some political issues around that, but I certainly do not dismiss lightly what the noble Lord, with his experience, says.

As I noted at the start of today’s debate, the Government will respond in full to the committee’s recommendations, ahead of the response deadline. I hope that I have given some indication of our likely response to some of the key points made by the committee and repeated during this debate, and a clear sense of the approach that the United Kingdom Government are taking on these issues.

I turn to some of the other points that have been raised. In reference to the Edinburgh agreement I indicated that it is one wherein the United Kingdom and Scottish Governments agreed to work together to ensure that the referendum on Scottish independence could take place on a legal basis. I think that the noble Lord, Lord Foulkes, thought that we had been tricked into it. Noble Lords might want to think about this for a moment. With the SNP having won—with a manifesto commitment to a referendum—a majority of seats in the Scottish Parliament, in which the noble Lord, Lord Robertson, and I have some responsibility for the electoral system used, neither of us or many others thinking that any party could win a majority, it is not unreasonable that the referendum was facilitated. I rather think that Mr Alex Salmond, with the cunning wiliness referred to by the noble Lord, Lord Foulkes, hoped that the United Kingdom Government would say no and give him ever more of a grievance.

[Lord Foulkes of Cumnock]

A 45% vote on a 50% turnout is not an overwhelming mandate. I am not saying it is overwhelming in one direction or the other but it is arguable that it did not provide the mandate and there could have been further discussions. I also said that in the discussions the UK Government seem to have conceded on every issue—issue by issue.

[Lord Wallace of Tankerness]

My Lords, I do not accept that. In a PR election, to win an outright majority of seats—the political reality was that there was an expectation that if we had sought to thwart that, it would have played into their hands. There was the possibility that they would have run their own referendum, which we would have argued was not legal, and we would have been embroiled in a constitutional mire. The fact is, there is a binary question, yes/no, but I rather think that some in the nationalist cause would have liked to have muddied the waters with a third question and allowed us all the time to negotiate among ourselves what the third option would be, thus taking our eye off the ball and not tackling the main issue, which is whether Scotland should be an independent country.

The noble Lord, Lord Birt, made important points about the BBC. As the committee indicates, that is one of the institutions that would belong to the continuing state. He highlighted the detriment that Scotland leaving the UK would cause the BBC: 10% less funding for BBC programmes and for the rest of the UK. He also pointed out, importantly, that of course the BBC is independent of government and any negotiations it had with the Scottish broadcasting service would be akin to the kinds of negotiations that I am sure it has with many other national broadcasting companies throughout Europe and the rest of the world. Unlimited access to BBC services in an independent Scotland would cost money, and it is naive and indeed misleading for the Scottish Government to pretend that everything would just go on as before.

The noble Baroness, Lady Adams, asked about English universities. Access for Scottish students would be the same as for those from other European Union countries. The other thing that is slightly odd is the Scottish Government trying to pretend that English students coming to Scottish universities could be treated differently from those from other European Union countries.

[Lord Wallace of Tankerness]

Indeed, if Scotland was a member of the European Union, they would be treated the same as everyone else from there; if it was not, they would be treated the same as international students from India or wherever. Of course, if Scotland were to be part of the European Union—a point that I think the noble Lord, Lord Foulkes, is about to latch on to—the idea that you could allow free tuition for students from every other European Union country and charge English students does not have any sound basis. It is difficult to say that you want to enter into a social union with other parts of the United Kingdom but one of the first things you do is charge its students when you are not charging anyone else.

[Lord Foulkes of Cumnock]

I know it is difficult but it has already been said. Mr Salmond has said that they would not get free tuition—that English, Welsh and Northern Irish students would not be treated as other European students. That is what we are facing. We are doing everything by the book. We are treating these matters honourably. People on the other side of the discussion are not.

[Lord Wallace of Tankerness]

My Lords, there is such a thing as the European Court of Justice, and anyone who attempted to fly in the face of what most people would think of as accepted European Union law may find that the law caught up with them.

My noble friend Lord Cormack and the noble Baroness, Lady Adams, talked about their grandchildren and how they do not wish to see opportunities cut off and cannot understand why we would want to build barriers. That has been reflected in many schools, where there have been substantial no votes. It shows that in an era when young people can communicate so easily, when the communication barriers have been broken down because of modern technology, the idea that you would start erecting barriers is something that many of them just cannot comprehend. That is a great strength for our union as we look forward.

My noble friend Lord Caithness asked about the draft Bill. I confess that we have not yet done any analysis of it. My noble friend Lord Lester of Herne Hill, however, was telling me the other day that he has already identified two or three inconsistencies with the European Convention on Human Rights, and if my noble friend has identified them, that probably means that they are right. It is not a very good start for a constitution if it seems to fall foul of the European Convention on Human Rights.

The noble and learned Lord, Lord Hope of Craighead, raised the question about whether it could be a Section 30 order. It is clear that independence cannot just be asserted. The terms of an agreement reached between the representative of an independent Scotland and a continuing UK would have to be that: an agreement. I have already indicated what the position would be with regard to the period between the date of a referendum if there were to be a yes vote and the date of independence, and all the responsibilities that the United Kingdom Government would have. The quote that I gave was a direct quote from the statement given jointly by both Governments to the Electoral Commission, so the Scottish Government themselves have signed up to that.

The noble and learned Lord, Lord Cullen, made a point about how long it took to get that agreement, and that was just an agreement to make a statement. That might put into context how long it might take to negotiate an independence settlement. If Scotland chooses to leave the United Kingdom, it must be prepared to do so whatever the terms, because the terms cannot be known in advance.

As the report of the Constitution Committee indicates, there could be possible difficulties with a Section 30 order if it was challenged in the courts that the use of the Section 30 order had gone beyond what Parliament intended an order to do—if it were bringing in independence when in fact that was clearly never the intention of Parliament.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, of course the Executive are answerable to Parliament. That is self-evident, as we well know. It is impossible to speculate on this because we do not actually know what the terms would be. I am just confirming that there would have to be legislation. I cannot speculate about what would be in the legislation because I have no clue what kind of negotiations there would be or what agreement would be reached. To try to speculate would go against the grain of what we have said about there being no pre-commitment or pre-negotiation.

[Lord Foulkes of Cumnock]

I am sorry to keep everyone but this is a very crucial matter—as the noble Lord, Lord Forsyth, indicated. The noble and learned Lord, Lord Wallace, has said that the Government have not yet considered fully the terms of the interim so-called constitution drafted by the Scottish Government. Perhaps he could tell us today that the Government will look at that, and report back to this House on it, and then we can have a further debate. We really must consider this. As I said in my speech, we are getting bounced into one thing after another. We should be damned sure that we are not bounced into this one.

