Energy: Onshore Wind

Lord Foulkes of Cumnock Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, first on the economic impact, it is possible to overstate that. That it is why I did not really dwell on the issue. Two hundred and fifty projects are likely to be affected, but a clear majority of those would not be processed even within the old limits, so the economic impact is small. With relation to contracts for difference, as my right honourable friend the Secretary of State said in another place, we will be making a Statement on that in due course.

[Lord Foulkes of Cumnock (Lab)]

Why did the UK Government not consult with the Scottish Government before making this decision?

[Lord Bourne of Aberystwyth]

The noble Lord will be aware that this is a reserved issue. There was correspondence with the Scottish Government and tomorrow my right honourable friend the Secretary of State will be meeting with Fergus Ewing, the Minister for Energy in Scotland.

Wales: National Assembly Elections

Lord Foulkes of Cumnock Excerpts

Monday 18th June 2012 Grand Committee

[Lord Foulkes of Cumnock]

Is it not possible that this Parliament could be dissolved in some other way before that date? That could happen if, for example, the coalition was to split and the Prime Minister no longer felt that he had the confidence of the House of Commons. The general election might then take place on a date other than that which the noble and learned Lord has specified.

[Lord Wallace of Tankerness]

That is a theoretical possibility, and the provisions for triggering an election are set out in the Fixed-term Parliaments Act 2011. Indeed, I can recall the noble Lord and other noble Lords present today debating those provisions at some considerable length. So it is possible, but the primary position under the Act is that the next election will take place on 7 May 2015.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

Perhaps I may make a little further progress before I take the intervention.

As I have said, that date would coincide with elections to the National Assembly for Wales. The Welsh Government raised concerns that a parliamentary poll on the same day could overshadow an Assembly election and, following a vote in the Assembly, the Fixed-term Parliaments Act itself deferred the date of the next Assembly elections by one year, to 2016.

[Lord Foulkes of Cumnock]

The Minister is obviously right if that is what happens, but is it wise to move ahead with other legislation on the basis of something that may not actually happen? It may be the most likely event, but it is not necessarily an absolute certainty. Is it wise to change legislation on the basis of something that may not be final?

[Lord Wallace of Tankerness]

The essence of a consultation is for considerations of that kind to be imported into the consultation, but the position is that if the law remains unchanged, and if it is the case that the next general election is held on 7 May 2015, under the five-year fixed-term provisions, five years hence from that date would be the first Thursday in May 2020. If the law with regard to the National Assembly for Wales has not changed, then by reverting back to a four-year term, the Welsh Assembly will also take place on the same day in May 2020. That is why we are examining the question of whether the Assembly should move on a more permanent basis to a five-year term. However, that is to accept that at any time either in this Parliament, the next Parliament or the one after that, there could be a situation where the Parliament does not run for its full five-year term. No doubt future Parliaments would have to address the consequences of that. It is also worth pointing out that if we had not had an Act for fixed-term Parliaments and this Parliament, as previous Parliaments have done, ran to its full term, the dates for the two elections in May 2015 would coincide without any prior provision having been made for that.

--- Later in debate ---

[Baroness Randerson]

That sets an interesting train of thought. As the legislation currently stands, we would move to 30:30 under the current Government of Wales Act. Would consent be needed to adhere to the current legislation? I do not think that would necessarily be the case. The concept of Assembly consent—which has never come up before in this context, so far as I can recall—is desirable and I would hope it would happen, but it does not necessarily follow that it has to be because of the status of the current legislation.

I want to deal with the other issues of significance in this paper. A really important issue is the end of the ban on dual candidacy. In 1999 and 2003, I was a candidate for the list and for constituency seats, along with members of all other parties—including the Labour Party. Dual candidacy ensured vibrant energetic campaigns in individual constituencies. Candidates who knew that they were not likely to win a constituency would nevertheless fight hard in an individual constituency because it contributed to the list campaign. The loss of dual candidacy reduced the level of campaigning, particularly as regards the list vote. As a result, we had a loss of democracy in Wales.

The ban came out of the ether, as far as I could see. It seemed to be a purely political measure introduced in 2006 by the Labour Party, and it clearly penalised smaller parties. Think about the mathematics. A party has to have 40 constituency candidates; and now, under the current system, with a ban on dual candidacy, it probably has to have another 25, with five candidates for each of the five regions. Under the old system, if you stood as a candidate in both a constituency and for the list, you could, as a party probably get away with a slate of 40 candidates. Now you have to have effectively 65. That makes the situation difficult for small parties, and the system was designed to do that.

[Lord Foulkes of Cumnock]

Surely, if a party cannot manage to get even 65 candidates to stand, it does not deserve to get elected Members? Small parties surely deserve small representation.

[Baroness Randerson]

I do not agree with the noble Lord at all. In a vigorous democracy, parties have to start to develop and form.

[Lord Foulkes of Cumnock]

And recruit.

[Baroness Randerson]

You should not put hurdles in their way. I believe in a developing democracy. I should like there to be a world where the Liberal Democrats were in a majority Government and ran everything. Would it not be wonderful? However, I accept that that is not going to happen on a regular basis in a democracy; and a vigorous democracy should not put hurdles in the way of the development of smaller political parties. One of the joys of devolution has been that new forms of politics have been developing. They may be transitory, but the important thing is that we have more variety in our politics.

It is worth noting—and that intervention was useful—that there has been no such ban on dual candidacy in, for example, Scotland or the London Assembly.

[Lord Foulkes of Cumnock]

I am sorry to intervene. Does the noble Baroness not know that I have tried twice to get such a ban, whereby Scotland comes into line with Wales? I tried it under a Labour Government, and the noble Lord, Lord Evans—astonishingly—argued for it in Wales and against it in Scotland. I then raised the issue under the coalition Government. I cannot remember but I think it was the noble and learned Lord, Lord Wallace, who argued a different case for different countries. I understand the case for consistency, and the noble Baroness is arguing for it, but the inconsistency that we have experienced has been very strange and has been supported by successive Governments.

[Baroness Randerson]

I think that good sense clearly held sway in Scotland. I am pleased that the noble Lord is consistent, but it was a matter of great good sense that the ban on dual candidacy was not adopted in Scotland.

The noble Baroness, Lady Morgan, referred to the anomalous results that came as a result of the ban on dual candidacy. Like the noble Baroness, I am not always sympathetic to the Conservative Party and its electoral fortunes. In that situation, the party in Wales went from having a 15% share of the vote to having a 23% share—from nine to 14 Assembly Members. That is a record of success. From one constituency seat to six is also clearly a record of success. As a result, the leader of the Conservative Party, which was so successful, lost his seat. Clearly that will not improve the reputation for fairness of the electoral system in Wales.

The reason given by the Labour Government for the ban on dual candidacy was public dissatisfaction. However, the consultation did not reveal public dissatisfaction on any scale. The Arbuthnott commission in Scotland found that there was no such problem and the Electoral Commission in Wales also endorsed the view that dual candidacy was not a problem.

Finally, I will deal with the remaining issues. We support a move to a five-year term, to avoid a clash with general elections. Inevitably, if we held both elections at once, the Welsh political dialogue would be drowned out by the general election. Welsh politics would be overwhelmed by UK politics. That would not be fair and reasonable. I ask the Minister whether there are plans to move local elections in Wales in a similar way. Is there a move towards a five-year term in local government there?

On ending the dual mandate, it is certainly true that being an MP and an Assembly Member are both full-time jobs. Over the years, I have observed many people in the Assembly who held the two jobs. Some of them chose to spend all their time in the Assembly. I note that the noble Lord, Lord Wigley, who did that in the first term of the Assembly, is here today. However, some decided to abandon the Assembly and spend all their time in Westminster. Westminster coped with five MPs spending their time in the Assembly, but the Assembly, which is a slim body of 60 people, could not cope easily with the dual mandate for an MP and an Assembly Member—it could not cope with being abandoned. One person disappearing from the Assembly sometimes makes a difference to whether the Government win a vote. I recall cases when that was true. Therefore, it is important that there should be an end to that. In relation to the House of Lords, it is not an issue at the moment while we have the luxury of the pick-and-mix approach to when we attend the House. However, once we have an elected House, such a ban should extend to its Members.

[Lord Wigley]

My Lords, I suppose that I, too, should declare an interest—although it is substantially smaller than that declared by the noble Baroness, Lady Randerson. I am a little worried that I agreed with most of what she said; it may give me cause for some concern later.

I welcome this debate as it focuses on an issue that needs attention in relation to the National Assembly’s electoral arrangements. However, I believe that these arrangements should be matters for our own National Assembly to decide, not for the two Chambers in Westminster. In this regard, I concur with the sentiments of Wales’s First Minister, Mr Carwyn Jones—something that I do not always do—in today’s Daily Post when he said:

“The electoral system for the assembly is a matter for the people of Wales and no one else”.

As noble Lords will understand, I wholeheartedly agree with him on this occasion.

I am glad that my colleague, the noble Lord, Lord Elis-Thomas, is here—for the first time we have been able to spend some time in Grand Committee together. He speaks with the authority of a long-serving, three-term Presiding Officer of the Assembly, who is widely recognised across party divisions as having done an excellent job. No doubt he will be speaking from the context of his experience as Presiding Officer.

I want to outline the position of my party, Plaid Cymru, on these matters. The power to determine the electoral arrangements should indeed be transferred to the National Assembly. I will address the four subjects broached in this Green Paper; first, the voting system. Plaid Cymru supports the STV system mentioned by the noble Baroness, Lady Randerson, a moment ago. It is used in the Northern Ireland Assembly and I believe I am right—the noble Lord, Lord Foulkes, can correct me—that it is used in Scottish local government as well.

[Lord Foulkes of Cumnock]

Yes.

[Lord Wigley]

Yes, indeed. I do not see any reason why it could not be introduced for the National Assembly for Wales. It avoids having two classes of Member, as is inherent in the present system, which was recognised by the noble Baroness, Lady Randerson. The panel chaired by Sir Roger Jones that looked at certain aspects of the Assembly’s work also noted that there were two different jobs being undertaken. The STV system ensures a direct link between the AM and the voters. Incidentally, alongside increasing the Assembly numbers from 60 to 80, STV was a recommendation of the commission led by the noble Lord, Lord Richard, which reported on these matters in 2004. In fact, the amount of legislative work that has come to the Assembly is greater than that anticipated when he made that recommendation.

This Green Paper is very narrow and restrictive. It neither offers STV nor the status quo as options, and I wonder why not. Both options in the Green Paper involve redrawing constituency boundaries. The STV option does not add to the administrative workload at all. Maintaining the 40:20 split between the constituency and regional list AMs implies regular boundary reviews—costing about £1.7 million a time—to equalise constituency sizes. Adopting the 30:30 split involves no greater expenditure as it uses the Westminster constituencies. However, I emphasise that Plaid Cymru has consistently criticised dogmatic equalisation of voter numbers because of the importance of geographic and historic community links, and because it would be very much harder for an AM or an MP to serve some scattered rural constituencies than it would be in an inner-city area because of the scale and mileage involved.

Some people have suggested having 30 constituencies coterminous with Westminster but possibly electing two AMs each. Other colleagues may address this later, but unless the Assembly size is increased to 90 Members, the proportionality explicit in the 1997 referendum and implicit in last year’s referendum would be broken. However, such a change could deal with the gender balance issue as it would provide adequate capacity to deal with the Assembly’s legislative scrutiny role, which is increasingly becoming evident.

An Assembly of 90 Members would still be smaller than the Northern Ireland Assembly of 108 Members or the Scottish Parliament of 129 Members. I repeat that this is not Plaid’s preferred option as we regard the STV system based on 80 AMs as the best way forward. Plaid Cymru will not agree to any change that reduces the proportionality of the Assembly. For change to happen, there should be consensus, and I do not believe that there is consensus in Wales for either eliminating or reducing the proportionality of the Assembly.

On the five-year term, which seems to be the accepted norm at Westminster, we would likewise accept it for the Assembly but ensure that elections for the House of Commons and the Assembly did not coincide. It is not a matter just of the administrative arrangements, which could be complex enough with different constituency boundaries, but a matter of which candidates are speaking on which manifesto. It would become infinitely more complex.

If the present electoral system remains, the ban on candidates standing both for constituencies and for the list should be lifted. A ban is not imposed on Scotland. I heard the noble Lord, Lord Foulkes, talk about this previously in another context in the Chamber. There is no consensus in Wales for the current system. A similar system is operated, I understand, only in the Ukraine—which is not a particularly good precedent. The ban was introduced for glaring party-political advantage by the Labour Government at Westminster and, frankly, it should be scrapped. However, if the STV were to be adopted, there would be no need to get into those problems.

On the dual mandate, I express my personal view. The noble Baroness, Lady Randerson, referred to my experience in the early years of the National Assembly. My noble friend Lord Elis-Thomas may have a different view on this matter—I am not sure. I served for two years, from 1999 to 2001, as both an AM and an MP. Frankly, it was a total nonsense to try to do so, and it was impossible to do both jobs effectively. In the early months, I found myself bouncing back and forth like a yo-yo between Cardiff, Westminster and my Caernarvon constituency—a formidable triangle. That undoubtedly contributed, along with other factors, to the emergency heart operation that I underwent at that time. Furthermore, a real complication arises if the constituency boundaries differ for the two seats—if one is representing a Westminster seat, with one set of boundaries, and a National Assembly seat, with another set.

Candidates may stand on different manifestos for the two legislatures, again causing confusion. The Assembly seat should be made vacant at the point at which an AM takes the Oath as an MP. Taking the Oath should be the determinant, not the rules that are currently applied for other purposes in the National Assembly and of which the Liberal Democrats fell foul in the last election.

I conclude as I began, by reasserting that the Assembly’s electoral system should be a matter for the people of Wales to determine.

[Lord Elystan-Morgan]

My Lords, perhaps I may say two fairly generous things to start with. The first is how much I welcome the noble Baroness, Lady Morgan of Ely, whom I congratulate on her Front-Bench status. This is the first time that I have had the opportunity of listening to her, and it is clear that she speaks with great authority and immense lucidity. The other not ungenerous thing that I should like to say is that I am delighted that the noble and learned Lord, Lord Wallace of Tankerness, is leading for the Opposition.

[Lord Foulkes of Cumnock]

He’s the Government!

[Lord Elystan-Morgan]

The coalition Government. Old habits die hard. I remember when I was a student, a very long time ago, reading something to the effect that the surname Wallace derives from “Wallish”. Wallish, in Scots Gaelic, meant “Welsh”—so it may well be that some millennium and a half ago we had common ancestors.

Having spoken, I hope not ungenerously, on those two matters, perhaps I may say that the Green Paper has come about because of a massive blunder by Her Majesty’s Government 18 months ago. I refer to the fact that a decision was made without any empirical evidence or research to the effect that the number of Members in the House of Commons should be reduced from 650 to 600—a perfectly arbitrary judgment. It may very well be that there were elements of self-interest in that decision, but I am prepared to accept that that was probably not the case.

It was a slavish pandering to vulgar populism. It you were to put this to an audience in the front bar of most public houses in the United Kingdom, many people would say, “Yes, certainly. Do away with half the so and sos”. It was that motivation that brought about one of the most massive errors of judgment in relation to parliamentary democracy of the past 100 years. The effect was that ancient constituencies—representing very old communities that had been hammered out on the anvil of time—disappeared. Natural boundaries—rivers, mountains, bridges, old county boundaries—melted away. All this was done, according to the Government, to bring greater fairness, greater cohesion and greater certitude. I do not believe that one could have been more destructive of those elements if one had really tried.

Tacitus speaks of generals who laid waste huge areas of land, saying that where they create a desert they call it peace. Here, the Government create chaos and they call it electoral reform. That is what has brought this Green Paper into existence and the necessity of making judgments in relation to these matters.

The Government speak as if they are now stepping in nobly to deal with some sort of crisis created by some utterly external and independent agency—something that has come about without any responsibility on the part of the Government. I remember a report of a case in the assizes about 100 years ago. A person had been found guilty of murdering his mother and father. The allocutor asked him, “Have you anything to say on why judgment according to law should not be passed upon you?”. He said, “My Lord, I throw myself on the mercy of the court. I am an orphan now”. The crisis is entirely of the Government’s own making.

I do not apologise for my short preamble, but I now turn to the Green Paper. I will confine myself to whether there should be 30 or 40 constituencies for the purposes of election to the Welsh Assembly. I agree with my noble friend Lord Wigley and others that there is an overwhelming case for concentrating on 30. It comes about for all the wrong reasons, but I believe it is a fait accompli that one should accept. All the alternatives would be infinitely worse. There would be a lack of cohesion, nightmarish conflicts, unnecessary cost and hassle. One should build on the 30 in any event, but one should go much further than that. The real issue today is not the number of constituencies or any of the other questions raised by the Green Paper; it is the question that is dismissed in one sentence in paragraph 1.1, where the Government state that the number of Members of the Welsh Assembly should remain at 60. That is a massive and utterly existential question.

I believe in my very bones that 60 was a ludicrously small number to begin with and made it impossible for the Assembly to have any real future or viability and promise. That was the situation when the Assembly was created and it is now infinitely more acute since the referendum in March of last year. What we have now, whether or not we call it an Assembly, is a Parliament—a legislature with responsibility for substantial areas of primary legislation. If that Assembly is to be shackled and emasculated to the degree of having only 60 Members, we will deny it the real prospect of life and growth. It does not give me any pleasure to make that point because people in many parties have been saying all along, “For goodness’ sake, don’t talk about adding to the number of Members in the Assembly”. It is about the most unpopular subject that you could raise. To some extent all of us, including Assembly Members, are guilty of that mentality, but leadership must be conducted in an honest and statesmanlike way.

I do not know exactly how many of the 60 will be left to deal with scrutiny, something which has come about in the Assembly for the first time so far as primary legislation is concerned. Unless the Assembly can scrutinise in a detailed, honest and comprehensive way, it might as well not be there. This House and the other place have exercised that privilege and responsibility for centuries, and they earned it the hard way. But at all times they have had an adequate number of people to allow them to do it. By my rough calculation, having taken into account the Ministers, Deputy Ministers, Chairmen of Committees and one or two other functionaries who would be exempt from the exercise of scrutiny, only around 30 Members would be left. Indeed, from what I have heard from the noble Lord, Lord Elis-Thomas, who I think will deal with the exact numbers, that is a gross underestimate. What noble Lords hear from me is advocacy, but what they will hear from him is testimony.

The situation is this. If we want the Assembly to be a real legislature, it has to move away from the shackle of 60 Members. The Richard commission said eight years ago, before the referendum last year, that 60 Members were too few. Noble Lords will remember that the noble Lord, Lord Richard, recommended 80. In my view, 90 would be a perfectly reasonable and adequate figure, and of course it has the blessing of being able to be divided by three. I suggest that 60 should be elected by first past the post, but I would not go to the stake if it were the other way around, with 30 elected by first past the post and 60 under the additional member system. I think it would be wrong, but rather than see the Assembly emasculated and turned into a little puppet government, I would prefer to see that.

On that basis, therefore, I appeal to the speakers in this debate and to all who are concerned about politics in Wales to see to it that that reform is brought about. The Government have made a great error and committed a massive blunder, but the situation is not irredeemable. They can use that blunder to bring about an utterly necessary reform—that of increasing the number to a viable level of 90 or thereabouts. We have been told that Scotland has 129 Members, which is one Member for each 39,000 of its population. Northern Ireland has 108 Members, one for each 15,700 of its population. Wales has 60 Members, which is one for every 48,000 of its population. I hope that those who cry for equality, equity and justice will accept the case.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, after the powerful declaration by the noble Lord, Lord Wigley, that this is a matter for the people of Wales and no one else, I rise with some trepidation. I do not even have the advantage of a name that can be brilliantly transposed into Welsh by the noble Lord, Lord Elystan-Morgan—

[Lord Morgan]

Foulkes is a Welsh name.

[Lord Foulkes of Cumnock]

Nor was I going to pray in aid the fact that I was born in Oswestry, because that is three miles over the border. However, as my noble friend said, there are some justifications for me to be able to speak in this debate.

[Lord Morgan]

Is my noble friend aware that his name actually begins with two little fs?

[Lord Foulkes of Cumnock]

Not any more, I am glad to say, because that would be very difficult. It is bad enough having a title without having two little fs in one’s name, especially in Scotland.

In an excellent and articulate speech, the noble Baroness, Lady Morgan of Ely, said that this was a matter for the people of Wales—as did the noble Lord, Lord Wigley. I took it that they meant the elected representatives of the people of Wales—we are not going to put everything to a referendum. We live and work in a devolved system and there are representatives of the people of Wales in this Parliament and in the National Assembly. This is devolution. We are not separate. We remain part of the United Kingdom and we still have a responsibility within this Parliament. We must exercise it with caution and care, but we have a responsibility.

This is not a party-political point, so I shall try to put it in a different context. I am genuinely worried that in a unicameral system such as that of Wales, if my party achieved an overall majority in both the Executive and legislature, it could change the electoral system so that it had even more of an advantage on a permanent basis. That would be wrong. We have to remember that checks and balances are needed in what I hope will remain a devolved system. I hope that this Parliament will be the check and balance that ensures that our devolved Parliaments do not do anything anti-democratic.

My second point echoes what my noble friend Lord Touhig and others said about the piecemeal nature of constitutional reform. In deference to the noble Baroness, Lady Randerson, I accept that my own Government did not consider fully the implications of the constitutional reform we undertook. We did it with the best will in the world, and I supported it because I had been a devolutionist for a long time. I campaigned for it as far back as the 1960s and 1970s. However, to some extent we did not work out all the consequences or anticipate some of the unintended consequences. It is important to draw lessons from that. We should learn from experience, and so I say to the current Government: be careful about what you are doing with this piecemeal constitutional reform.

As others said, we have many balls in the air at the moment. In Wales we have the Silk commission with two remits. Scotland will take a monumental decision, probably in 2014, on whether to remain part of the United Kingdom. That will have implications not just for Scotland and England but for Wales and Northern Ireland. Those have to be taken account of as well. We also have Sir William McKay—the other day I called him Bill McKay and was told off—heading a commission on the West Lothian question. We do not know when he will report or what he will say. My noble friend referred to the elephant in the room being the Scottish referendum. It may be the elephant, but we also have the rhinoceros of Lords reform. There are major things that will affect what we are doing. That is why I wonder if it is wise to press ahead so quickly with constitutional change in Wales.

I also wonder whether it is wise because there have been problems with the system. We have ended up with a dog’s breakfast not just with constitutional changes but with the electoral system. For those standing for seats in the European Parliament there is a list system. I shall take Scotland as an example. For the UK Parliament we have first past the post, for the Scottish Parliament we have AMS—which I shall come back to in a moment—and for local government we have STV. I have always been a strong supporter of first past the post. People will accuse me of being a tribal Labour loyalist, but I support it for a variety of reasons. They include stability of government, and the identity and accountability of the elected Member with the constituency. While I recognise that things have moved on, perhaps we should simplify the situation. The noble Lord, Lord Wigley, suggested STV for Scottish Parliament and Welsh Assembly elections. At least that would simplify and improve things to some extent. It should be looked at.

The existing system of AMS is almost the same in Scotland as in Wales. We have constituency Members and additional Members. Like the noble Lord, Lord German, I was a regional or list Member. There are two different kinds of Members. I confess that it was much easier for me as a regional Member to be without the constituency burden. I was a constituency MP for 26 years and I know the burdens. I did not have them as a regional Member. That is one thing that is wrong with there being two types of MSPs or AMs with different roles and pressures.

There is another thing that is wrong, relating to standing for both bodies. We, as a party, for three elections stopped people standing for both; and then we realised that that position was impossible to sustain. What happened was that initially—in 1999 and then in 2003—we held most of the constituency seats. Most of the SNP, our main opponents, were regional Members. The regional Members targeted a constituency seat, set up an office, adopted a candidate for that seat and challenged the local Member. That created problems as regards Members’ relationships with officials, and with MSPs of different parties raising the same kind of questions on behalf of constituents. That certainly created problems.

The other thing that the noble Lord, Lord Wigley, said about bringing in the AMS system was that it was to benefit the Labour Party. I wish to goodness that that had been the case. The Labour Party benefited from the previous system. The noble and learned Lord, Lord Wallace, knows this as one of the conspirators who achieved it on behalf of his party—although he was perfectly entitled to do it—knows that he and the Liberal Democrats negotiated with Labour in Scotland and managed to achieve the additional member system, which was replicated in Wales. I mean no disrespect, but Wales followed on and it strongly benefited the Liberal Democrats. I can understand why they are so enthusiastic about that system.

There are many things that need looking at. Even David Steel—I am sorry, the noble Lord, Lord Steel—who is one of the architects of this system, along with the noble and learned Lord, Lord Wallace, and others, is now disenchanted with the additional member system and thinks that we need to review it. This then relates to the point made by the noble Lord, Lord Elystan-Morgan, and others about the size of the Assembly. We are trying to make an artificial arrangement and assist the Government into having a 60-Member Assembly. It is a system that will not work with 60 Members, and having 80 does not seem to be a great improvement. I must say that a figure of 90 sounds about right. Of course, some people will throw their arms up and say that it will cost more money. I defended MPs’ salaries, which was not popular, but if 90 is the right number, we should have the courage to stand up and defend that view, and say that in order to have proper scrutiny, and a Government and Opposition who operate well, there needs to be more Members—especially if more and more is being devolved to the Welsh Assembly, there should be proper scrutiny of education, the health service and other devolved areas.

Then there is the question of double-jobbing. I had never heard that phrase until I read this Green Paper. I do not know who made it up. I do not think that the Minister had heard that wonderful expression. I think that officials suddenly came up with it. It is right to say that you cannot do both. If you choose an arbitrary point at which you must give up one seat when you get another, you have to be careful. Some degree of flexibility is needed. If there is still the AMS system for constituency vacancies, there must be a by-election. For regional vacancies, the next person on the list takes over. However, what happens for an independent Member? I hope that this never arises, but my lovely friend Margo MacDonald had to retire during her term in the Parliament. There is no mechanism for replacing her. That issue needs to be looked at, and I tried to raise it during our discussions on the Scotland Bill. The whole system needs to be reviewed, but this does not deal with that at all. It makes it worse. It does not deal with any of the problems properly; it makes them a great deal worse.

My plea to the Minister is this: go back to my good friend Cheryl Gillan. She is a Scot as well, which is interesting—

[Baroness Morgan of Ely]

She claims that she is Welsh.

[Lord Anderson of Swansea]

Others say she is English.

[Lord Foulkes of Cumnock]

She is an intelligent person. The Minister should go back to her and say that the time is not right to do this. It will make it worse, given all the implications that are looming. I agree with my noble friend Lord Touhig that probably the best and most intelligent thinking on constitutional reform that I have seen in 26 years in the Commons and now six years here is reflected in the alternative report that came out of the Joint Committee on House of Lords Reform. It asked for a comprehensive look to make sure—

[Baroness Randerson]

Does the noble Lord accept that under the current legislation, you cannot have the status quo without depleting the number of Assembly Members. I cannot recall without a close reading of the Government of Wales Act 2006, but I am absolutely sure that it must provide for an Assembly of 60. You could not have an Assembly of 60 under the current rules. Something has to be done and therefore a consultation is required.

[Lord Foulkes of Cumnock]

The noble Baroness may be right because she knows a great deal more about the detail of the position in Wales than I. If that is the case, perhaps I can make a plea to do the minimum necessary. Do nothing that will create problems in terms of the other things we are looking at. If it can be done, let us hold back until further consideration has taken place. I say that because the unintended consequences of constitutional reform can be very damaging indeed, as we have found in Scotland. We were told that we had a system of elections in which no party would ever have an overall majority, but of course that is manifestly not the case. As I say, sometimes the unintended consequences can be pretty dramatic, as they have been in Scotland. That is why we should think very carefully before embarking on something that could create many more problems than it is meant to resolve.

--- Later in debate ---

[Lord Anderson of Swansea]

My Lords, I have no interest to declare other than that I have enjoyed going down memory lane, being back in the Welsh Grand Committee and hearing contributions from a number of former colleagues there. Perhaps if I were to follow my good friend the noble Lord, Lord Touhig, I would confess that I was held up at Swansea High Street Station as I was trying to leave this morning by a queue of unemployed young people wanting to lobby me on the provisions of this Green Paper.

I follow the point about respect which is being made by the noble Lord, Lord Elis-Thomas. If we are to change constitutions, we should do so, as far as possible, after full and genuine consultation and on a non-partisan basis. If it were not so, the party which felt aggrieved would feel quite justified in altering the situation after another election. I felt that the reduction from 650 to 600 parliamentary seats was done in a partisan manner. It was a figure pulled out of a hat: it had a disproportionately adverse effect on Wales and will mightily reduce the weight of Wales at Westminster. The National Assembly is now a full and accepted part of the political landscape of Wales and is evolving in a highly mature way. The principle of respect mentioned by the noble Lord, Lord Elis-Thomas, should mean that, for a wholly internal Welsh matter like this one, we have some way of saying “Well of course it is a reserved matter; yes the Parliament here at Westminster has to have overall responsibility; but surely there should be some formula for subcontracting the real work on this to the Assembly”. In the spirit which the First Minister has shown, I am sure that there would be a very rigorous and proper debate there.

At this point in the progress of the Assembly—in a direction we know not where—they should be in the driving seat and we should be allowing them to make their own decisions. I agree with the Green Paper that the spirit is not an absolutist one. On the various issues which have been raised, people of good will can come down easily on one side or the other. To be fair to the Government, although they express their own preference, there is no closed book on this.

On the various proposals in terms of constituencies, we currently have a distribution of 40:20 and an overall number of 60. Whatever the merits of an increase to 80 or 90, I do not think Welsh public opinion would be happy to see this. I hear the arguments about leadership, but there is a strong tide flowing against more elected representatives. In spite of the recent accretion of powers to the Assembly and despite the fact that there will eventually be an overwhelming case for increasing the number, I am not persuaded that we have yet reached that point along the continuum.