[Lord Wallace of Tankerness]

My Lords, we certainly shall look at it, although whether we can have a debate between now and the House rising I just do not know. However, I hope we are not confusing two things. Of course, a constitution would be a matter for the independent Scotland. It would post-date independence. I think the noble and learned Lord, Lord Hope, talked about an interim Bill, and that was what was being discussed.

Scotland Act 1998 (Modification of Schedule 5) Order 2014

Lord Foulkes of Cumnock Excerpts

Wednesday 7th May 2014 Grand Committee

[The Duke of Montrose (Con)]

My Lords, I thank the noble and learned Lord the Minister for so fully explaining the ins and outs of these various additions to Schedule 5. On the question of bringing these regulations into line one with the other, I was interested to hear about the devolving of zootechnical feeds and items like that, but the notes to the order talk about some elements that are quite difficult to get one’s head round, such as medicinal products for use in animals that are not veterinary medicinal products or feed additives. First, will the regulations now work in the same way both in England and in Scotland? Secondly, I understood that all of these subjects were controlled under the Veterinary Medicines Directorate in practical terms. Does this mean that the Scottish Parliament will now need to set up its own Veterinary Medicines Directorate because the regulations devolve the matter to the Scottish Parliament?

[Lord Foulkes of Cumnock (Lab)]

My Lords, I join in the thanks and appreciation to the Minister for the excellent way in which he introduced this order today. He always does this; we are not surprised in any way when he does it so expertly and we are really grateful to him. I wanted to raise two points. I am afraid that I do not have the detailed knowledge of food and agriculture possessed by my noble friend the Duke of Montrose, so my points are more technical.

First, I have a general point. I am increasingly concerned that this Parliament is seen by some people as merely a rubber stamp for the Government and that all the Government need to do is to bring something before both Houses in this Parliament and it will be agreed on the nod. Too many things are going through on the nod. I sit in the Chamber and think, “Why are we agreeing to this? Why are we not discussing it? Why are we not debating it?”. Do we not have the time? Yes, we do. We have been in recess for four weeks. We could have been discussing and debating issue after issue, point after point. Of course the Government like to get things through on the nod, but that is not part of democracy. We can see democracy being challenged elsewhere in the world, so we should be upholding it and making sure that Parliament’s role is appreciated. Every issue, however detailed it is, deserves proper consideration by both Houses of this Parliament.

Like other noble Lords, I go around the country as part of the Lord Speaker’s excellent Peers in Schools initiative to spread the word in schools about the House of Lords and its role, and I find it very useful. I talk about the three roles of the House of Lords: legislation, challenging the Executive, and holding debates. But I must say that more and more I feel like a fraud when arguing that case if the House has not sat for four weeks. It now looks as if we will not be sitting for another three weeks in the run-up to the Queen’s Speech. It is quite wrong that Parliament should meet so infrequently in order to challenge the Executive. That was the first point I wanted to make. I am sure that it is not something the Minister and his officials will have anticipated, or if they have, they have been very clever and deserve degrees in clairvoyance, if nothing else.

My second point relates to the devolution settlement. The Minister said that this order shows that the devolution settlement is working in a practical way. Perhaps I can say that I agree with him absolutely, and it is what we should be shouting from the rooftops: devolution is working. It has provided an opportunity for Scotland to make decisions about its own affairs on all the matters that affect Scotland in particular, and it is working really well. The traditions of Scotland and its legal system, on which the Minister is one of the experts, have managed to continue for over 300 years in spite of the existence of the United Kingdom and the Treaty of Union. If anyone is worried that I am straying from the subject before the Committee—my noble friend Lord Rosser has just a slight inclination that I might be doing so—this will bring me back. The Minister mentioned European Union food safety laws. Let us imagine the problems that would arise on a whole range of things if Scotland was to become a separate country from the rest of the United Kingdom. It would raise all sorts of questions about the transfer of foodstuffs across the border. It is just one of not hundreds, but thousands, of issues where greater problems would be created if Scotland was to be a separate country.

While not wanting to put words in his mouth, I hope the Minister will agree that the devolution settlement is flexible and working well. Almost every time the Grand Committee meets, there seems to be some kind of order relating to Scotland to be considered, tweaked and improved so as to get devolution working even better. This shows that the devolution settlement is flexible, workable and practical, and that it can and will be improved as long as Scotland remains part of the United Kingdom.

[Lord McAvoy (Lab)]

My Lords, as usual it is a pleasure to try to follow my noble friend Lord Foulkes and we shall see how I get on with that. I should like to place on the record my sincere appreciation for the Minister and his team on the usual high-quality briefing and willingness to discuss matters. As it happens, the briefing was so good that it did not require any further meetings.

It is interesting that the noble Earl, Lord Mar and Kellie, mentioned how this is working but was not as fulsome as my noble friend Lord Foulkes in paying tribute to the devolution settlement as actually being good enough to work in the current atmosphere. It is interesting as well that objections are coming from the Scottish National Party about the fact that Westminster deals with issues such as this and brings forward statutory instruments to put into effect sensible and common-sense measures, but the main reason that this order has been brought forward is a ruling from the European Union. It is funny how the SNP objects to Westminster but does not object to the European Union, although some of us have always had reservations about the amount of regulations coming from Europe.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have participated and thank them for the welcome they have given the order. My noble friend Lord Mar and Kellie was absolutely right to remind us of the importance of the food industry in Scotland and the importance of maintaining its quality.

My noble friend the Duke of Montrose raised some technical issues. He asked whether, following devolution of zootechnical feed regulation, matters would work in the same way in England and Wales as in Scotland and whether it would be necessary for Scotland to set up its own veterinary medicines directorate. Veterinary medicines will continue to be regulated by Defra. It is because certain items in the EU definition were removed from the definition of veterinary medicines that we are having to make this adjustment. Veterinary medicines will continue to be regulated by Defra—in practice by the Veterinary Medicines Directorate—and so the system will be the same in England and Wales as it is in Scotland. Non-medicinal zootechnical issues will be devolved, but that will be about implementing European Union law, and there will therefore still be consistency north and south of the border.

[Lord Foulkes of Cumnock]

The Minister made a point in relation to the question from the noble Duke, the Duke of Montrose. Can he confirm that the work undertaken by Defra, in Scotland as well as in England and Wales, is one of the many things that would have to be torn apart if Scotland separated from the rest of the United Kingdom?

[Lord Wallace of Tankerness]

The noble Lord makes a very alert and important point. The Veterinary Medicines Directorate is a directorate of the United Kingdom Government and would not automatically be transferred or shared in the event of a yes vote—which I hope will not happen. It is yet another example of one of the many institutions and agencies which operate on a Great Britain basis. I believe they operate successfully on that basis.

In response to the noble Lord, Lord Foulkes, Parliament should certainly not just be a rubber stamp for the Government. It is important to put on record that the process we are following here is set out in a law passed by Parliament. As I have indicated, this order has been debated in the House of Commons and approved by it. The fact that we are having a debate on it is very healthy and right and proper. The issue is, indeed, technical but nevertheless the debate has offered noble Lords an opportunity to express their views and to ask some very pertinent questions.