I would like to have a personal chat with the noble Lord, Lord Elis-Thomas, on this, but the Assembly meets for two days a week, plus committees, and I do not have the feeling that it is overwhelmed. However, I hear the case that there is inadequate scrutiny and there may be an argument for finding more ways of having checks and balances on whichever party is the leading party in the Assembly. Whereas the House of Lords has a function as a check and balance on the Executive, there is no similar mechanism within the Assembly—but that is another debate for another time.

On the issue of 40:20, I recognise that there has to be a change and the most logical and easy one is to move to 30:30 in the mean time, using the 30 constituencies in Wales. However, I am not persuaded that the reduction in the number of seats to 30 will necessarily take place. If, as is very possible, the House of Lords Bill does not go through, particularly if the guillotine is not accepted—and the current mood among many Conservatives in the House of Commons is not to vote for the guillotine—there may have to be a deal where the Liberal Democrats would lose on the reduction of 650 to 600 and accept a delay on the implementation of the constituencies Bill and the Conservatives will say, “Well, House of Lords reform will go to another day”. If that is so, where are we left in respect of the consequential position in Wales if there is nothing to be consequential to? There is a strong case for not proceeding in haste on this but to see, if there is a deal struck and there is delay on the constituencies Bill, whether there is a case for not altering the status quo at this time.

A number of noble Lords have made the point that perhaps this Green Paper is not radical enough. The whole point of a Green Paper is that it sets out the stall and all the options. For example, it does not set out the possibility of having two Members per constituency in the Assembly, which I am not particularly wedded to but is worth looking at. That would be one means of having a gender balance. The gender balance is very good in the Assembly but it could be a means of institutionalising that. A whole series of more radical proposals could be looked at, which are worthy of debate, some of which I personally do not feel wedded to but at least could solve the gender balance institutionally. There are other, more radical things we could look at; for example, ways and means of having stronger checks and balances on the Welsh Government. The Green Paper is too timid.

On the length of term, the next general election is meant to be in 2015 and the next Assembly election in 2016. I am not a Chartist in favour of having elections every year, but there is an argument for shorter terms, particularly when there is not very much on the governmental side in Wales, to get closer to the people and give them the option of deciding on their representatives more frequently. There is also some merit in having cohabitation and a sort of creative tension between whatever party is in power at Westminster and the party in power at Cardiff. That is one thing that we need to look at.

On the question of the dual-hatting—

[Lord Foulkes of Cumnock]

Double-jobbing.

Scotland: Constitutional Future

Lord Foulkes of Cumnock Excerpts

Monday 26th March 2012 Lords Chamber

Asked By

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government when they expect to publish their response to the consultation on Scotland’s constitutional future.

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

My Lords, on 20 March the Secretary of State wrote to party spokespeople setting out an initial summary of the findings of the consultation. This letter was deposited in the Library and I set out the initial findings during the Committee stage of the Scotland Bill on 21 March. Officials are currently reviewing and analysing the consultation responses and a full summary will be published before the Third Reading of the Scotland Bill.

[Lord Foulkes of Cumnock]

My Lords, will the Minister confess that the Government have broken their promise to publish the response in advance of the Report stage of the Scotland Bill, which we are taking this afternoon? In order to make amends, will he discuss with his colleagues a way of getting every department of government, particularly the Treasury, the Department for Work and Pensions and the Ministry of Defence, to commission independent reports in advance of the referendum on the real costs of breaking up Britain?

[Lord Wallace of Tankerness]

My Lords, I hope the noble Lord will agree that we had a good debate about the referendum in Committee last Wednesday. I was able to give clear indications to the effect that, for example, the majority who responded to the consultation believed that powers should be devolved to the Scottish Parliament and that a great majority of those also supported the use of a Section 30 order. Our initial analysis shows clear support for a single question on independence, for the referendum to be held sooner rather than later, and for the involvement of the Electoral Commission. With regard to the second part of the noble Lord’s question, I hope that all departments will be very much engaged in setting out a positive case for the union.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Monday 26th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, your Lordships will remember that last Wednesday I indicated that agreement had been reached between the United Kingdom Government and the Scottish Government on a number of changes to the Scotland Bill and supporting non-legislative measures. Following this agreement the Scottish Government tabled a legislative consent Motion recommending the Scottish Parliament support the Bill. The amendments in this group are part of the changes to the Scotland Bill as a consequence of the agreement that has been reached between the Government and the Scottish Government to ensure that the Bill continues to retain the support of the Scottish Parliament, previously affirmed in an overwhelming vote of support in March 2011.

These amendments will remove Clause 7, Clause 12 and the associated Schedule 2, Clause 13 and Clause 26 of the Bill. With regard to Clause 7, the Government’s intention in pursuing the limited reference procedure contained in that clause was to prevent unnecessary delays to Bills in the Scottish Parliament, where the majority of provisions are considered to be within the legislative competence of that Parliament. The Scottish Government had raised concerns that this clause could have potential for introducing unintended consequences and delay in enacting legislation in the Scottish Parliament.

Likewise, during Committee consideration, the noble and learned Lord, Lord Boyd of Duncansby, raised concerns about whether the provision was necessary, as he believed that the existing arrangements appeared to be adequate. As a result of our discussions with the Scottish Government, we have agreed that this clause should be removed. The Scottish Government accept that in future, as at present, only a full Act of the Scottish Parliament can be referred to the Supreme Court, even if only a single provision raises competence issues.

Amendment 14 removes Clause 26 from the Bill. This would have allowed UK Ministers to implement international obligations on a UK basis, where it would be more convenient to take action on such a basis. The Scottish Government believe that this clause could undermine the clarity about which Parliament and which Ministers have responsibility for a particular matter. Both Governments acknowledge the importance of ensuring that all of the United Kingdom's international obligations are fully implemented across the UK on a timely basis.

The UK Government are willing to remove this clause, on the understanding of course that Scottish Ministers will ensure that any international obligations that fall within their responsibility are implemented on time. In turn, we have made clear to Scottish Ministers that the Government would be prepared to use their existing powers of direction under Section 58(2) of the Scotland Act 1998, should we have concerns about the implementation of international obligations within the remit of Scottish Ministers.

Clause 12 and associated Schedule 2 relate to insolvency. It would have returned legislative competence back to the United Kingdom Parliament in relation to all aspects of the winding up of business associations. The United Kingdom Government continue to believe that, where appropriate, Scottish procedures for insolvency should be in step with the rest of the United Kingdom. Our discussions with the Scottish Government have provided us with assurances that these concerns can be addressed without amending the devolution settlement in this respect. We therefore seek to remove this clause on the understanding that the Scottish Government will consider the modernisation measures for the devolved areas of winding up in Scotland introduced into the reserved insolvency procedures in 2009 and 2010; and have provided assurances that future changes made by the UK Parliament or Ministers in this area will be considered timeously by the Scottish Government in their area of competence.

Finally, Amendment 7 seeks to remove Clause 13, dealing with the regulation of health professionals, from the Bill. While the Scottish Parliament has had power to introduce for Scotland separate legislation in respect of regulating a number of health profession—that is, those not listed by reference to specific statutes in Schedule 5 of the Scotland Act—it has chosen not to do so. Rather, it has approved the use of the existing, reserved machinery, in the form of orders made under Section 60 of the Health Act 1999, to regulate new groups of healthcare professionals.

During our discussions with the Scottish Government they raised some concerns about this clause. The Scottish Government have provided us with clear assurances that they will work closely with the Government to ensure that consistent regulatory regimes apply to all health professions. Given these assurances, the Government are content to continue to develop policy in relation to regulating the health professions with the Scottish Government. The United Kingdom Government, through the Department of Health in England, will continue to engage closely with officials, not just in Scotland but also in the Administrations in Northern Ireland and Wales, to develop future policy proposals concerning the regulation of healthcare professionals.

The Government have received assurances on all these matters that the same effect that was sought by provisions in the Bill can be secured by non-legislative means. On that basis we have agreed to seek to take out the provisions from the Bill. I beg to move the amendments.

[Lord Foulkes of Cumnock]

My Lords, I wonder if this would be a good opportunity for the Minister in his reply to inform the House what will now happen in relation to the legislative consent Motion. It would be helpful if he could briefly give us a timetable about when it will be considered by the Scottish Parliament and the procedures thereafter. If there are any problems, how will this House be informed? Does he envisage that the legislative consent Motion will be passed through the Scottish Parliament without any difficulty; and are there any further procedures that may be necessary within this Parliament following the passage of the legislative consent Motion?

[Lord Boyd of Duncansby]

My Lords, before I address the amendments that the noble and learned Lord has spoken to, I should place on record the fact that the handling of this Bill has been nothing short of scandalous. To start three hours late, almost on the dinner hour, is quite unforgiveable. Yet again, those of us who are participating in this Bill are under pressure to sit longer and at unusual times to accommodate the Government’s business. At a time when we are trying in this House to demonstrate the evident utility of remaining part of the United Kingdom, of Scotland playing a meaningful role in Parliament, and of this Parliament playing a meaningful role in the affairs of Scotland, it smacks of contempt for the position of Scotland. I do not for one moment suggest that the noble and learned Lord has any part in this. I know that he is frustrated by the progress that has been made, but frankly those who are responsible for this should be ashamed of themselves.

As for the amendments that the noble and learned Lord has spoken to, we are pleased that agreement has been reached between the Government and Scottish Ministers. This allows for the passing of the legislative consent Motion. We recognise, of course, that compromises have been made on both sides, though those made by the Scottish Ministers from the demands that they set have clearly been much more substantial. It will be interesting to read how Scottish Ministers deal with the Scotland Bill Committee and Report when they come to deal with the legislative consent Motion. This group of amendments implements much, though not all, of the agreement. Inevitably, there are issues that we support, such as the removal of the clause on the partial suspension of Bills of the Scottish Parliament or the reference to the Supreme Court, and those that we find much more difficult, such as the regulation of health professionals. However, in the spirit of compromise, we support these amendments.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I add my voice to those who are complaining about the way in which this Bill has been handled. In his reply, it would be helpful if the Minister could indicate where he proposes to get to this evening. It is suggested we can get to Clause 25—that is 15 groups of amendments and we normally finish at 10 o’clock. Although I mean to be brief, I do not think that that will be achievable. It is extraordinary that a Bill of this importance is being treated in this way. When I complain to the usual channels, they blame each other. Something has gone very wrong with the business managers in this House and they need to get their act together.

The great argument for devolution, which I opposed, was that Westminster was not able to deal with Scottish legislation. I have been around Westminster since 1983 and I have never seen a piece of legislation affecting Scotland handled as badly as this piece of legislation has.

[Lord Foulkes of Cumnock]

Has the noble Lord heard the suggestion from the Government’s usual channels that if we do not make progress today and Wednesday we should consider sitting on Thursday to deal with it? Is that not an astonishing suggestion?

[Lord Forsyth of Drumlean]

It is an interesting suggestion and if I thought it was correct I might defer consideration of my amendment until then as I would be able to get a majority quite easily, even if I just voted for it myself.

The noble Lords, Lord Hannay, Lord Sutherland and Lord Foulkes, have added their names to Amendment 1A. This is an historic occasion and there will be few occasions in this House when these four names together appear on one amendment. It emphasises the nature of this amendment and the nature of the injustice it seeks to deal with.

The amendment simply says that residents in England, Wales and Northern Ireland should be treated in exactly the same way by the Scottish Parliament as other members of other European states. One would assume this matter was completely uncontroversial. The amendment is grouped with Amendment 59, which provides for the Scottish universities to be consulted and for a delaying implementation provision in order to deal with any administrative difficulties that might arise.

I was acutely conscious of this issue when I ran at the beginning of this year for rector at the University of St Andrews, I regret to say unsuccessfully. I was beaten by a better candidate who had more time to commit to a great university. I attended the University of St Andrews with Alex Salmond. He ran the SNP and I ran the Tories. We had 1,300 members; he had three. It has changed round since those days. One of the characteristics of the University of St Andrews was that lots of students came from the rest of the United Kingdom and that is still the case today. What outraged me was discovering that students sitting side by side in classes are expected, in the case of those who live in England, Wales or Northern Ireland, to pay £36,000 in fees while those who live in Scotland or Poland or Germany or Italy or anywhere else in the European Union pay nothing at all.

That is an utterly divisive and wrong policy. It has been exacerbated by the increase in fees and by the fact that Scottish universities have four-year degrees. This amendment seeks to create the circumstances which would exist in Scotland if it were independent. If we had an independent Scotland, it would not be allowed under European law to discriminate in this way against those people who live in England, Wales and Northern Ireland.

I know that some people—not everyone, including me—have received directly a brief from the universities in Scotland which have expressed concern about this amendment. My noble friend Lord Vallance has made representations to me that if it were passed it would mean that there would be administrative chaos for the student intake arriving in September, which is why the amendment allows for some delay while this matter is sorted out.

The Scottish Government have been saying that if English and Welsh and Irish students—and that means people who are resident in England, Wales and Ireland; they might well be Scottish students whose families have moved to other parts of the United Kingdom—could go to universities in Scotland for free, there would be a flood across the border. This is the most disingenuous and dishonest argument. Ireland has no fees. People can go from Northern Ireland to the Republic of Ireland and they deal with it by having a quota for the number of students that they will accept. If it is suggested that quotas would be wrong, there is already a quota in operation. There is a quota set by the Scottish Government on the number of students who come from Scotland and from other European Union countries. To suggest that they could not have people resident in the rest of the United Kingdom coming on the same terms as those from Germany and elsewhere is, to say the least, misleading.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend. I am not arguing that the Barnett funds should not be transferred from one budget to another but I am arguing for free tuition being available, in the same way that it is available for German and French students, for students from the rest of the United Kingdom. I do not think that is unreasonable. If the issue of funding will cause difficulty between the Governments, they have got lots of negotiations on and they should sort it out. If we believe in the United Kingdom—and I do with a passion—I can think of nothing worse than creating a situation where young people are burdened with substantial debt because they went to a Scottish university and they see everyone else in Europe going for free.

It could be argued that that arises from the Scottish Government’s policy of having free tuition fees. I do not argue against their ability to do that but they have to operate it in a fair and balanced way. This amendment would enable fair treatment for all students throughout the United Kingdom. It may not be perfectly worded. I would be very happy if my noble and learned friend said that he could not accept this amendment but that he would bring forward one of his own at a later stage of the Bill which would remedy the problem. I do not want to detain the House as I am anxious that if we divide, everyone will have disappeared. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I was pleased to put my name to the amendment of the noble Lord, Lord Forsyth. It is not something anyone on this side does lightly. However, as I have said before, even a Tory is not always wrong and on this occasion he is absolutely right—spot on. It is an issue of fairness. I shall be very brief.

It is an issue of fairness when students from Lithuania and Poland can go to Scottish universities for free, but students from England, Wales and Northern Ireland have to pay full fees. As the noble Lord, Lord Forsyth, said, there is double jeopardy. The parents of the students from Poland and Lithuania do not contribute to the costs of Scottish universities, but the parents of the English, Welsh and Northern Irish students pay UK taxes. They have to pay full fees and the taxes that subsidise Scottish universities.

I know that there are concerns about funding. These have been expressed by the chancellor of the Royal Conservatoire of Scotland, the noble Lord, Lord Vallance, and in a letter to me from the noble Lord, Lord Smith of Kelvin, the chancellor of the University of the West of Scotland. However, that is not a matter for us; it is a matter for the Scottish Executive. As the noble Lord, Lord Forsyth, said, they get billions of pounds from the block grant. It is a matter of priorities. Scotland has free care for the elderly, free prescriptions for everyone, including the very rich, and a whole range of other things that are provided. Surely this is something to which they can give consideration. Without pre-empting what the noble Lord, Lord Sutherland, will say, he has looked at the funding in much more detail and can make suggestions. If the Scottish Executive need help, I am sure he would be very willing to provide it—at no cost, I presume.

Finally, I say to my colleagues on the Labour Benches that we now have no Whip on this matter. Therefore, we have the opportunity to vote as we wish. I hope we will make the right decision in voting on this and support the amendment. I have spoken to Labour MSPs who have supported what the SNP Administration are doing. They said that they did not want to do it and regretted having to do it but had no option because of how it was put to them in terms of funding. We have an option: we can support the noble Lord, Lord Forsyth, and we can support fairness. I urge noble Lords so to do.

[Lord Sutherland of Houndwood]

My Lords, the position before us requires a brief summary of how we got to where we are. I see a number of Members in the House who did not sit through all the longueurs of the Committee stage. To them I say, “Welcome to the Michael and George show. It’s amazing”. That said, why are we where we are? How did we get here and what is it? If you live in Dublin or Dundee, you pay no fees. If you live in Belfast or Berwick—I do my shopping in Berwick—you will pay fees at a Scottish university. We could go on with examples.

We all accept that these are unfortunate consequences of administrative procedures. We might also accept that they are unintended consequences of administrative procedures. However, I ask noble Lords to note that they are divisive consequences of administrative procedures, of which the only beneficiaries are those who would turn that divisiveness into the final division of separation. This suits their hand of cards.

The current situation over fees was not sought by the Scottish universities. I wish to stress that. There were some who hinted that the Scots were desperate to charge the Sassenachs et cetera large fees. This was not sought by the Scottish universities. Like the members of the Labour Party in the Scottish Parliament, this was imposed on them.

My reckoning is that this year approximately £28 million to £30 million will be withheld from the Scottish universities grant. That money has to be found by the universities if they are to continue functioning. It will be withheld on the assumption that they can charge students from RUK, as they call it—the rest of the United Kingdom—fees that will fill that gap. That is just the start. The estimate is that the figure will be for just the first year. Over another four years, by 2015, the reduction in funding for Scottish universities from the Scottish Government might be £120 million. This is surely not something with which we can rest content.

By negotiation and ingenuity, the Scottish universities have avoided having an inadequate level for rest-of-UK students imposed on them. This was a risk for them. They have the power to vary their fees, charging up to £9,000 a year. Clearly, several of them will do this. I say to them, “Well done”. At that stage, I would have done the same but why did we get to that stage? The horse has already bolted through the stable door with the first £30 million: the Scottish Government have withdrawn this funding. As realistic chief executives, they did not have much choice other than to enter into a negotiation with which I suspect none of them is particularly happy.

The universities have also done well in devising bursary arrangements, for which I pay tribute to them. I know about the situation in the University of Edinburgh, my former university, in detail. It has done well and has the best bursary scheme anywhere in the UK for students in need. Some of the universities down here could take a look at that; it might help with some of their problems of recruitment.

Scottish universities also have a legitimate fear that, if this amendment were to be passed in its current form, without the following amendment, it would cause chaos if it were imposed for 2012-13. There may have been a hint of that earlier but this amendment does not imply imposing these new procedures for next year. Of course there would be chaos. However, we can deal with that—I will come back to it in a moment. I would not support an amendment that caused such chaos to the intake of students preparing for entry in 2012. That is common ground between all those who have put their names to the amendment. These are short-term consequences and we can deal with them. I completely understand that the short-term consequence would be to cause chaos now but we can deal with it by setting the date back.

However, there are longer-term consequences and implications. This is what I can only call another example of “devo drift” by practice, rather than by legislation. It inserts a further series of divisions, in this case between the young people of the rest of the UK and those of Scotland. This “devo drift” will not, I hope, be subject to another negotiated deal with the Government in Scotland. Are there any pegs that should be put in place? For example, if the next step gave Scotland a capacity in relation to research councils, which is a reserved business at the moment, it would be absolutely horrendous for Scottish universities. I see nothing in current attitudes to suggest that it might not be the next stage along the way. The Scottish universities would then have to decide whether negotiation was a wise practice.

That is all very easy to criticise but how do we proceed? In its briefing note, of which I was eventually given a copy by indirect means, Universities Scotland suggests that everything had been done to raise the question of the European demand that European Union students should not be charged fees. Indeed, the briefing note claims that the Education Secretary in Scotland,

“has actively pursued this issue in Europe and UK support for this issue, including voices within the Lords, would be welcome”.

I support him on that issue. Now what will he do about it? There is a question there to be looked at and we need a bit of time.

More importantly, I suggest that there is a way forward, and we need a bit of time for that. There should be a call for a UK-wide discussion, with all regions—all the rest of the UK—and Westminster, with the relevant Secretaries of State sitting down together and setting a quarter of places for RUK students in Scotland, an equivalent quota for EU students in Scotland, and a quota for Scottish students who go to universities in the rest of the UK. Within that, there may be room for financial manoeuvre because the Scottish students who take places in English universities displace England-based students for whom the Government here would have to make some provision, albeit that they would be charged fees.

--- Later in debate ---

[Lord Vallance of Tummel]

My Lords, I declare an interest as the chairman of the Royal Conservatoire of Scotland, which as a higher education institution would be directly affected by the amendment if it were agreed. I will not take up much of your Lordships’ time, but I feel that I should draw attention to the chaotic practical consequences that the amendment would have on the Scottish universities and other higher education institutions, which have been levying modest fixed fees on students resident elsewhere in the UK, without controversy, since 2001, in part to manage the flow of students into Scotland.

The decision made here in London to introduce market-based, variable fees up to £9,000 per annum in English, Welsh and Northern Irish universities, changed the game radically. It demanded a response if there were not to be a veritable tsunami of applications from students south of the border for far less expensive places at Scottish universities, with clear consequences for potential students resident in Scotland, and for funding by the Scottish Government. That Government’s decision, on which I pass no judgment one way or the other, was to withdraw funding for students resident elsewhere in the UK, and to allow the Scottish universities to apply the same market-based, variable-fee regime for such students as they would have enjoyed, if that is the right word, had they stayed at home.

Some, including Universities Scotland—the representative body for all the higher education institutions—would say that that was entirely reasonable in a UK context. However, it is also anomalous, particularly as regards the rest of the European Union. However, anomalies of one kind or another are almost inevitable in areas where competence has been devolved to Scotland. Various practical problems stemming from the legitimate pursuit of widely different policies on either side of the border will have to be addressed. In the case of higher education, the EU requirement to give preferential treatment to students resident elsewhere in Europe, as against those from other foreign countries, simply compounds the anomaly.

The substantive issue is how best to deal with such anomalies. The amendment, although on the face of it eminently reasonable in seeking to give European Union benchmarks pride of place, would not only unnecessarily and indefinitely constrain the scope for manoeuvre here in the United Kingdom but would create a major and immediate practical problem for Scottish Universities, for the simple reason that the new fee regime has already been implemented, as we have already learnt.

[Lord Foulkes of Cumnock]

Surely Amendment 59 deals with the problem that the noble Lord outlined.

[Lord Vallance of Tummel]

I am coming to that. For the next academic year and for the years beyond, places have already been offered to and readily accepted by students who are resident south of the border. Bursary and scholarship arrangements have been substantially modified to help them. Indeed, the financial basis and plans of Scottish universities for the years ahead are dependent on those arrangements, which, as of today, are quite legitimate under the provisions of the Scotland Act 1998. I appreciate the willingness of my noble friend Lord Forsyth to delay implementation, but the question is for how long. A year is simply not long enough.

--- Later in debate ---

[Lord Browne of Ladyton]

I appreciate that it has got much worse but the catalyst was a similar action by the coalition Government in that in England they transferred the burden from the public purse to the student. It was a similar action. This is not the place to debate whether student fees in a particular place are right. In the context of devolution, the debate is about whether it is appropriate for your Lordships’ House to impose on the Scottish Parliament an obligation, or a restriction, on a power that they have been exercising in a particular way for the best part of 10 years, when no attempt has been made to have a serious cross-UK discussion about the situation to see whether it can be resolved.

[Lord Foulkes of Cumnock]

I am not going to argue that ultimately this Parliament can decide anything it wishes in relation to any part of the United Kingdom. I certainly would not argue that because I respect devolution and was a great advocate for it. Could my noble friend deal with the point raised by the noble Lord, Lord Selkirk of Douglas, about discrimination. Discrimination is still a matter for the United Kingdom Parliament—it is a reserved area—and is it not overwhelmingly an issue of discrimination that has been raised today?

[Lord Browne of Ladyton]

I am happy to deal with that point, but I will deal with it directly by responding to my noble friend on this issue. My noble friend was a Member of the Scottish Parliament for four years, during all of which time the Executive of that Parliament had the differential fee. I am not aware of my noble friend at any stage during his time in that Parliament raising this issue as one of discrimination against students from England, Wales and Northern Ireland or suggesting that something should be done—where the power lay, and where it was created.

[Lord Foulkes of Cumnock]

I shall answer my noble friend’s question and I hope that he will answer mine. It never came up specifically as an issue. My noble friend needs to take account of the point raised by the noble Lord, Lord Steel, that we are talking about an issue entirely different in scale. As the noble Lord, Lord O’Neill of Clackmannan, said in relation to the National Gallery of Scotland—can you imagine that gallery saying, “Are you Scottish? You can come in free”. If the gallery had then asked an English person to pay £1, they might have said, “Okay, it’s only £1”. But imagine that they were asked for £10, £20 or £30—that is the kind of scale that we are talking about. It would be entirely wrong, and this is the same principle. It is discrimination.

[Lord Browne of Ladyton]

It is discrimination, but I do not think that a little discrimination is any better than a lot of discrimination. The fact of the matter is that there has been discrimination for 10 years, and we have established in this debate that no serious attempt has been made across the United Kingdom to deal with it.

I will deal directly with the point raised by the noble Lord, Lord Selkirk. There is an argument, and I am attracted by it, that we reserved to this Parliament the right to deal with issues of discrimination and that, as a matter of law, we can deal with it here. I am not learned enough in the law in this area to know whether that is so, but as a matter of law, in terms of devolution, we can deal with anything; we are the sovereign Parliament. We do not need to rely on the reserved area to claim our right to deal with it—we can deal with anything.

This is politics and we are doing this in the context of probably the greatest challenge that the union of the United Kingdom has faced in any of our lifetimes. Those of us who believe in this union are trying to manage a difficult political situation in which all of the parties represented in the Scottish Parliament have their DNA in this discrimination to some extent. I exclude the noble Lord, Lord Pearson, from that. We now decide in an entirely opportunistic way—encouraged, as the noble Lord, Lord Forsyth, points out, by the nature and the scale of the discrimination—to deal with it by imposing these conditions.

And when do we do it? We do it at a time when a Government Minister can come to the Dispatch Box and say that they have just negotiated a legislative consent motion to deliver this Scotland Bill, which is the policy of all our parties after weeks if not months of negotiation. We are just at the point where we can do something that can ensure that all the negotiations and discussions are wasted. We are back to square one again, back into confrontation and back into giving those who lead the Scottish Government the script that they want: that the unelected House of Lords has told the people of Scotland what they can do. They will say, “They give us devolution with one hand and then take it away. They let us use it for 10 years and then, when we use it in a way that they don’t like, they take it away. That is exactly why we need to be independent of these people”. This is bad politics in my view.

There is a way forward. We should accept all of our responsibilities for the situation that has been created by the actions and the interactions of the Government at the UK level with the history that was left to the nationalists when they became the Scottish Government and the challenge that they faced in terms of university funding. We should sit down together and try to resolve the situation—not in the interests of whether we have the right to impose this but in the interests of the young people whom we want to live, work and be educated together for the benefit of the United Kingdom. That seems a much more sensible way of dealing with the situation, rather than trooping through the Lobbies tonight and making a point which will be to the detriment of the issue that most of us feel passionately about—the preservation of the union.

--- Later in debate ---

Finally, I say to my noble friend Lord Foulkes, whom I respect enormously, that this is not a free vote as far as we are concerned. We support the maintenance of the status quo. I am happy to support a call for both the Government of the United Kingdom and the Scottish Government to try to resolve this, but this is not a free vote. This is a whipped vote, as far as our party is concerned.

[Lord Foulkes of Cumnock]

I wonder if my noble friend could explain why I got a text saying, “Whip off”.

[Lord Browne of Ladyton]

My noble friend is an experienced Member of this House and has been a Member of other parliaments. I understand this position, and I think that he should understand the position, too. The Opposition Benches are voting against this amendment. He is not obliged to vote.

--- Later in debate ---

[Baroness Anelay of St Johns]

My Lords, something has clearly gone wrong in the transmission because I was not aware that my noble friend was going to make that comment. I know that all those taking part in debate on the Scotland Bill consider it important, as does the rest of the House that may be listening to it. It is a usual channels agreement that the Bill will be concluded by the end of Wednesday evening. We discussed this earlier and that commitment remains. There will be a discussion later among the usual channels about what progress should be made tonight. I am aware that we have just taken two hours on one amendment. That was an amendment very dear to the hearts of those who took part in it, but the overall time allocated to Report was agreed and the intention is to keep to the agreement that Report should be concluded at the end of the Wednesday sitting. As I say, we will shortly be discussing in the usual channels what the last amendment to be considered tonight shall be.

[Lord Foulkes of Cumnock]

My Lords, this Bill has been treated abominably at all stages. On one occasion all of us sat around all day—afternoon and evening—while the welfare Bill went on and on and on. We were led to believe by the government Chief Whip that the Scotland Bill would be taken that day. Then we were told summarily: “You can go, off you go”, as if it was of little concern that the Bill was being dealt with in such a way. It is outrageous. We were then told that we would have the day’s debate today. When did we start? Not until the evening, after a very substantial, albeit important, debate. I am not saying that the debates that took place earlier were not important—but so is the Scotland Bill. It is outrageous that we should be dealt with in such a way.

[Baroness Anelay of St Johns]

My Lords, the noble Lord is good at perorations. I will simply keep to the facts. I had intended that the Scotland Bill should start today, as first business. The Opposition decided that they wished to have the other debates before it. The House therefore had those debates. I agree that the Scotland Bill was very much disaccommodated by this. It might be convenient if the House were able to listen to me. I know that the noble Lord, Lord Foulkes, likes interventions, but I wish to conclude what I am saying, which is that it was very difficult on the first day for those waiting for the Scotland Bill because of the time taken by the Welfare Reform Bill. I object to the implication—the clear indication, in fact—that I cared nothing for the Scotland Bill that day. I did care, and we found another date for the Scotland Bill. It is the view of the usual channels that we should continue with this. If the noble Lord, Lord Foulkes, wishes to say more he can, but it is a courtesy in this House to let one Member finish speaking before the next gets up.