I certainly agree with the point made by the noble Lord, Lord Foulkes, which I think was echoed by the noble Lord, Lord McAvoy, and my noble friend Lord Mar and Kellie, that this is an example of the devolution settlement working. I think that it is a very good example of that. It is a technical issue but it shows a willingness to address practical issues in a practical way as and when they arise. Under the previous Administration, a certain amount of executive devolution was achieved on these issues through a Section 63 order. However, we now have a position whereby the Scottish Government have decided to establish a new food body for Scotland which will take on the roles and responsibilities of the UK-wide Food Standards Agency. Therefore, there is legislation going through the Scottish Parliament and a Bill has been drafted to sit within the limited sphere of legislative competence in relation to food and animal feed as set out in the 1998 Act. If this House passes the order—it will also need to be passed by the Scottish Parliament and then submitted to Her Majesty in Council—the Scottish Government intend to seek an amendment to widen the scope of the Bill to bring it in line with the scope of the existing food and animal feed law, as amended by this order. Therefore, the issue is of practical relevance given that the Bill is currently before the Scottish Parliament.

We have shown good will in negotiations and discussions with officials in the Scottish Government, my own department and other departments of the UK Government, not least Defra. That is a good practical example of the flexibility of the system. People refer to the status quo but I do not believe that there is any such thing as the status quo in relation to something which has evolved since 1 July 1999. The system has shown its ability to respond to different circumstances and I sincerely hope will continue to do so as we move forward. I again commend the order to the Committee.

Scotland: Independence

Lord Foulkes of Cumnock Excerpts

Thursday 5th December 2013 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am grateful to the noble Lord, Lord Forsyth, for providing the opportunity to speak on this matter, and for giving such a witty and eloquent introduction. I am only sorry that more of my Scottish Labour colleagues are not down to speak today. I hope earnestly that they are not feeling intimidated by Alex Salmond and his cybernat cronies who constantly attack Members of this House because we are not elected. I have in fact been elected to two councils and to two Parliaments over more than 40 years, as have some other Members who are participating in this debate. Whether they like it or not, this House is part of the UK legislature. We have a continuing responsibility, because what Alex Salmond and his party are proposing affects the whole of the United Kingdom.

Mr Salmond reminds me a bit of the Mad Hatter in Alice in Wonderland: if he says that it is so, then it must be so. His so-called White Paper, which I do not call a White Paper, is not so. He does not have the power to implement the proposals that he is putting forward. Voting yes in the referendum is not an endorsement of all the proposals in the White Paper, and he cannot say that it is.

When he declares independence day unilaterally, as he has done, he ignores the fact that when two parties must make an agreement, the timetable cannot be determined by one side—by one of the parties. When he declares, as the noble Lord, Lord Forsyth said, that a separate Scotland would automatically be in the European Union, NATO and the Commonwealth, he flies in the face of logic and geopolitics, as we have heard recently from Belgium and Spain.

Mr Salmond has declared that a separate Scotland would keep the pound, ignoring that this would need the consent of the rest of the United Kingdom. When he pledges that no controls would be needed at the border between Scotland and England, but promises an open door to immigrants—which would be a different case from the rest of the United Kingdom—he also flies in the face of logic. There are many similar unilateral pronouncements throughout Scotland’s Future, which is 650 pages of continuous fiction. I agree with the noble Lord, Lord Forsyth, that we should have a full day’s debate in this House and in the other House. I have raised that with my party group.

I will quote Voltaire rather than The Jungle Book. He wrote:

“The human brain is a complex organ with the wonderful power of enabling man to find reasons for continuing to believe whatever it is that he wants to believe”.

Alex Salmond is living proof that Voltaire was right.

Scotland: Independence

Lord Foulkes of Cumnock Excerpts

Monday 13th May 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I recall that some time ago, following the election of the present Scottish Government, the previous Cabinet Secretary gave some indication that Scottish civil servants working for the Scottish Government would be expected, as are UK government civil servants, to promote the policy of their Government. Likewise, civil servants working for the Scottish Government, albeit that they are UK civil servants, will be expected to work towards the policy of the Scottish Government.

[Lord Foulkes of Cumnock]

My Lords, will the Minister answer a question that his namesake, the noble Lord, Lord Wallace of Saltaire, could not, and confirm that the Cabinet has taken two decisions: first, that there should be no pre-negotiation with the Scottish Government, which is absolutely correct; and, secondly, that there should be no contingency planning, which is quite wrong, particularly, as my noble friend Lord West said, in the area of defence? Will the issue of contingency planning be reconsidered by the Government?

[Lord Wallace of Tankerness]

My Lords, the Government have indicated that there will be neither pre-negotiation nor contingency planning. I can understand why people talk about red lines and making things clear, but to ask the United Kingdom Government to prioritise one part of the United Kingdom over another would not sit easily with a Government who seek to serve the interests of all our citizens in all parts of the United Kingdom. It is not in the interests of Scotland or of the United Kingdom that we should start to unstitch the fabric of the United Kingdom before the people of Scotland have had their say.

Scotland: Referendum

Lord Foulkes of Cumnock Excerpts

Tuesday 26th March 2013 Lords Chamber

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what discussions they have had with the Scottish Government regarding the arrangements for the referendum on independence.

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

The United Kingdom Government had a number of discussions during 2012 regarding the arrangements for the referendum on independence. These discussions led to the details set out in the referendum agreement on 15 October. As with the agreement, we continue to work constructively with the Scottish Government to ensure that there is a legal, fair and decisive referendum on Thursday 18 September 2014.

[Lord Foulkes of Cumnock]

I am grateful to the Minister for that reply. Have the Minister and his colleagues had time to consider the request from the First Minister of Scotland for the Prime Minister to appear in face-to-face debates on television in the run-up to the referendum? Will he confirm that this request will be completely rejected and that the United Kingdom Government will make it clear that if anyone from the UK Government takes part it should be the Secretary of State for Scotland, his deputy or the Advocate-General?

[Lord Wallace of Tankerness]

My Lords, I have indeed heard the First Minister’s call for a head-to-head debate with the Prime Minister. I also recall the First Minister warning London-based politicians such as the Prime Minister to keep out of the referendum campaign, so he cannot have it both ways. While I accept the challenge and would be delighted to take part, one might also ask whether the First Minister will go head-to-head with the leader of the Better Together campaign, Mr Alistair Darling, who at least has a vote in the referendum, unlike the Prime Minister. However, let me make this clear: the Prime Minister will argue very vigorously for Scotland’s continuing place in the United Kingdom.