[Lord Foulkes of Cumnock]

The government Chief Whip says that I like interventions. It was I who was speaking and she who intervened. This is the way that we have been treated all the way through the Bill. Over the weekend, I found out that we were going to have an extra week of recess. In that week we could have carried out proper consideration of the Bill. As was pointed out earlier, we did not have the proper time between Committee and Report. We are being treated abominably and it is absolutely disgraceful. The government Chief Whip should realise that it is not the Opposition's responsibility to programme business in this House; it is the Government’s responsibility and it is her responsibility, and she should take the blame as well as the credit.

[Baroness Deech]

My Lords, I suggest that the valuable time of the House would be better used by allowing me to have my dinner break debate and then using such time as is left at noble Lords’ discretion.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Wednesday 21st March 2012 Lords Chamber

[The Earl of Caithness]

I wonder whether my noble and learned friend can help me with the parliamentary procedure. We are discussing the referendums this afternoon. When are they going to be dealt with on Report? As my noble friend Lord Forsyth has just said, they were delayed at this stage. Is it likely that we will be discussing them on Monday? If so, those of us who have to travel to the far north of Scotland tomorrow will have precious little time to table amendments. It will give us at least a day or two longer to consider matters and read the Official Report if they are to be dealt with on Wednesday. It is crucial for us in how we conduct our business to know whether the referendum issue will be taken on Report on Monday or Wednesday.

[Lord Foulkes of Cumnock]

I understand the noble Lord’s frustration about the whole process and the way it has been dealt with. The noble Earl, Lord Caithness, makes a very good point, which others made earlier, about the time between Committee and Report. The noble Lord, Lord Forsyth, also made that point effectively.

I think we should absolve the noble and learned Lord, Lord Wallace of Tankerness, of blame in relation to this. He has been faced with great difficulties from a number of sources. I was going to include the noble Lord, Lord Forsyth as one of the people who created some difficulty for him, but I will just put that to one side for a minute. The noble Lord has had to labour with a Cabinet which has only recently begun to realise some of the implications of Scottish independence and what it might mean—to our defence policy and to a range of other things—if it were to go ahead. It has taken some time for it to realise the enormity of the possibility of Scotland seceding from the rest of the United Kingdom, and that is something that the noble and learned Lord, Lord Wallace, has had to deal with. He has also had to deal with a very difficult negotiating body in the Scottish Executive, and its leader in particular. Driving a bargain with it is not easy.

We should consider that earlier this week—and I hope I am not giving any secrets away—we may not have had even this letter and the Statement today if it had not been for the intervention of the noble and learned Lord, Lord Wallace of Tankerness. Admittedly, he was under pressure from the Opposition—both the Front and Back Benches—and no doubt from the noble Lord, Lord Forsyth, as well, but it is to his credit that he got us the Statement. Otherwise we would really have been dealing with it in the dark.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord. I have no complaint about the noble and learned Lord, Lord Wallace, but I do not know what the noble Lord thinks he has. He has a letter from the Secretary of State that states that his preferred solution, which is to use the existing Scotland Act to provide for a referendum, was supported by a large number of people and that he is hopeful that he can reach agreement with the Scottish Government. Frankly, we have known this for some time. I should like to know what the numbers were, what people said and what the Government’s attitude is. What is the point of us debating these matters if we do not know the Government’s policy? This has nothing to do with the Cabinet; it is about the conduct of business in Parliament, and we are being short-changed.

[Lord Foulkes of Cumnock]

That is a point on which I agree with the noble Lord, Lord Forsyth. Indeed, I have a Question down for next Monday asking when the result of the consultation will be published. I had expected it to be published before now, and certainly for this debate—and, if not, at least for Monday’s debate. However, we also have the information contained in the Statement made today by the Secretary of State. It makes substantial progress—we will discuss this later—in its reference to transferring tax and borrowing powers, ensuring that the new borrowing regime is sustainable and securing further devolution in future.

As someone who favours devolution, I find all these moves very positive. It is very encouraging to see that agreement has been reached. It is also very helpful to have this Statement so that our debate this afternoon can be informed by the details of the agreement that has been reached. I share with the noble Lord, Lord Forsyth, some reservations about the general way in which the Bill has been dealt with, but in the past few days—in particular, thanks to the noble and learned Lord, Lord Wallace—we have been helped to make the debate better informed and more accessible.

[Lord Stoddart of Swindon]

My Lords, I will not interfere in Scottish matters; I would not dare. However, I have concerns about the business of the House and the way in which the House is being treated. Last Thursday the House sat until, I think, 10.38 pm. Last night it sat until 12.43 am. That is not good enough, particularly when Members of the House of Commons enjoy the privilege of going home very much earlier.

We in this House have repeatedly implored the Government not to bring forward so much legislation that is so badly produced that we have to spend a huge amount of time not only discussing the overload of legislation but correcting the many mistakes that have been made in the framing of that legislation. At the end of every Session, as far as I can remember, we have come up against the problem of time and important Bills have been rushed. The noble Lord, Lord Forsyth, and other noble Lords who spoke were absolutely right to express concern and to raise the matter of rushing through a very important constitutional Bill at the very end of a Session.

I intrude into the debate to express the hope that for the next Session the Government will recall what happened in this two-year Session. If they cannot get things right in a two-year Session, perhaps we may hope that they will reconsider their programme for the next Session to ensure that both Houses of Parliament can consider legislation at a proper pace and level without being kept here in the watches of the night, and that they will produce less legislation that is better prepared so that we can have a little more time to discuss Bills at leisure, at proper length and as deeply as necessary.

--- Later in debate ---

[Lord Wallace of Tankerness]

I ask my noble friend to forgive me if I have misunderstood or misinterpreted what he said. A Section 30 order can take into account issues such as the use of the Electoral Commission. It can also take timing into account, as it can on the matter of whether there is one question or more. These are the things that we will seek to negotiate in a Section 30 order.

[Lord Foulkes of Cumnock]

If we go down that route and there is an agreement between the Scottish Executive and the UK Government about a Section 30 order and it is brought forward, can the Minister confirm that it could be debated in both the Houses of this Parliament?

[Lord Wallace of Tankerness]

Indeed, not only would it be debated but it would be voted on in both the Houses of this Parliament. If we move into Committee, we can probably have a much wider debate on these matters.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am in a position similar to that of the noble Lord, Lord Browne, in having to deal with matters that hitherto were dealt with by my noble friend in the Treasury. I fully accept that my noble friend’s amendment is a hook. I share the view expressed by the noble Lord, Lord Browne—

[Lord Foulkes of Cumnock]

Perhaps I may take the opportunity of sending good wishes to the noble Lord, Lord Sassoon, for a speedy recovery.

[Lord Wallace of Tankerness]

I hope that I did not imply that he was ill. I am not aware that he is.

[Lord Foulkes of Cumnock]

I assumed that he had retired hurt.

[Lord Wallace of Tankerness]

I am sure that, after all the good will that has been expressed, he will relish coming back to the fray next week. I do not for a moment think that he is ill; perhaps I may quash that rumour.

As the noble Lord, Lord Browne, indicated—and perhaps my noble friend Lord Forsyth would accept—to include only the people of England and to exclude the people of Wales, Northern Ireland and Scotland would not be appropriate. We should bear in mind that the proposals in the Bill were in the manifestos of the Conservative, Labour and Liberal Democrat parties, which applied throughout Great Britain at the last election. My noble friend indicated that he wished to return to the issue of the no-detriment principle, which he pursued on Thursday of last week. It prompted my noble friend Lord Sassoon to write a letter. My noble friend asked if it could be put in the Library. I will make sure that that is done, because it has the benefit of a flow chart that I could not begin to describe from the Dispatch Box.

I will try to explain—I accept that I will not necessarily succeed—what the no-detriment principle is about and why we believe that it is fair and does not detract from accountability. I agree with the noble Lord, Lord Kerr of Kinlochard, and with my noble friend Lord Caithness that more accountability is crucial and that the Scottish Parliament should be accountable not simply for spending money but for raising it. My starting point is that it is wrong to suggest that the no-detriment principle is about allowing the Scottish Government to have their cake and eat it.

The first flaw in the argument is to suggest that if there is a tax benefit—for example, through the measure in today’s Budget to raise the personal allowance, which I very much welcome—it will accrue to the Scottish Government. It will accrue to Scottish taxpayers, along with those of England, Wales and Northern Ireland. As I will seek to explain, it has an effect on the revenue that would then be generated for the Scottish Government.

--- Later in debate ---

mean? Would that, for example, include giving them powers to decide the thresholds for income tax purposes? Making an open-ended commitment of this kind without specifying it is bizarre, especially in the context of a Bill which delivers extraordinary additional powers that no one seems to know about. Why have the Government agreed to talk about giving further powers, when many of those further powers are already contained in the Bill? When we were discussing these matters earlier in Committee, I was quite firmly and rightly told by the noble Lord, Lord Browne, and by my own Front Bench that we have to concentrate on the key issue, which is whether Scotland wishes to remain part of the United Kingdom. Opening up this question of further powers without saying what they are is a hostage to fortune. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I welcome the fact that a legislative consent Motion has been agreed. I also welcome its terms; I mentioned that earlier, and we may have the opportunity to discuss it later on. However, I want to refer briefly to the very important point made by the noble Lord, Lord Forsyth, almost as an aside in his introduction. It was about the speed by which this legislative consent Motion was agreed within the Scottish Executive.

At the end of this week, I am going to one of the most newly independent countries to talk about its request for accession to the European Union. The EU has made it clear to that country that it will not get membership—I am sure that the noble Lord, Lord Williamson, knows exactly what I am taking about—until it can show that there is a clear separation of powers between the legislature, the Executive and the judiciary. It is right that the EU should impose that condition upon the application, and we are going to discuss it and what needs to be done to change the arrangements in the country’s constitution.

It occurs to me now that the situation in Scotland, which has come about because of a series of events, is presided over by someone chosen by the First Minister, and that there are committees—my noble friend Lord McConnell knows more about this than any of us, and I know that the noble Lord, Lord Steel, has looked at it carefully—which were supposed to be the checks on legislation as it went through and to challenge and question what the Executive were doing, as indeed they did until the most recent election in Scotland. These committees have SNP majorities. With committees here, where there is a government majority in the House of Commons among committee members, we get a degree of independence and challenge to the Executive. There is none of that in Scotland now.

Even here in the Cabinet—if the situation is still the same, and I understand that it is—before agreement is finally reached, a letter or memorandum is sent around the various departments concerned, agreement has to be reached by the department and there is some consensus. That takes time and some thought. In Scotland now, all it needs is for one man to make a decision that something will happen and it is automatically agreed by his Cabinet and Executive, which are beholden to him, and by his legislature, which is also beholden to him. That is not good for democracy. It would not be acceptable if an independent Scotland applied for membership of the European Union, which is another reason that could rule it out. That situation is very worrying and something that we have not really addressed in this Committee but should have done at some point.

Apropos this concern, I said jokingly in a tweet yesterday—the noble Lord, Lord Forsyth, laughs, but this is a modern form of communication and even people of my age have to get used to it—that Scotland might need a second Chamber, and I referred to it mischievously, as I have done before, as a “House of Lairds”, which is just a name for it. I was not suggesting that the hereditary Peers from Scotland should be recalled for that purpose—certainly not the noble Earl, Lord Erroll, for example, but that is another story. Interestingly, from a number of people on Twitter who do not normally agree with me I had a lot of agreement; they are genuinely worried that there is no check and balance on what is decided by the Scottish Executive. This issue is worrying, and it is time that those of us from Scotland who are concerned about Scottish democracy paid some attention to it.

[The Duke of Montrose]

My Lords, I would like to probe a little further the question that my noble friend Lord Forsyth has raised about where we stand on legislative consent Motions. I do not know if what I have will throw any more light on the topic but, as noble Lords will know, we have spent quite a long time considering when a legislative consent Motion might appear. I draw to your Lordships’ attention that there is enough evidence from what Ministers have told us that primary legislation does not require legislative consent.

I am sorry to see that the noble Lord, Lord Sewel, is not in his place because much of what I have to talk about refers to what he told us in this House in 1998. He and others in the House will recall that in the Committee stage of the Bill the question of an application of an Order in Council as being the route by which amendments to Schedule 5 could be achieved was discussed. It is just possible that some people’s recollections might, like mine, be a little hazy since most of this discussion took place at around 11 pm—something that we were beginning to get used to the other day. There was a serious probing amendment, which said that the power to use the Order in Council mechanism should be removed in regard to Part I of Schedule 5. The mechanism was insisted on by the Minister because it was the Government’s intention to make it a condition of procedure that the Scottish Government had to agree to alterations to Schedule 5. Great emphasis was placed on this, which was considered the unequivocal virtue of the Privy Council process. However, the Minister’s view was clearly that primary legislation did not require the agreement of the Scottish Parliament; this can be found in Hansard at col. 849 on 21 July. Therefore, the Scottish Parliament would officially have no say in any primary legislation.

Here, today, we will be only too aware that on previous days the Committee has endeavoured to add amendments to the Bill that would bring in more detailed recommendations by the Calman commission and others. So far, all these efforts have been rejected and many of the amendments at this stage appear to aim to introduce them using the Privy Council route at a later stage. From the approach taken by the Labour Government before us, it seems that any or each of these Orders in Council will properly be subject to a legislative consent Motion from the Scottish Parliament, which is different from the one that we are talking about today. As we have proceeded with this legislation, a great deal has been made of the idea that we are looking for the completion of the Motion before we get on to the Bill.

It is important that the procedures that are required should be absolutely clear. Since this is primary legislation, it would appear—from applying the explanations that were offered to us—that the legislative consent Motion is not strictly necessary for the Bill but would be for the statutory instruments to implement it. Could the Minister tell the Committee whether this argument for seeking some sort of agreement with the Scottish Parliament is just part of a concordat or is being introduced for politeness, or whether some legislative measure has recently been introduced that requires its fulfilment? If not, is it not true that in hard legislative terms the consent of the Scottish Parliament is not required?

--- Later in debate ---

Moved by

[Lord Foulkes of Cumnock]

87: Clause 43, page 33, line 2, at end insert—
“( ) Notwithstanding the other provisions of this section, no provision of this Act may come into force until a referendum has been held in accordance with section (Referendum about Scottish independence).”

[Lord Foulkes of Cumnock]

My Lords, we now come—at last, some noble Lords may be saying—to what I understand is the first of two substantial debates on the major question of this Bill. It is the one we have been waiting for with great anticipation, holding off until the report of the consultation has been published, on the referendum. I am not going to manage to do it in 140 words, let alone 140 characters, although I can say to my noble friend Lord O’Neill that whole stories, whole sagas, can be written in 140 characters. I will give him just one: Heart of Midlothian two, Hibernian nil. That describes 90 wonderful minutes last Sunday which I am sure he would wish to forget.