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Foulkes of Cumnock Excerpts

Wednesday 16th January 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, the position is that the Referendum Question Assessment Guidelines published by the Electoral Commission in November 2009 set out its approach to reviewing questions for intelligibility. These guidelines state:

“A referendum question should present the options clearly, simply and neutrally. So it should: be easy to understand; be to the point; be unambiguous; avoid encouraging voters to consider one response more favourably than another; avoid misleading voters”.

That is the Electoral Commission’s guidance to the intelligibility question which my noble friend raised; those are the criteria I expect it to apply having regard to weighing up and assessing the question that has been submitted by the Scottish Government to the Electoral Commission. With regard to this question, we have sought to put the position of the role of the Electoral Commission and the role of the Scottish Parliament on exactly the same terms as would be the case if the United Kingdom Government were proposing a referendum, where we put the referendum to the Electoral Commission for its assessment on the same criteria. I will come on to that in a bit more detail in a moment. It will report to Parliament and ultimately Parliament will decide. We are seeking to put the Scottish Parliament in exactly the same position, vis-à-vis the question and the Electoral Commission, as the United Kingdom Parliament would be in any referendum which the United Kingdom Government were proposing.

[Lord Foulkes of Cumnock]

Would the Minister care to give his opinion about the question as currently proposed by the Scottish Government, which is,

“Do you agree that Scotland should be an independent country?”?

All the polling evidence, and one can consult MORI and others on this, shows that this kind of phraseology is biased and leads towards a particular outcome. It therefore fails the test on that basis.

Secondly, the Minister said that the referendum should be decisive. I am not clear what is meant by,

“Do you agree that Scotland should be an independent country?”.

It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my colleagues here, who think Scotland is currently an independent country in many senses. Is it not unintelligible, and therefore not decisive in any way?

[Lord Wallace of Tankerness]

My Lords, the key thing is that the Electoral Commission makes that judgment. I have heard the points made—with considerable conviction—by the noble Lord, Lord Foulkes, and others, but at the end of the day it is for the Electoral Commission to make that assessment. What it thinks about it, having done the testing on it, is far more important than what Ministers in the United Kingdom Government think.

Until relatively recently, I was the spokesperson for the Wales Office in your Lordships’ House and therefore during the referendum on the extension of powers for the Welsh Assembly. I could see at pretty close quarters the work done by the Electoral Commission in framing the question for that referendum—the noble Lord, Lord Wigley, will recall it. I was very impressed—not least because it faced the additional issue of the question being in Welsh as well as in English—by the thoroughness with which the Electoral Commission dealt with that. I was also impressed by the way in which my right honourable friend the then Secretary of State for Wales responded to the terms of the Electoral Commission’s report.

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[Lord Foulkes of Cumnock]

Will the Minister give way on that particular point?

[Lord Wallace of Tankerness]

No—as the noble Countess said, the noble Lord will have an opportunity later, and I will certainly respond. Well, if it is very quick, yes.

[Lord Foulkes of Cumnock]

Does this include whether money can come from overseas sources, as well as total expenditure?

[Lord Wallace of Tankerness]

When I respond to the debate I will give a more detailed response to that, but I think that those arrangements are already there under PPERA.

That is what happened in previous referendums such as the 2011 referendum in Wales on further powers for the Welsh Assembly. In that referendum, the Electoral Commission recommended that the spending limit for designated campaign organisations should be set by reference to the expenditure limits that applied to elections to the relevant legislature. In its response to both Governments’ consultation documents, the Electoral Commission provided its view that the model remains appropriate for the Scottish independence referendum.

The Electoral Commission has also met the parties represented in the Scottish Parliament to seek their views on the financial arrangements. When the Scottish Government set out their final proposals for financing the referendum campaign in their Bill, they must set themselves aside from their own campaigning interests and recognise that their approach is being watched by all of Scotland, and indeed by the wider international community. This is a point which the Deputy First Minister, Nicola Sturgeon, herself recognised when she said that the poll must satisfy the highest standards. It is only right that we use the bar that she has set to determine whether what is proposed is appropriate.

Both Governments agree that the basis for the franchise will be that for the Scottish Parliament elections —that is, those UK or EU citizens who are resident in Scotland. Again, that is set out in the agreement.

In addition, the Scottish Government propose to give 16 and 17 year-olds the right to vote. I recognise and very much respect the fact that there are differing views on this issue in this Parliament and in this House. My party, the Liberal Democrats, supports the principle of 16 and 17 year-olds participating in all elections; our coalition partners do not. Indeed, there are views on both sides of the Chamber on that issue. However, in devolving the power to hold the referendum, we respect that this is a matter which should be debated and determined by the Scottish Parliament.

Indeed, where the Scottish Government and Parliament have the power to hold referendums and elections already, they have chosen to allow some 16 and 17 year-olds to vote. However, the Scottish Parliament’s decision with respect to health board elections and Crofting Commission elections in Scotland has set no precedent for any elections for which the United Kingdom Government and Parliament are responsible.

I fully expect the Scottish Government’s proposals to be debated robustly in the Scottish Parliament. It will be for the Scottish Government to make their case for this proposal and to deal with the issues that arise.

I can make it equally clear that any decision taken by the Scottish Parliament for the referendum will not affect the voting age for parliamentary and local government elections in the United Kingdom. That remains the responsibility of this Parliament alone to determine.

I turn to an issue which has attracted comment, particularly from the Scottish Government. The concluding paragraph of the Edinburgh agreement contains a commitment by both Governments to hold a referendum that is legal, fair and decisive. It is fair to say that there have been some creative interpretations of that paragraph in recent times, so I want to take the opportunity to restate its clear and very obvious meaning. Perhaps it is worth reminding the House what it actually says:

“The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum which is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”

This means that the two Governments will conduct the referendum on the same constructive terms as they work on today. It means that if the referendum follows the path set out in the order and agreement, its outcome will be decisive. It means also that, regardless of what the result is, that constructive relationship should continue as we move forward. I believe that that is good practice and common sense. Paragraph 30 is a statement of our determination to hold a referendum that is legal, fair and decisive. However, it does not and cannot be interpreted in a way that pre-empts the implications of that vote. It is important that everyone is very clear about that reality.

Scotland’s future within the United Kingdom will be the most important decision we in Scotland take in our lifetime. Facilitating a legal, fair and decisive referendum is critical. That is why we consulted on this issue. That is why both the Scottish Government and the United Kingdom Government spent many hours discussing and negotiating the process. That is why we seek the support of the House today to approve this order.

Debating this order in this House today marks an important step as we move from discussions on process to what many of us want to do—get to the substance of the debate. It is essential that the referendum decision is focused on determining whether Scotland chooses to remain an integral part of the most successful partnership of nations that this world has ever seen and to remain part of a family of nations that works in the interests of all, or whether Scotland wishes to separate and go it alone.

That is not a decision that should be taken lightly; it should be taken after examination of the facts. I strongly believe that, with the support of colleagues across the House, across Scotland and across the whole of the United Kingdom, fellow Scots will join me in autumn 2014 in choosing to stay part of this very valued United Kingdom. I believe that we are indeed better together. In the mean time, I commend this order to the House.

Amendment to the Motion

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[Lord Forsyth of Drumlean]

My noble and learned friend says 80 years. Yet we have no response. The First Minister is known as something of a gambler. Ironically, his campaign will be funded on a lottery win, on which, of course, no tax will have been paid. The other part will come from overseas supporters, such as Sean Connery. The noble Lord, Lord Foulkes, made an important point. The Electoral Commission thinks that it is inappropriate for foreign money to be deployed in the campaign, but, once again, Mr Salmond is taking the view that he will not rule that out. Even now, overseas funds are being raised in America. I do not know what it is about the SNP that it has great stars, such as Alan Cumming and Sean Connery, who will do anything to support independence except live in the country that they are arguing should be independent.

I said to my noble and learned friend that I would not press this to the vote but, as I have listened to myself talking, I have been tempted to do so because the case seems absolutely overwhelming. Today, I want an assurance from the Minister that the Government will put pressure on Mr Salmond to answer these issues and to come forward and tell us what the question will be. Most important, we need an absolute commitment that the Electoral Commission will act as referee and its advice will be accepted.

[Lord Foulkes of Cumnock]

The noble Lord has called on the Government to put pressure on Mr Salmond. From time to time, it is better for some of us who are perhaps long-term opponents of Mr Salmond to keep quiet about him, but would it not be helpful if the supine Scottish media looked at the SNP and its policies, started to put them under scrutiny and started to ask serious questions about what Scotland would really be like under independence? Should we be asking them to show us that they can do their job properly?

[Lord Forsyth of Drumlean]

I have to say to the noble Lord that I am quite ambitious, but to suggest that I could get him to keep quiet probably is stretching reality. The media are only as good as the information that they are given. If we are honest with ourselves, the pro-union campaign has been a little slow in getting off the mark—by that, I mean the Government—and setting out the facts. We still are arguing about questions, rules and dates, all of which should have been resolved long ago. We should be talking about the consequences for jobs, employment, investment, defence and our future in the European Union. These are the matters that should be discussed. They are the very last things that Alex Salmond wants to discuss because he and his party do not have any answers as to how our financial institutions would be regulated, how we would be able to operate in a modern world and where they would be in terms of asking to join the European Union from a position of weakness.

I fear that I have gone on for far too long. The Secretary of State for Scotland said that this was the most important question in United Kingdom politics for more than 300 years. I find it sad that the involvement of both Houses of this Parliament should be so limited in a question that is so important—he is absolutely right in that respect. It seems to me odd that the mother of Parliaments is being excluded from this process. My noble and learned friend and his colleague, the Prime Minister, went to Edinburgh. They did a deal in a room, which was never discussed by Parliament. There has been no opportunity for us to do anything. I am reduced to moving an amendment that will make no difference whatever. Even then, Alex Salmond is distorting what we say. I know that Members opposite worry about Alex Salmond and the way in which he seeks to present our commitment to the United Kingdom as being in some way anti-Scottish. It is not anti-Scottish to seek to defend Scotland’s right to remain a part of the United Kingdom and to play a proud and honourable role in this process. I beg to move.

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[Lord Foulkes of Cumnock]

Is he not also hoping for some reflected glory from the Ryder Cup and the Commonwealth Games being held in Scotland in that year as well?

[Lord Reid of Cardowan]

I do not know. That is possibly the case, but I have given up the psychoanalysis of prominent figures. However, I have to say: be careful. I am not frightened of Alex Salmond and I do not know why we give him the status that he appeared to be given earlier. I believe we should have the confidence to say that ultimately this decision will be made by the Scottish people. We may have a fox in charge but we do not have chickens. We have in the region of five and a half million good strong people in Scotland who will make their own decision after an aggressive argument during, as it now happens, another extended period. On the timing, I think that the Government were weak. If they had truly been speaking to the people of Scotland, they would have said, “Let’s have a decision now. We’ve been debating this for decades”.

Secondly, there were two aspects concerning the question. One was of huge strategic importance and it was whether or not to have one clear question. On that, to give credit to the Government, they stood firm and we have it. We know why the First Minister wanted the other question. It was because he thought it would be more achievable, and the way it was to be achieved was not by him admitting to his fundamentalists that he would have settled for less than full separation. And, for goodness’ sake, I hope that the Government will recognise that we are already a sturdy, independent country. What is being asked for here is separation, not independence. Like any independent person, as a country we can choose, and have done for centuries, to ally and partner with other countries in order to punch above our weight. We did so before the Reformation with France; we did so after the Reformation with the great centres of learning of Europe, such as Geneva; and we did so throughout the British Empire when we ran it—although we can blame the English for the all the ills that ensued afterwards. It would therefore be helpful if the Government referred to this as what it is: a campaign for separation, not a campaign for independence.

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[The Duke of Montrose]

I thank my noble and learned friend for that clarification but the underlying issue still bears consideration. On independence, I think that what we are faced with is that some regard Scottish history as having been a wasted opportunity either after Flodden in 1513 or after the Darien scheme in 1698, and they wish to wipe the record clean and begin again with a new and enlightened polity—centuries of Scottish toil brushed carelessly aside.

We can all see that in the intervening period there have been some remarkable individual Scots whose lives have marked moments of great progress for mankind, including Adam Smith, the framers of the United States constitution and David Livingstone. They can all stand on their own merit but in some ways, backing up the remarks made by the noble Lord, Lord McConnell of Glenscorrodale, when we begin to consider what Scotland’s contribution has been in the wider world, the vast bulk of it has been achieved within the union that is the United Kingdom.

Of course, as we contemplate the accumulation of events—the noble Lord, Lord Reid of Cardowan, raised the same issue—we are now learning that perhaps some of the elements were far from activities of which we should be proud. Overall, though, I maintain that Scotland has much to show for those years, and it is not something that can be easily shrugged off in a moment of enthusiasm for whatever appears new.

The nature of Scotland is such that big opportunities generally have been seen in the wider world outside. We can all see that independence can have a great attraction to the stay-at-home Scots, as long as Alex Salmond can continue to pull in sufficient funds to maintain the level of what we have come to regard as our inalienable rights. However, what can a vote for independence offer to our young people who are pursuing a career path in the corridors of power or in more widespread and influential businesses and marketplaces, or those who wish to establish businesses there? Will they not have to accept that they will be even more regarded as non-nationals in their place of work and increasingly unable to have a vote and influence in what is still their home?

[Lord Foulkes of Cumnock]

Perhaps I may follow the noble Duke, the Duke of Montrose, who has spoken so elegantly, as always, in this debate, as I did on a number of occasions during the passage of the Scotland Bill. Perhaps I may inform Members of this House, not all of whom may be au fait with social media, that this debate is being very well covered. Already the key comments made by the noble Lord, Lord Forsyth, and my noble friends Lord McConnell and Lord Robertson have appeared on Twitter. That is a very interesting development, and I shall return to that.