However, let us get on to the substantive issue of the evening. We are talking about the future not just of Scotland, but of the whole of the United Kingdom. What happens to Scotland in an independence referendum will have a huge effect on the whole of the United Kingdom, some of the detail of which has not yet been examined. We have started discussing and debating them at last—they are principally some of the effects on Scotland. However, the Joint Committee on the National Security Strategy, for example, only recently started to discuss some of the security implications of an independent Scotland, in relation to the independent deterrent, membership of NATO, and a whole range of other things. There would be huge implications for the whole of the United Kingdom if Scotland was no longer a part of it.

Any referendum, or referenda, should be organised on an agreed basis that we all understand—that the Scottish Parliament and all of its Members understand; that both Houses of this Parliament and all the Members understand; and that the Scottish people understand. The UK consultative document is absolutely right in saying that the three essential elements should be that it must be legal, fair and decisive. First, it must be legal because some people will be predisposed to challenge the basis of a referendum that is not carried out on a legal basis. I cannot say nothing will be open to challenge, but there must be a minimal likelihood of it being challenged. That would be something that would be conducted if not by, then with, the authority of the United Kingdom Parliament.

Secondly, it needs to be fair. That will ensure that all of us will be satisfied that we have had the opportunity of putting our case to the Scottish people fairly. Questions about the timing of the referendum, and the question to be asked—I will come back to that in a moment—are absolutely essential in relation to that. People who seek to choose the timing to make sure that they get a maximum vote for separation are not giving the Scottish people the best opportunity to make a balanced judgment about the referendum. That is clearly the idea of waiting until 2014. The euphoria of the Commonwealth Games, the Ryder Cup, and the anniversary of Bannockburn, will get Scots all fired up, even those from Shetland. I am sure the noble Lord, Lord Lamont, will find a way of coming to a specific amendment in relation to Orkney and Shetland as well.

Of course the timing is also being suggested for 2014 because in the run-up to the United Kingdom election, the SNP wants to try to polarise the debate between a certain kind of Scotland and a politically different United Kingdom, and that would also be to its advantage. I will come back to the question to be asked in a moment.

Thirdly, it has to be decisive. It needs to be clear that the referendum will settle the issue. We know from the experience of Quebec that it may not settle it forever, but it must be settled at least for the foreseeable future. If there is a big enough majority against separation, perhaps it will be forever or at least for our lifetimes, or for a generation.

My Amendment 87 is to hold over provision of this Act until the referendum has taken place. The Amendment 88 tabled by the noble Lord, Lord Forsyth, supported by another former Secretary of State the noble Lord, Lord Lang, and by the noble Earl, Lord Caithness, would have the United Kingdom Government take action to exercise their undoubted right to call a referendum by Order in Council. That is clearly unacceptable to the Scottish Parliament. I would not be averse to it, I have made that clear on a number of occasions. However, on the basis that I suggested earlier—that this whole arrangement needs to be accepted by all the parties involved—we must think carefully before exercising that right.

[Lord Forsyth of Drumlean]

Is the noble Lord saying what I think he is saying? Is he saying that if we proceeded by using Section 30, and if the Scottish Parliament declined to give consent to that, we should not have a referendum? Then the only alternative would be for the Westminster Parliament to pass the necessary legislation without support. He appears to be ruling that out. I hope he is not.

--- Later in debate ---

[Lord Foulkes of Cumnock]

The noble Lord is anticipating something I am going to say. For once, exceptionally for me, I have written down the argument in some sort of order. I was going to say, before he interrupted me, that we should not rule out such an option if the circumstances made it desirable, or perhaps made it the only acceptable option. That could be because the timing was contrived, in relation to the proposed referendum by the Scottish Parliament, or because we would not succeed because we could not get agreement in relation to a Section 30 order. That is not the preferred option; it is the fall-back position. As I said earlier, the good thing about a referendum organised by the United Kingdom Government would be that it would not only be decisive but it would be legal and would not be open to challenge.

I now come to the other option, which is the proposal of a Section 30 order. I think that is a good arrangement, a clever arrangement and an arrangement that will enable the Scottish Government to legislate for a legal referendum. That would not be likely to be challenged, but it would have to be on an agreed basis. That is why the question raised in our earlier debate about whether the order would be amendable is important. I think the Minister said that, in debating the order, he would consider whether some opportunity might be taken for amendments to be considered. I think that my noble friend Lord Sewel suggested that we might have a debate on a draft order. We may be crossing bridges before we get to them, but that is a good suggestion that would enable us to table amendments.

In this context, the Secretary of State’s letter of 20 March to my right honourable friend the Shadow Secretary of State, Margaret Curran, confirms, as did the Minister earlier, that the consultation indicated clear support throughout Scotland for this proposal, including from constitutional experts—the Minister described them earlier—and knowledgeable organisations such as the Law Society of Scotland, the Royal Society of Edinburgh and the British Academy. The Scottish Government have now accepted this, but a Section 30 order still has to be agreed with Scottish Ministers. That is where the difficulty might arise and where the negotiations will be important, where, in the words of the noble Lord, Lord Kerr, we will need to have had our porridge oats, or Scott’s Porage Oats. The Minister is negotiating, so that they take a firm line.

[Lord Reid of Cardowan]

As regards what might and might not be the ultimate outcome of such discussions, let us be absolutely clear on one thing. If it is a question of Scotland remaining inside the United Kingdom or leaving it, the Scottish people have the right to decide such a question. However, a wider question about the changed nature of devolution within the union cannot be a question just for the Scottish people or for the Scottish Parliament; it must be a question either for the two Parliaments, or for the people of the United Kingdom. Will he make that clear?

[Lord Foulkes of Cumnock]

I completely agree with my noble friend. I think that needs to be made clear to Ministers. I was going to turn to the issue of one question or two questions in a moment. We need to set targets for our Ministers when they are negotiating and discussing with the Scottish Parliament. In Amendment 89, the noble Earl, Lord Caithness, talks about the referendum being advisory or binding. There has been much discussion about whether any referendums have been advisory or binding. I think some have been advisory but have been accepted as binding. One target that we need to set the Minister is to decide that both Parliaments should agree in advance to accept the result of the referendum and follow it through with the necessary legislation as the will of the Scottish people.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I am not sure that I fully agree with my noble friend on that. The referendums in 1979 and 1997 were both on the basis of the Scottish people deciding.

[Lord Reid of Cardowan]

I was careful to say earlier that anything other than leaving or staying in the union must be agreed either by both Parliaments or by the people of the whole United Kingdom. The two instances which my noble friend mentioned were, of course, agreed by the United Kingdom Parliament before they went to a referendum.

[Lord Foulkes of Cumnock]

I had not appreciated the qualification of being accepted by both Parliaments. If they are accepted by both Parliaments, that will fulfil my requirements and belief.

I have an amendment which suggests a further referendum on devolution—whether we should have the status quo, devo-plus, devo-max or a multi-option referendum. I am not in favour of that now and I shall not press that because that was going to be 35 days after independence. I confess that this amendment has not received universal support; in fact, it has not received any support at all, which is probably why I am not going to press it.

A stronger reason is that we heard a very powerful argument from both Front Benches that the 1997 referendum’s second question gives power to Parliament to decide further devolution. If both Parliaments, as my noble friend Lord Reid has agreed, decide on further devolution, I do not think a referendum is necessary.

Finally, there is the question of further devolution which the noble Lord, Lord Kerr, raised in his interesting intervention about porridge oats and punctuation. I agree—and now it seems the Prime Minister agrees—that further devolution needs to be carefully considered. We have got that in the Statement which the Secretary of State made today. It should be carefully considered; as a number of people have said, the devolution we have at the moment—which is the devolution of the Calman commission, the further extension—has been agreed on an all-party basis, and on the basis of consensus and consultation. That should be the basis of any further extension of devolution.

Both my own party, the Labour Party, and the Liberal Democrats, the Minister’s party, have commissions looking at this. In our debates on Thursday, we had an indication that already there is a degree of a mandate in relation to further fiscal devolution.

There are other issues in relation to the referendum, such as the role of the Electoral Commission, which I strongly support as being responsible for the conduct of the referendum. Another is the franchise, because while the Scottish Government propose to extend it to 16 and 17 year-olds, I believe there should be no unilateral reduction in the voting age just for one referendum. There are a number of other detailed matters which we will come to in the later amendments.

We now have this agreement on the legislative consent Motion. We have substantial agreement that greater tax powers are acceptable, and that borrowing consent, which we are giving to the Scottish Parliament, is welcome, and that specific areas are now being devolved. Let us not make any mistake about it: this implementation of the Calman recommendations is a very substantial increase in the devolved powers of the Scottish Parliament. We should not be hiding that under a bushel. We should be proclaiming it from the rooftops. Many of the advances have come from pressure from Labour MPs and Labour Peers. It is something I am now proud to support fully. I beg to move.

[Lord Wallace of Tankerness]

My Lords, it was thought at one stage that it might be helpful if I indicated the Government’s position on these points. I shall do that if the House thinks it would be helpful and at the end I will respond to points made in the debate as well as to more specific points made by the noble Lord, Lord Foulkes.

I also wish to thank noble Lords for helping to try to deal with these issues in two discrete groups. The first group concerns how to legislate for a referendum; for instance, whether there should there be one question or two on the ballot paper, the nature of a binding and advisory referendum, and whether it should be held across the United Kingdom. Indeed, my noble friend Lord Caithness has indicated that he wishes to discuss implications for the Scotland Bill of Rockall and, a place dear to my heart, Orkney and Shetland. Subsequently we will have a debate on one of the later groups on more practical but nevertheless very important matters relating to the referendum, including the role of the Electoral Commission, eligibility to vote in a referendum, and oversight of the referendum.

I want to endorse what the noble Lord, Lord Foulkes, said, when indicating that he supports the Government’s view of a referendum that is legal, fair and decisive. I think he said that fairness must be fairness for all, and it is a very important point. We will certainly come to debates on the franchise and the role of the Electoral Commission, but I would want to agree that the referendum must be conducted in a way that is deemed fair to all and that both sides are satisfied and can accept the outcome. There would be nothing worse than to have an outcome where one side or the other was crying foul. In all our views, this means adhering to the well-established rules for referendums, so that neither one side nor the other can claim that there has been a false referendum.

As I set out in my Oral Statement to your Lordships’ House on 10 January, the Scottish National Party won a significant victory in May 2011. In that election it campaigned for Scottish independence and its manifesto included a pledge to hold a referendum on independence. But winning an election victory is not sufficient. The SNP did not explain how, in legal terms, it proposed to deliver a referendum either in its manifesto or in the election campaign. Nor indeed did the Scottish Government set out their legal view or their plans for many months. As has been highlighted before in your Lordships’ House, this is not a matter that can be avoided. To legislate for a referendum on independence, the Scottish Parliament must have the power to do so, and it is the Government’s clear view that the Scottish Parliament does not have that power.

That is why on 10 January we published our consultation paper on how to deliver a legal, fair and decisive referendum. As I indicated earlier, officials are reviewing and analysing the responses and the Government will publish a full report on the consultation, but perhaps I may give some early indications. We received almost 3,000 responses. As I have already indicated, they came from members of the public in Scotland and beyond, and there were contributions from businesses, academics, political parties, trade unions and many others that belong to civic Scotland. I believe this will, and does, provide a sound basis for gauging Scottish opinion on the issues.

The Government’s central proposition in the consultation was, as has been said, that the referendum must be legal, fair and decisive. It is important that the responses we received are analysed thoroughly, but I can indicate some of the preliminary results on the key issues. First, on legality, we must turn to the Scotland Act 1998. The Act is clear. The Scottish Parliament cannot legislate on matters reserved to this Parliament, including,

“the Union of the Kingdoms of Scotland and England”.

Any Act of the Scottish Parliament is simply not law if it is outwith the competence of the Scottish Parliament. An Act of the Scottish Parliament is outside legislative competence if it relates to reserved matters. The question of whether a provision relates to a reserved matter is determined by reference to,

“the purpose of the provision, having regard (among other things) to its effect in all the circumstances”.

We are quite clear that the Scottish Government’s purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for this to happen. Both purpose and effect relate directly to the reserved matter of the Union. Your Lordships’ Constitution Committee, in its report published last month, said:

“An authoritative determination of the legal issues analysed in this chapter could be given only by the courts. Having considered the matter in detail, we are of the clear view that the … analysis offered by the UK Government is correct. Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to … authorise a referendum about independence”.

The committee welcomed the Government’s proposal that a Section 30 order be made to devolve power on the Scottish Parliament to legislate for a referendum on Scottish independence.

In our consultation document, we invited views on devolving powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly from Westminster. We have been clear throughout this process that it is the UK Government’s preference to work with the Scottish Government to secure agreement on the way forward. This is not a question about the mandates of Scotland’s two Governments. We believe it is about empowering the people of Scotland to participate in a referendum that is legal, and it is crucial that any referendum is beyond legal challenge. To provide for that legal referendum, we have set out our view that the power to legislate for a referendum should be devolved by the use of a Section 30 order agreed by both Governments and subsequently put to, and agreed by, both Parliaments.

Initial analysis of the responses received demonstrates that a significant majority agreed with that approach. That position was not simply supported by the volume of respondents, but by key academic experts and commentators including Professor Matt Qvortrup from Cranfield University, Professor Adam Tomkins of the University of Glasgow, Alan Trench of the University of Edinburgh, and representatives of organisations such as the Law Society of Scotland, the Electoral Reform Society of Scotland, the Royal Society of Edinburgh and the British Academy.

Noble Lords will also have noted that, soon after we published our consultation, the Scottish Government published their own document on 25 January. In that document the Scottish Government also acknowledged the legal problem and accepted that a Section 30 order was the best way to remove doubts about the competence of the Scottish Parliament. We welcome this endorsement, which the Secretary of State has discussed with the First Minister, and we look forward to continuing that dialogue over the coming weeks. Against that background, and indications that the Scottish Government want to reach agreement on these critical matters, I can confirm that we will not be tabling any government amendments on a referendum in the Scotland Bill.

In addition to ensuring that the referendum is legal, the Government have been clear that it should also be fair and decisive. That will be discussed when we debate the second group of amendments.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I shall speak to my Amendment 88, which is part of this group. It may help save your Lordships a little time. I am grateful to my noble friend for the statement that he has just made. As I see it, the position is quite clear: the Government are not going to use this Bill as a vehicle.

I tabled my amendment on 13 September, six months ago. Since then, quite a lot has happened. I tabled it because I thought we needed to resolve once and for all the question of whether Scotland should remain part of the United Kingdom, and I thought that the First Minister would use his period in office to drive a wedge between Scotland and the United Kingdom. Nothing that I have seen in the past six months has done anything other than to consolidate that view. It is therefore very important that we get this matter settled, that we concentrate on whether Scotland wishes to remain part of the United Kingdom, and that issues of devo-max and the rest are kept to one side while we do that.

I entirely agree with the noble Lord, Lord Reid, who intervened twice while the noble Lord, Lord Foulkes, was introducing his amendment to point out that devo-max means creating a federal parliament and an English parliament. He is absolutely right to say that that would need to be subject to approval by the rest of the United Kingdom.