The Scottish Government appear to want—I think that we have to be very careful about the words that we use, as I said to the noble Lord, Lord Forsyth, in an intervention—to manipulate the way in which things will turn out in this referendum. It is very important to indicate clearly that separation is very different from any kind of devolution. As shown in the recent somewhat confusing vote regarding membership of NATO, the Scottish Government are going out of their way, in wanting to keep the Queen and in hoping to keep the pound, to try to make it appear that this separation, which will be drastic and irreversible, is no different from the vote that we had on devolution. It is completely different and we must keep saying that.

I referred to funding in an intervention, and I hope that we will get a reply. Again, there seems to be an attempt to manipulate or to try to make sure that the outcome moves in a particular direction, with funding coming from all sorts of sources for the yes campaign, particularly from overseas. We need to know that there will be a ruling, not advice, and to know exactly what the ruling will be and who will make it, so that there will be a level playing field.

Another issue that has appeared in social media—it was reported on Twitter—was that Alex Salmond said today, in an interview on Radio 4:

“The first job of the Scottish Parliament would be forming a constitution”.

There is a misunderstanding of what would happen in the event of a yes vote, on which I think almost all of us here agree, although the noble Lord, Lord Wigley, has not spoken yet. An assumption is being made—an impression is being created—by the supporters of the yes vote that there would suddenly be independence. I hope that the Minister will indicate that it would be a long and difficult process in relation to issues such as the national debt and a whole range of others that will have to be negotiated.

A separate Scottish state could not be created until there had been legislation in this United Kingdom Parliament. Surely, there would have to be further legislation before there could be a separate Scottish state. The referendum is not enough. The detail would have to be worked out. There would have to be negotiations. Some people have suggested, and I hope that the Minister will comment on this, that there might need to be a further referendum on the acceptance of the negotiations at the end of that. I am not sure if that would be the position but it certainly seems arguable that that could be the position.

My main point relates to the report by the Select Committee on the Constitution, mentioned by the noble Lord, Lord Crickhowell. It covered a number of points. Paragraph 27 of the report states:

“It may be, therefore, that irrespective of the legal status of the MoA as a whole, different provisions within the MoA are capable of generating different levels or different kinds of legal or constitutional obligations or expectations”.

Paragraph 28 states:

“It cannot safely be said that the arrangements proposed put the matter beyond all legal challenge”.

My noble friend Lord Browne has already raised the question of legal challenge in relation to the wording of the question. I hope that the former Lord Chancellor, the noble and learned Lord, Lord Mackay, does not mind my saying, but earlier I had the opportunity of discussing this matter with him and he indicated that there may be options of legal challenge here as well. I do not think that it should be used as a threat in any way but we should alert people, the public generally and elected Members of the Scottish Parliament and the Scottish Government, to the dangers of that kind of thing.

[Lord Crickhowell]

While this question was left in the air, we were conscious that at the very least it might be another cause for substantial delay while the legal question was settled.

[Lord Foulkes of Cumnock]

I think that that has reinforced the point.

I also want to raise the question of 16 and 17 year-olds, as I have done on a number of occasions. I do not think that people have realised—and certainly the Scottish Government have not realised—the practical problems of identifying and putting these 16 and 17 year-olds on the register. It has been estimated that there may only be a few thousand who are ultimately eligible to vote. We should ask the Scottish Government to tell us how they are going to do this. It has already been made clear that they will have to undertake and fund it; we should ask them how they are going to carry it out.

Finally, one particular problem is that there is so much preoccupation with the referendum by the Scottish Government, the First Minister and Deputy First Minister, by members of the Scottish Cabinet and SNP Members of the Scottish Parliament—they are so preoccupied with the run-up to it and winning it—that other areas that we have devolved to them are being ignored. The health service is not being properly supervised and problems have already been raised. Some of our Labour colleagues in the Scottish Parliament have brought up these concerns. In education, housing, and social work, problems have been raised that are not being properly addressed. We should say to Members of the Scottish Parliament, and particularly to the Scottish Government, that a whole series of very important matters has been devolved to them and they should not let their preoccupation with the referendum and with trying to win it take their attention away from doing a good job in the areas already devolved.

[Lord Steel of Aikwood]

My Lords, when my noble friend Lord Forsyth began his speech he said to my noble friend the Minister that if he were on a charge of murder he would happily employ my noble friend as his defence counsel. I hope my noble friend is honing his skills because they may be needed. I get the impression that my noble friend Lord Forsyth has a completely unhealthy obsession with the First Minister of Scotland, and it is not one that I share. It may go back to the fact that they were at university together, but I thought that his otherwise powerful speech was spoilt by too many references to one individual of whom we should not be afraid.

--- Later in debate ---

[Lord Wallace of Tankerness]

I certainly intend to deal with that. It is a fair question which has been echoed across the Chamber in this debate.

Donations from overseas are dealt with by paragraph 28 of the agreement, which indicates that the rules under PPERA will apply. PPERA states that donations of more than £7,500 must be recorded and declared publicly and that donations of more than £500 require individuals to be registered in the United Kingdom. It is intended that these rules will apply in this referendum and the agreement has set that out. In other words, it is the same rules as are agreed under PPERA.

[Lord Foulkes of Cumnock]

Does that mean that more than £500 can be donated to the campaign from people in England?

[Lord Wallace of Tankerness]

I understand that that would be the case, yes.

My noble friend Lord Forsyth asked why broadcasting and mailshots were included in the order whereas other issues were not. The simple answer to that is that broadcasting and the Royal Mail are outwith the competence of the Scottish Parliament. Legislation brought forward by the Scottish Parliament cannot deal with these issues unless competence has been transferred. That particular part of the order transfers competence in order for the broadcasting arrangements and mailshots to be dealt with.

My noble friend and many other noble Lords asked about the nature of the question. Numerous people have found flaws with the question of whether Scotland is a country, a state or a nation, as the noble Lord, Lord Sutherland, made clear. I do not stand here to defend the question that has been put forward. It is not my job to defend it; nor would I wish to defend it. It is important that that should be a matter for the Electoral Commission, which is why it has been asked to advise.

The United Kingdom Government recognised in their consultation paper that the Electoral Commission’s role in referendums was to consult on the intelligibility of the proposed question and to report to the UK Parliament. We would have come under considerable pressure and criticism if it had been suggested that the Scottish Parliament should be treated in a different way. I will pick up on this point, because it is quite central to a lot that has been said in this debate. I will not go into the personalities, but we know the ability of not only the leader of the Scottish National Party, but in many ways the Scottish National Party itself. One thing that they have quite excelled at—those of us who have been around Scottish politics know this only too well—is their ability to nurse a grievance and to milk a grievance. That is what the noble Lord, Lord McAvoy, said about the timing of this. We do not want to give them another sense of grievance. If we had proposed that the Scottish Parliament was in some way to be treated in a lesser way with regard to a question after it had gone to the Electoral Commission than the United Kingdom Parliament was treated, we would have given them cause for a grievance.

The noble Lord, Lord Reid, was absolutely right to point out that this is a question which will come back to haunt them if they choose to ignore the advice of the Electoral Commission. I know that my noble friend Lord Forsyth said that he did not want this to be two years of picking on points, but it would be quite legitimate, if an attempt was made to put a biased question, for that to be pointed out and for the political consequences of that to be reaped. However, I would not wish, and what we have sought to avoid—and have successfully sought to avoid—is a two-year campaign in which the United Kingdom Government and Parliament are in the dock because we somehow or another have tried to rig the referendum. That is why it is so crucially important that we do not give, and we have not given, any opportunity for the Scottish Government to cry foul and say that we are somehow rigging the situation.

In an interesting article by John Rentoul in the Independent in November of last year, in which he praised my right honourable friend the Secretary of State for Scotland, he said:

“This sudden removal of the London Government from the see-saw meant that Salmond lost his balance. When Cameron went to Edinburgh in February to announce that he would not try to stop the Scottish National Party holding a referendum, Salmond found that the great London counterweight, against which his career had been built, had been taken away”.

It is important that we do not give that opportunity, or that excuse, for a grievance to be mounted. That is one of the main reasons—a key reason—why we are dealing with this in the same way as we would deal with a question in a UK referendum that had been legislated for by the UK Parliament.

That answers the question about the referee and the player. I take the point made by the noble Lord, Lord Sutherland, who came forward with a question himself. It is up to people with an interest to make their views on this known to the Electoral Commission. Clearly it would not be appropriate from the Dispatch Box to determine the agenda of the Scottish Parliament, but I rather hope that Members of the Scottish Parliament will note what has been said about them having an opportunity to debate this issue.

I will make one further point on this, which was made by the noble Lord, Lord McConnell, and was echoed by the noble Lord, Lord Empey. Lots of harsh words could, and almost certainly will be, exchanged in the next two years, and there is potential, as the noble Lord, Lord McConnell, said, for a nasty taste to be left in the mouth. That is why there is a responsibility on the Scottish Government and the Scottish Parliament to ensure that the question that is asked is not a source of that sour taste in the mouth. Just as we have sought, as a United Kingdom Government and a United Kingdom Parliament, to produce a scheme and process that will not allow anyone at the end of the day to cry foul—“It wasnae fair”—it is also incumbent on the Scottish Government and, above all, on the Scottish Parliament to ensure that when they devise the rules, procedures and indeed the questions for this referendum, they do not give anyone the opportunity at the end of the day to say “It wasnae fair”. It is important that the outcome of this referendum is decisive and properly recognised as having been fair and properly arrived at by the people of Scotland when they cast their votes in 2014.

Constitutional Settlement

Lord Foulkes of Cumnock Excerpts

Thursday 11th October 2012 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, it is a great pleasure to follow the noble Lord, Lord Cormack, about whom one of our colleagues once said that if this place had not existed, it would have had to have been created for him. He fits into this place so well. I congratulate—I must refer to him as my noble friend—my noble friend Lord Maclennan. I have known him for so long and most of the time we were in the same party together. I appreciate his wisdom, which others have mentioned, his knowledge and his experience. I am particularly pleased that he has included those three words “alternative constitutional settlement” in the Motion. That is what I want to concentrate on.

Let us first remember why we brought about devolution in the first place. It was not as a reaction to the SNP, it was not as a bulwark against independence and it was not, as some people hoped, as the first step towards independence—the slippery slope argument. We introduced it because in Scotland for 200 years we had had a separate system of education and local government, a separate culture and, above all, a separate legal system, but we also had a democratic deficit because we did not have appropriate democratic control of all that devolution. It was dealt with administratively and inadequately here in Westminster as a codicil to UK or English legislation or as a hurried Scottish Bill late at night, if we had the time. That is why we brought it in. It was because we wanted to do something sensible about that democratic deficit. As with all the changes that have taken place, there have been unintended consequences, and they are what we need to deal with.

Perhaps I may add to what was said earlier by my noble friends Lord Maclennan and Lord McConnell and explain how we dealt with the devolution creating the Scottish Parliament. It was the Scottish Constitutional Convention. Let us remember that the SNP boycotted it. Some people forget that. We might almost forgive them, but not quite. We had wide representation from civic society in particular, and it was based on a clear aim in the Claim of Right. I do not know whether all noble Lords have had the opportunity of reading an excellent book by Owen Dudley Edwards—I contributed a chapter to it. All the Scots Labour MPs, except Tam Dalyell, and Scots Liberal Democrat MPs signed that Claim of Right. We had a purpose. There was a real understanding of what we were aiming for. Then the Welsh Assembly followed. There was not that enthusiasm originally in Wales, but when people saw what Scotland had and what we were doing with it, as noble Lords from Wales will know, they wanted something similar, and the desire for devolution has been growing in Wales. Thankfully, Northern Ireland revived its assembly under different circumstances, and Stormont is now working as part of the whole constitutional structure.

[Lord Wigley]

The noble Lord will have noted, I am sure, that support for the constitutional settlement in Wales shot up when the National Assembly for Wales got legislative powers after the referendum last year. Therefore, enthusiasm has grown, as have the powers.

[Lord Foulkes of Cumnock]

Indeed, it is understandable. It is welcome that we have a representative of the Welsh nationalists here. I underline what the noble Lord, Lord Kerr of Kinlochard, said: it would be helpful if we had a representative of the SNP. I know Pete Wishart and some other MPs are quite keen on that, but there is one person who vetoes it, and he has a veto.

To return to my argument, I have written a couple of blogs recently arguing that both from the point of view of Scotland and the point of view of this place, we need a UK constitutional convention because of the piecemeal looks at constitutional reform that we have had in the past and all the anomalies and unintended consequences that have resulted. We need a coherent, consistent look, and we need to work towards a stable solution. One of the anomalies has already been mentioned: the West Lothian question. That is being dealt with separately, and I think wrongly, by the commission under the chairmanship of Sir William McKay because it is looking at it in the narrow context of how we can stop Scottish, Welsh and Northern Irish MPs voting on purely English legislation. Incidentally, it has not considered whether it would stop Scottish, Welsh and Northern Irish Peers voting on that legislation. That did not seem to have occurred to it until some Peers drew it to its attention. So that is being dealt with.