We are concentrating here on how to get the Scottish question resolved one way or the other. Seeing how the noble Lord, Lord Foulkes, has suddenly started speaking to a script, I suspect that there is probably a degree of agreement between the Front Benches on the way forward on this. I hope there is. The noble Lord, Lord Browne, shakes his head, but the noble Lord, Lord Foulkes, was certainly speaking to a script, although after three pages we returned to normal service. I suspect that the three pages may very well reflect the view of the Opposition, but we will hear from the noble Lord, Lord Browne, in due course.

The point is that there is a consensus in this House that we need to have a referendum; it needs to have one question—

[Lord Foulkes of Cumnock]

I can let the noble Lord, Lord Forsyth, see my script and he will see that it is in my own handwriting and no one else’s.

[Lord Forsyth of Drumlean]

Yes, I just wondered who dictated it. I am sure it is the noble Lord’s own work; it is just that it is such a change of position in such a short time. We have discussed this ad nauseam and it is perfectly clear that there is agreement in this House that there should be one question and that the referendum should be conducted by the Electoral Commission and no one else.

I like the question that is in the amendment moved by the noble Lord, Lord Foulkes, but I am perfectly content for that question to be determined by the Electoral Commission. That is where we may end up. My preference would be for it to be decided by the Government, but I can see how that would create difficulties. The important point is that this whole process needs to be regulated by the Electoral Commission and needs to be conducted under the rules that have been established in statute for the conduct of referenda. I am very happy not to move my amendment and not to spend any more time talking about referenda in the context of this Bill, because this Bill is clearly not going to be used as the vehicle.

My noble and learned friend has been brilliant in his negotiations with Mr Alex Salmond, but I am not absolutely persuaded that Mr Alex Salmond is going to agree to a Section 30 procedure that meets all the criteria. The point that was made by the noble Lord, Lord Williamson, really needs to be taken into account. We do not want any shilly-shallying or giving way on these important points of substance. This is very important.

Mr Salmond does not want to have a referendum on independence because he knows that he will lose, and I am anxious that my noble and learned friend may be optimistic about reaching agreement. However, given his track record, he may well be able to reach agreement: in which case, fine. If he is not able to reach agreement, we will have to have a referendum Bill in the next Session of Parliament that delivers these things. I regret that, because unless there is agreement between the Front Benches to take this through the House reasonably speedily we will have another six or seven months of arguing about process, about the question and about who should run it, whereas I want the debate to be about what happens to Scotland’s young people, the jobless, our businesses, our defence, people’s pensions, and our country as a United Kingdom.

If we are going to go down this track, I very much hope that the negotiations will not be particularly extended. I believe in competition but, honestly, competition between consultation papers is a bit rich. The Scottish Government’s consultation finishes in May. If this is the route that we are going to go down, let us hope that, at a reasonably early stage in the new Session of Parliament, either we will have reached agreement with the Scottish Government on using Section 30 or the Government will have brought forward a Bill that is taken through both Houses speedily and delivers the opportunity for a decision to be made. I would have preferred it if we had used this Bill to achieve that because we could have got on with it, but given the Government’s Statement and the fact that we have to deal with all amendments by next Wednesday, it is perfectly apparent that that is not going to happen. I am content not to press my amendment.

--- Later in debate ---

Listening even more carefully to the noble and learned Lord, it now appears that we will not be using this Bill as a vehicle for legislating for a referendum in Scotland, and I agree with that. This Bill is about devolution, and it should remain about devolution. We should not muddy its waters by using it for another purpose. Apart from that, a Section 30 order is the right way to go because it is an established mechanism for transferring the power to the Scottish Government. It is tried and tested, and it involves a level of buy-in by the Scottish Government that should prevent them complaining in future about what they have agreed to. It may not, but at least it provides a political framework where they can be held to account for the consequences of the agreement and we can avoid all these arguments about imposition. If we have a process that they have to buy into to create this opportunity, which we all now want to see, we can stop all this nonsense talk about diktats from London and imposition by Westminster. They will have to buy into it.

[Lord Foulkes of Cumnock]

I can understand why my noble friend says that using this Bill to discuss or legislate for a referendum might not have seemed appropriate. However, if the amendments had not been put down all those months ago by the noble Lord, Lord Forsyth, and myself, and if the pressure had not been put on the Government, does my noble friend think that we would have had two consultative documents? Does he think that we would have achieved what we have achieved today? Is there not extra advantage in putting down amendments, even though at the end of the day they may have to be withdrawn? Does it not achieve something in the end, and has something not been achieved in relation to this?

[Lord Browne of Ladyton]

I thank my noble friend for his intervention, although I have no idea what the answer is to the question that he asks. We get many amendments that allow us to explore issues that are of less relevance and importance to the people of Scotland, but I certainly welcome amendments that allow us to explore issues that are important. Through their amendments, my noble friend and the noble Lord, Lord Forsyth, have been utterly diligent on this Bill. They deserve a great degree of credit for the amount of work that they have put into preparing amendments, by which they have created opportunities for some very good debates in Committee. They will be a quarry for the future for many good arguments that can be put forward about the positive nature of the United Kingdom.

To go back to my point, the noble and learned Lord says, “Not this Bill”, and I agree. He says that the preferred option is a Section 30 Order in Council, and I agree. The consultation reveals some very good and compelling arguments in some of the responses about why that is the right way to go. I have adopted some of them. The noble Lord, Lord Forsyth, asked the Minister, “What if there is no Section 30? Where does that leave you?”. The noble and learned Lord answered, “If agreement cannot be reached, we need to consider other options”. I understand why that form of words is the most that he can give your Lordships.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble Lord makes an important point, which was reflected in some of the responses to the consultation, not least from SSE. My noble friend Lord Forsyth and the noble Lord, Lord Empey, made the point that we want the debate to move on to the substance of independence, a point also made by my noble friend Lord Caithness when he raised the question of the currency. Those are questions that the Scottish Government ought to be addressing. I entirely agree. It is important that we get the process resolved, and resolved swiftly, but it is equally important that we get on to the substantive debate about the benefits to Scotland from remaining part of the United Kingdom, part of the most successful union of nations, certainly in modern times, and possibly for even longer.

As noble Lords will be aware, my right honourable friend the Secretary of State has raised six questions with the Scottish Government to which we still await answers. Many others, including Members of your Lordships’ House, have raised other questions. I am confident that when we get to the substance of the referendum debate, we can expose the weaknesses in the independence argument and do so on a positive footing by showing what is really positive about Scotland remaining part of the United Kingdom. On that basis, I invite the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, we have an excellent debate. We have had a very helpful reply from the Minister. We have another debate looming. I therefore immediately beg leave to withdraw my amendment.

Amendment 87 withdrawn.

--- Later in debate ---

Tabled by

[Lord Foulkes of Cumnock]

90A: Before Clause 10, insert the following new Clause—
“Taxes and excise duties
(1) In Part 2 of Schedule 5 to the 1998 Act, in section A1 (fiscal, economic and monetary policy) omit “taxes and excise duties”.
(2) The Scottish Government shall pay funds to the Government to cover a proportion of the costs incurred as a result of policies made under reserved matters.
(3) This section shall only come into effect if it is approved by a majority of people voting in a referendum on the provisions held in accordance with Schedule (Referendums under this Act).”

[Lord Foulkes of Cumnock]

My Lords, in view of the excellent progress we are making not only in these proceedings but behind the scenes, and also the work that has been done by the Minister, I shall not move this amendment.

Amendment 90A not moved.

Moved by

[Lord Foulkes of Cumnock]

91: Before Clause 10, insert the following new Clause—
“Referendum about Scottish independence
(1) Her Majesty may by Order in Council, on the advice of the Prime Minister, cause a referendum to be held throughout Scotland about whether Scotland should become independent of the rest of the United Kingdom.
(2) Such a referendum can only be held within 24 months of the day on which this Act is passed.
(3) The question that is to appear on the ballot paper is—
Do you want Scotland to remain part of the United Kingdom?(4) For further provision about a referendum held by virtue of subsection (1), Schedule (Referendums under this Act) applies.
(5) An Order in Council under this section may not be made unless a draft of the statutory instrument containing the Order has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Foulkes of Cumnock]

My Lords, we have had a good debate on the whole issue of a referendum. However, there are one or two important amendments in this grouping that I think we should deal with very briefly.

The first is in relation to the Electoral Commission, which we dealt with earlier on. The noble Lord, Lord Steel, who explained to me that he was not going to be able to be here, has raised this issue as well. It is very important that the Electoral Commission determines this, and not the body that has been set up by the Scottish Government. The Electoral Commission has the experience, it has the authority and the respect. Questions in relation to the actual wording of the question on the ballot paper, the amount of finance and the control of financial expenditure and the conduct of the referendum should be left to the Electoral Commission.

The second point relates to the franchise. As I said in the earlier debate, it would be entirely wrong to change the franchise for this one referendum, just because the First Minister of Scotland thinks it would help him to get the right result. So we should stick to the arrangement that it is people over the age of 18 who are able to vote.

There is an interesting amendment by my noble friend Lady Taylor of Bolton which, if I understand fully, suggests that Scots who are now resident in England but who were born in Scotland and still have an interest should also have the vote. She is one of those concerned and one of the more famous Scots residing in England, a supporter of Motherwell Football club no less. There is a very credible argument for that point of view. I am not sure I agree with it exactly, but we certainly deserve to hear it.

There is also an amendment in relation to Scottish nationality in the name of the noble Lord, Lord Selsdon, who does not appear to be in this place at moment. If he were, I am sure he would make a very entertaining and interesting contribution to that amendment. I want to raise the West Lothian question with the Minister. The noble Lord, Lord Selsdon, has arrived so we look forward to hearing him in relation to his amendment. On the West Lothian question, a committee has been set up by the Government to look at whether MPs from Scotland, Wales and Northern Ireland should vote on purely English matters in the House of Commons. I contacted the committee to seek to give evidence and I was told that it is not taking evidence. That seems very strange, given that it is an integral part of the whole constitutional debate that is currently taking place and given that it has some knock-on relevance to the point that we are dealing with. Perhaps the Minister could persuade the committee that it would be wise to consider evidence.

[Lord Watson of Invergowrie]

Before my noble friend moves his amendment, I wonder whether he would comment on the very interesting proposal made by the noble Lord, Lord McConnell, earlier this evening when he suggested that two questions be posed, so avoiding a yes or no answer on the ballot paper. I recall that in the 1997 referendum the words were “I agree that there should be a Scottish Parliament” or “I do not agree that there should be a Scottish Parliament”, and that there was the same in respect of the tax-varying powers. Would my noble friend like to comment on that as a possible wording, which we all accept is very important, as it would avoid a straight yes or no answer to a question?

[Lord Foulkes of Cumnock]

My noble friend is a former Member of the Scottish Parliament, as I am, and I thought it was very interesting that the suggestion came from the noble Lord, Lord McConnell, himself a former First Minister of Scotland, as he has a great deal of knowledge about this. I think that is a very interesting suggestion, which I hope the Minister will feed into the discussions that are taking place. If the Scottish Parliament or Scottish Executive suggests one question and we are sticking to another one, perhaps there could be agreement on two counterbalancing questions—questions that have different outcomes—for which people could vote positively. In other words, no one would vote negatively; everyone would vote positively for their option. I think that is a very good suggestion.

The fact that these things have been suggested shows, as I hope my noble friend agrees, the value of these debates, the value of Committee stage and the value of the House of Lords. Earlier we were talking about tweets, and I have been getting tweets asking what right I have, as someone who is not elected, to make any comments on this. I can understand the politer ones that raise that question, notwithstanding the fact that I was an elected representative for many years. One of the answers is that debates in this place, as we have had today and previously, can come up with very useful suggestions which can move things forward in a very positive way. I beg to move.

Amendment 92 had been withdrawn from the Marshalled List.

--- Later in debate ---

Amendment 93 (to Amendment 91) withdrawn.

[Lord Foulkes of Cumnock]

My Lords, we have had a fascinating debate ranging from the vicissitudes of the Lothian list elections, which I know only too well, to the lairs—both of them—of the noble Lord, Lord Selsdon. The importance that I attach to these debates is indicated by the fact that I have been here all evening rather than at St Mirren Park where I would have seen Hearts beat St Mirren by two goals to nil. Fortunately, the semi-final when, as my noble friend Lord Browne will know, Hearts will face Celtic is on a Sunday, so I will not have the problem that I have had tonight and I will be able to be there. Having said that, I beg leave to withdraw the amendment.

Amendment 91 withdrawn.

Devolution: Wales

Lord Foulkes of Cumnock Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Wallace of Tankerness]

I hear the noble Lord and he may wish to make that point in the debate later.

[Lord Foulkes of Cumnock]

As regards the anomalies in relation to Welsh devolution and some of the problems arising from Scottish devolution, which we will be discussing at length later today, as well as the West Lothian question, on which the Government have set up a commission, would those matters not all be better dealt with if we were to look at the English dimension and devolution within or to England?

[Lord Wallace of Tankerness]

My Lords, I think that there has been some history of that, not least pioneered by the Government of whom the noble Lord was a member. I do not seem to remember that there was huge enthusiasm for it in the north-east of England, but it is still a very pertinent point and one which I am sure will be raised again in debates on this issue in the future.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I support the amendments in the name of the noble Lord, Lord Browne of Ladyton. This may appear to be simply a matter of terminology, but a very important point is being made and it is not one just of consistency. The use of the phrase “Scottish Crown Estate Commissioner” in the Bill implies that there is a Scottish Crown. It is not a Scottish Crown estate; it is the Crown Estate in Scotland. The amendment in the name of the noble Lord, Lord Browne, makes that clear by suggesting that the commissioner should be referred to as the “Crown Estate Commissioner for Scotland”.

That is deeply worrying and I do not know what is going on in the Scotland Office. This sloppy attention to language is creeping in. It has a sort of nationalist feel about it. I should check with the clerk that it is within the rules of order to refer to the Crown here, but it might be appropriate to point out that the English Crown was taken over by the Scottish Crown in 1603 in a reverse takeover.

On an issue related to this use of language, the First Minister the other day referred to how after independence there would still be a United Kingdom, which is absolute nonsense. The United Kingdom was created in 1707 when the kingdom of Scotland and the kingdom of England—

[Lord Foulkes of Cumnock]

Does the noble Lord mean 1606, not 1707?

[Lord Forsyth of Drumlean]

It is nice to have something on which to disagree with the noble Lord. In 1603, we had the union of the Crowns. In 1707, we had the union of the Parliaments. The kingdom of Scotland and the kingdom of England ceased to exist in 1707 because the United Kingdom was created. Therefore, it is illiterate as well as misleading to suggest that there would still be a United Kingdom. If Scotland were to leave the United Kingdom, the United Kingdom would cease to exist. Whether or not the monarch went on to become the head of Scotland as head of state, the relationship would be similar to that enjoyed by Canada and Australia, but it would certainly not mean that the United Kingdom continues. For many people this may seem a kind of historical fact, but it is very important that we understand this, particularly when we have people in high office who seem determined to mislead people. I repeat that if Scotland leaves the United Kingdom, there will be no United Kingdom. I do not know what a kingdom represented by England, Ireland and Wales would be called.

To return to the subject of the amendment, the use of the terminology “Scottish Crown Estate Commissioner” is wholly wrong, and I hope that my noble friend will feel able to accept the amendment from the noble Lord, Lord Browne, which seems entirely sensible and very necessary.