The other thing is that we have ended up with asymmetrical devolution. Scotland, or perhaps Northern Ireland, has the greatest amount of devolution—we could argue that—and then Wales. We then come to the West Lothian question and the problem about England. That is why I and others argue—and it is an increasing argument—that there should be a constitutional convention. My noble friend Lord McConnell said, and I think he is right, that there should be a purpose and an end in sight and that we should know where we are going and not just hope that something will emerge. That is why I am in favour of a federal United Kingdom. I have been arguing that in my own party and with the Liberal Democrats. The Liberals used to want one. I remember going to meeting after meeting where the Liberals would argue so cogently in favour of a federal United Kingdom. They should return to that, we should look at it and I hope others will look at it as the stable solution.

The other stable solution would be a centralised United Kingdom or the break up of the United Kingdom. I do not want either. I do not want a return to a centralised UK, and I do not want the break up of the United Kingdom, but a federal UK would be the way forward.

As other noble Lords have said, the UK constitutional convention could also look at this House, its purpose and its constitution. I very much agree with my noble friend Lord McConnell and the noble Lord, Lord Kerr, about the need for Scotland, Wales, Northern Ireland and, of course, England and the regions of England to be properly and sensibly represented in this place, giving this place some enhanced credibility. That needs to be looked at. We also need to look at the relationship of the United Kingdom Parliament, the Commons and the senate, or whatever we call it, to the devolved Parliaments.

Some people argue that a federal system would not work because England is too large. If you think about it, that does not make sense because if the English Parliament—let us say that there is an English Parliament—deals with devolved matters, it is autonomous in those devolved matters, as is the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, so it gets on with its own educational system or whatever. If you agree with a federal structure, if that is the way forward, the size of the different parts does not matter. Where it may matter is when it comes to the federal Parliament, and that is where you have to look at how some balance can be struck.

[Lord Watson of Invergowrie]

I support the point that my noble friend is making. Does he recognise that in Germany the Länder vary in size from Bremen with, I think, 700,000 people to North Rhine-Westphalia with about 20 million people, yet they still operate ostensibly on the same basis, which supports the point he is making?

[Lord Foulkes of Cumnock]

I am grateful to my noble friend—he is very much my noble friend—for that example. Pakistan is the same. Punjab is a large state in Pakistan. Ontario is a very large province in the Canadian federal system. It can work. One of the ironies is that the German constitution was formulated by British people. We give these sensible constitutions to other countries, but end up with a bit of a dog’s breakfast ourselves.

If there is one message that I want to come out from this debate today—it has come from all the contributions that have been made and, I predict, will come from others to come—it is that there is growing momentum in support of a UK constitutional convention. As my noble friend Lord Maclennan said, the Political and Constitutional Reform Committee of the House of Commons, chaired by Graham Allen, is now looking at it. People have been arguing it here. People outside have been arguing it. I think we should try to be the forerunner of a campaign for a UK constitutional convention. We need to get the party leaderships behind it. I have started to encourage the leadership of my party to adopt this as their policy and I will continue to do that. I hope that the noble and learned Lord, Lord Wallace of Tankerness, can say in his reply that he will encourage his party to adopt a UK constitutional convention, moving towards a federal structure, as his policy. He might even try persuading his coalition partners likewise; I know that it is not easy. It is only through cross-party agreement, if we can all see the way forward and the aim in mind, that something sensible will be achieved. My goodness, with the dog’s breakfast of a constitution we have at the moment, something sensible is long overdue.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, there is a theme. I hate the word “subsidiarity”, but the overall theme is about where decision-making can best be achieved and delivered consistent with good governance. I think the issues and headings that we identified in the Calman commission, which were taken forward in legislation, did subscribe to that theme. Also, as I have said, a very important theme was the accountability that came to the Scottish Parliament with the devolution of financial powers. It must now answer to the people of Scotland as to how it raises money and not solely as to how it spends money.

There is more than just what we have achieved in the Scotland Act 2012, which of course is still ongoing in terms of its delivery. We have established the McKay commission to explore how the House of Commons might deal with legislation that affects only part of the United Kingdom following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The Silk commission, set up in October last year to review the present financial and constitutional arrangements for Wales, is due to publish its first report on financial accountability within the next few weeks. These are significant processes, and we must allow them to reach fruition and not impede their development. They have a common aim, which is to deliver improvement in the lives of the people in Scotland, Wales and Northern Ireland. Each evolved in different historic ways, and we believe that recognising the different features and factors that make up the constituent parts of the United Kingdom has been an important part of the process.

My noble friend suggested that we should be looking at alternative constitutional settlements. The noble Lord, Lord Soley, suggested there should be a royal commission, while my noble friend Lord Maclennan said this is something that might go on for years and not something that was going to be done in just months. My noble friend—as he was, and still is personally—Lord McConnell talked about the Scottish Constitutional Convention, one of whose features was that it had a very clear end in sight. It is important that we remember that.

I was interested by the number of noble Lords, including the noble Lords, Lord Soley—whose article I have had the privilege to read—Lord Foulkes and, I think, Lord Judd, who mentioned federalism. I can assure the noble Lord, Lord Foulkes, that it remains the policy of the Liberal Democrats and I am sure that when he reads the report of the Campbell committee, which was set up by the Scottish Liberal Democrats, in the next weeks, he will be pleasantly reassured, not necessarily surprised, by what he reads in that.

Numerous ideas have been put forward by your Lordships in debate. My noble friend Lord Steel of Aikwood referred to the 1979 manifesto when he talked about the second Chamber having a role to play in the representation of the nations and regions of the United Kingdom. If I am not mistaken, I rather suspect that was in the evidence that he wrote for the Scottish Liberal Party to the Kilbrandon commission in about 1967. We can check back, but it has been a consistent theme for some time. Clearly there are issues there that merit further examination and discussion.

[Lord Foulkes of Cumnock]

The Minister has kindly acknowledged that almost everyone who has participated in this debate has called either for a UK constitutional commission or a royal commission. I am not expecting him to announce one today or even to say that he agrees with that. However, surely the very least he can do is to say that he recognises this groundswell, on all sides of the House, and that he will take it away and discuss it with his coalition and his own colleagues. Can he do that?

[Lord Wallace of Tankerness]

The noble Lord certainly makes a tempting proposition.

The noble Lord is right to say that there has been a groundswell among people here, but, as my noble friend Lord Maclennan said, experience in many other countries seems to suggest that constitutional conventions work best when they come from the citizenry and work up rather than from Houses as grand and noble as this and feed down. They are often driven by the public rather than politicians. That was certainly the case with citizens’ assemblies in Canada and the Netherlands, which considered issues such as electoral reform before putting their findings to a referendum, and Iceland, where a constitutional council drafted a new constitution for consideration as a Bill by the Parliament. It is also fair to say that the Scottish Constitutional Convention did not come from the Executive, the Government. Indeed, it came in the face of the Government’s opposition to it. It came from civic Scotland and two of the opposition parties and was very successful because it engaged civic Scotland.