--- Later in debate ---

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

My Lords, I thank all noble Lords who have taken part in this debate. It has been an interesting and useful curtain-raiser to our debates today and important points have been made. I do not intend to go down the history-lesson route but I will deal with the point made by my noble friend Lord Forsyth. It is an opportunity to explain why different terminology and a different process of appointment have been used. Quite clearly, there is genuine need for clarification of that matter and I hope I will be able to do that.

I will first take the issue of the qualification of the person who will be appointed as the Scottish Crown Estate commissioner. I thank my noble friend Lord Selkirk for his amendment. When I was Member of Parliament for Orkney and Shetland, I had many dealings with the Crown Estate on issues of udal law, not least as to whether certain marina berths should have charges levied on them by the Crown Estate, or whether slipways passed over land that belonged to the Crown Estate or to the udal landowner. Some I won, some I did not. However, it indicates the breadth of the work the Crown Estate undertakes, including fish farming and marinas. Inshore and offshore renewable developments are, of course, becoming increasingly important within the area covered by the Crown Estate.

The position of the Crown Estate commissioner requires experience of operating at a senior board level as well as knowledge of one or more of the business sectors and activities in which the Crown Estate operates. These points were very forcibly made by my noble friend Lord Sanderson of Bowden and by the noble Lord, Lord Curry, who obviously speaks from his own experience of having been a Crown Estate commissioner.

The fact that my noble friend’s amendment relates specifically to land management and law would put an unnecessary restriction on who could be appointed. Of course, as we have already heard in this debate, there are areas of the Crown Estate’s business other than property or law with which it may well be an advantage for an appointee to have familiarity. The Bill provides for the person who should be appointed as a Scottish Crown Estate commissioner to have knowledge of Scotland and conditions there, but that person might in addition have a much broader range of experience and expertise that he or she can bring to the board. There might also already be commissioners on the board with expertise and experience in the areas specified by the amendment.

On the second leg of my noble friend’s amendment—the experience of the functions of the Crown Estate—I think it is fair to say, and I am sure the noble Lord, Lord Curry, will correct me if I am wrong, that few if any Crown Estate commissioners when appointed had direct experience of the functions of the Crown Estate under the 1961 Act. The right person for the job will need to have knowledge of Scotland and other relevant skills and experience. I hope the Committee will agree with me that it is important to achieve a balance of appropriate expertise on the Crown Estate board without placing undue restrictions or stipulations that could well rule out people who might otherwise be suitable candidates. I certainly think that the spirit of my noble friend’s amendment is in seeking to ensure that those bits of experience were brought to bear, but I hope he recognises that it will be impossible through the appointments process to have regard to other fields of experience as well if we put on restrictions.

[Lord Foulkes of Cumnock]

The Minister mentioned the appointments process, but is there a clear understanding or requirement that the process must be carried out according to the principles of public appointments throughout the United Kingdom? I know that there are growing fears in Scotland, because of the dominance of the First Minister and the way in which he seeks to impose his views on institutions and organisations, that it is vital that there is a properly constituted appointments process for all public appointments.

[Lord Wallace of Tankerness]

I certainly believe that there should be transparency in the appointments process. Of course, we will come on to the actual mode of appointment of the Scottish Crown Estate commissioner, which would involve consultation with Scottish Ministers. It is fair to explain why, in terms of nomenclature and mode of appointment, we have different arrangements for the Crown Estate commissioner as opposed to BBC Trust members, for example.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for that explanation. Indeed, the commissioners are appointed under the Office for the Commissioner for Public Appointments code. I hope that that gives the assurance sought by the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth—but maybe not.

[Lord Foulkes of Cumnock]

Can we have assurances that, after the Bill is enacted, they will continue to be appointed under the Nolan code? A lot of us fear—and this applies to the Crown Estate commissioner and even more to the BBC Trust representative—that if there is any undue political interference in that appointment, a lot of people in Scotland would have grave concern.

[Lord Wallace of Tankerness]

My Lords, there is no intention to change the manner of appointments under the Office of Public Appointments code. However, I will come on to talk about the consultation process that is due to take place, which by its very nature, as it is between the Chancellor of the Exchequer and the Scottish Ministers, will have a political dimension to it. One of the purposes of appointments under the Office of Public Appointments code is to ensure that there is indeed transparency and open competition and to achieve, as well, a balance of skills and backgrounds and avoid any potential conflicts of interest.

The amendment would change “Scottish Crown Estate Commissioner” to,

“Crown Estate Commissioner for Scotland”.

Perhaps I may explain to my noble friend that “Scottish” is not intended to qualify “Crown”, or indeed to qualify the two words “Crown Estate”, but to qualify the three words “Crown Estate Commissioner”. There are Crown Estate commissioners and therefore “Scottish” is the adjective to be applied to them. Unless we put commas in, I am not quite sure how we could make it clearer than that.

--- Later in debate ---

Moved by

[Lord Foulkes of Cumnock]

51: Clause 27, page 19, line 43, at end insert—
“( ) Before commencing discussions with representatives of foreign governments or inter-governmental organisations, Scottish Ministers are required to obtain consent to the discussions from a Minister of the Crown.”

[Lord Foulkes of Cumnock]

My Lords, we suddenly seemed to be making rapid progress there, so we should now take a little time to contemplate an interesting issue before we get on to the important matters of finance that I am glad to see the noble Lord, Lord Sassoon, is here to deal with. Perhaps I may give him advance notice that under one particular item, I might feel it necessary to raise the issue of whether or not the problems that Rangers Football Club currently faces would have been affected in any way if these changes to the law in Scotland had been implemented by now. That is a matter for later in our discussions, but I thought it might be helpful if I intimated that to him now.

Some of my more fainthearted friends, whom I will not name, advised me to withdraw the amendment; they thought it went a little too far. I must confess that it is not the most felicitous of amendments that I have drafted during the course of this Committee stage. My friends and colleagues, anxious for my well-being, warned me against a possible cybernat offensive if I moved the amendment. Perhaps I may tell them that that offensive has already taken place just by the very fact of tabling the amendment. I must say that if the provisions for ageism had already been brought in by the Government opposite—and they have not yet been implemented—some of the remarks could have been actionable. That is not to mention some of the other things that were said.

Perhaps I may therefore take this opportunity to remind people outwith Parliament of the purpose of the Committee stage of a Bill, which, as I understand it, is for the tabling of amendments—not necessarily to move them and vote on them—to provide debates around particular issues. We have had probing amendments, amendments put forward for debate and withdrawn, and amendments that have not been moved. That is the right thing that should happen.

I want to make three preliminary points on this amendment. I have tabled other amendments, which I intend to withdraw, putting “Devolved” in front of “Government” in every part of the Bill—the “Devolved Government”. The reason I tabled those amendments was to have an opportunity to debate the difference between devolution and independence—there is a complete difference. Some people try to conflate them—the nationalists, Salmond in particular, try to conflate it for their political purposes—but there is a major, substantive difference, a complete difference. It does not matter how much devolution we have, we still remain part of the United Kingdom. Sovereignty is still with the United Kingdom. Once Scotland makes the crucial decision to become independent, it is irrevocable. We would no longer be part of the United Kingdom. That is a major change, and we need to keep reminding people beyond this Chamber of that.

That is my first preliminary point. The second is that we need to get our courage. I am very glad to have seen the recent launch, reported in the Scotsman today, of the rainbow coalition between the different parties in Scotland. It is about time that the unionists, the federalists and the devolutionists got together. Incidentally, I should like to hear more from the federalists—traditionally, the Liberal Democrats—about the federal solution, which, as I have said before, is, in my view, the long-term stable solution for the constitution of the United Kingdom.

I am slightly fed up with the accusation from some of the nationalists that it is somehow wrong if we join forces with the Liberal Democrats and the Conservatives in a joint campaign—the phrase “the toxic Tories” has been used deliberately. There is a smear campaign to try to divide us; that is the purpose. I disagree with the Tories on 99 per cent of what they do, but even a Tory is not wrong always. They can be right from time to time, and when they are right, we should embrace them, work with them and encompass them in our activity.

[Lord Forsyth of Drumlean]

My Lords, is not new Labour a monument to that principle?

[Lord Foulkes of Cumnock]

I did not hear that; my noble friend Lord Maxton was talking.

[Lord Forsyth of Drumlean]

I said: is not new Labour a monument to that principle?

[Lord Foulkes of Cumnock]

It is a monument? That is a good question for a start. That has implications in itself. As my former Secretary of State will recall, I was always asked if I was new Labour or old Labour and I used to say, “slightly shop-soiled Labour”.

Salmond and the nationalists relied on Annabel Goldie and her Tory group for support for their budget every year for the four years when I was in the Scottish Parliament. They did not see it as wrong to have that kind of coalition. Let us work together where we agree with each other and let us not to be ashamed of it.

--- Later in debate ---

[Lord Sewel]

Ten minutes!

[Lord Foulkes of Cumnock]

They were my preliminary remarks.

[Lord Lyell]

Before the noble Lord moves on, would he suggest that the First Minister might take over the Scottish rugby team as coach?

[Lord Foulkes of Cumnock]

Well, he tried to get on television to talk about rugby, purporting to be an expert on it, and blamed the BBC for withdrawing his invitation. In fact, the BBC did not invite him; he invited himself and then the BBC said, “We don’t have a place for you, we’re afraid, because we’ve got people who actually know about rugby to talk about it”. It would be better to have someone who knows about rugby to manage the Scotland rugby team, but I have no doubt that the First Minister would think that he could do it.

I return to the amendment. When I was a Minister in the Department for International Development, I travelled the world, inevitably. It was part of my responsibility to go to the poorer countries of the world to see the problems and what we could do about them.

[Lord Martin of Springburn]

Just for the sake of facts, I should point out that my noble friend travelled the world before he became a Minister. [Laughter.]

[Lord Maxton]

That is a bit unfair.

[Lord Foulkes of Cumnock]

I thought that the noble Lord, Lord Martin, was a friend of mine—I shall see him afterwards. But he is absolutely right. That was because I was an opposition spokesman on foreign affairs, defence and international development for 13 years.

It is important for the purpose of the argument and for this amendment to deal with when I was a Minister representing Her Majesty's Government. Even then, my private secretary had to submit proposals for travel. It was co-ordinated by the Foreign Office and there was some logic in that. But for three Ministers from different departments suddenly to turn up in the same capital at the same time, with each not knowing that the other would be there, could cause chaos and make us look inefficient and stupid. There needs to be some co-ordination; it is a practical matter.

Of course, the First Minister thinks that he is too grand. He thinks that he can do whatever he likes because he wants to pretend that Scotland is effectively independent at the moment and, therefore, there is no accountability to the United Kingdom Government for anything. At the very least, he should consult the Foreign Office before he and other Ministers go overseas to make sure that there is not a clash.

[Lord Maclennan of Rogart]

I am grateful to my “noble friend” for giving way. Does he think that if his amendment had been in place it might have beneficially affected the understanding of the al-Megrahi case?

[Lord Foulkes of Cumnock]

That is a very interesting point. I had not thought about it. It needs some time to be thought about. Perhaps, by the time we get to the end of this debate, my former honourable friend could answer his own question, because he is a barrister and has more understanding and knowledge of these matters than me.

At the very least, I accept the suggestion of my noble friend Lord Browne—I shall name him now—that perhaps my amendment has gone a little too far by proposing that Scottish Ministers should get the approval of the UK Government, but at least they should consult them. At least, the Foreign Office should know when Scottish Ministers go overseas and give them help. After all, I found that the Foreign Office could give even Ministers in the Department for International Development advice, guidance and help in relation to our travel overseas.

I worry about the pretence of independence. It was the noble Lord, Lord Steel of Aikwood, who said that Scotland is in danger of sleepwalking into separation and he is absolutely right. We in this House get attacked as old fogeys—all this ageism—and as being non-elected. It does not matter that, for 40 years, I was an elected member either as a councillor, an MP or an MSP—they have forgotten all about that—but now, in here, we have no right, according to some of the cybernats, to talk about it. Perhaps we do not have a right in that sense, but we have a responsibility to warn people about sleepwalking into separation. The pretence that there is no difference between devolution and independence, that we are effectively already there and just have to take that little further step, is not helpful.

I urge us all in this argument—I have used just one example—to be bold. We should not be defensive about this union. This has been the most successful political and economic union anywhere in the world and we should be proud of it.

[Lady Saltoun of Abernethy]

My Lords, the amendment of noble Lord, Lord Foulkes, says,

“obtain consent to the discussions from a Minister of the Crown”.

Should he not be specific about which Minister? Would it not be better to say the Secretary of State for Foreign Affairs?

[Lord Foulkes of Cumnock]

The noble Lady, Lady Saltoun of Abernethy, is absolutely right. The amendment was written rather hastily. It could benefit from that redrafting and it could benefit from the redrafting that my noble friend Lord Browne suggested to me privately—it is not private anymore, I know. If we were to discuss it further on Report and I was to table it again, it would certainly incorporate changes of that kind.

[Lord Maxton]

My Lords, perhaps I may marginally disagree with my noble friend’s answer to the noble Lady. There may very well be different Ministers for different occasions. If, for instance, we were dealing with fishing and the Scottish Minister wanted to travel as part of a delegation or whatever, it might be different. It would not necessarily be the Foreign Office he would be dealing with; it might be the Minister for Agriculture and Fisheries. Therefore, my noble friend may very well be right in proposing the words “Minister of the Crown”, because it could depend on which function was being undertaken.

--- Later in debate ---

[Lord Wallace of Tankerness]

As I indicated, the request was for a statutory right to attend. In a hypothetical situation, even if they were to be the UK Minister, they would still have to articulate what had been agreed at a quadrilateral meeting as the United Kingdom line. It is important that we recognise that for the most part this process works and has worked well. It is sometimes not the perception that one gets, but a lot of hard work and effort is put into it.

It is also the case that, when Scottish Ministers hold meetings overseas, the United Kingdom’s diplomatic missions overseas offer them the same level of support as they would to United Kingdom Government Ministers and delegations. I certainly can vouch for that. Indeed, that was my understanding shortly after I took office as the Deputy First Minister in the Scottish Executive in 1999. The then First Minister, the late Donald Dewar, indicated to me that the then Foreign Secretary, the late Robin Cook, had made it very clear that he wished Scottish Ministers visiting foreign countries to be accorded the full facilities. Certainly, it was always my experience that the help was very considerable.

It is also important to remember that, when representing devolved issues, the devolved Administrations can play a valuable role in promoting commerce, industry and culture. When Scottish Development International, a part of the Scottish Administration, arranges visits with a ministerial involvement, it works to try to bring jobs, employment and investment to Scotland and the United Kingdom, something which would be beneficial to the United Kingdom as a whole.

The noble Lord, Lord Morgan, and the noble and learned Lord, Lord Boyd, referred to the Länder. Certainly, one of the strengths of devolution is that, whereas perhaps in the past the United Kingdom Government could not readily relate to or have engagement with Catalonia or Saxony, that is a level of engagement that Welsh Ministers, Scottish Ministers and Northern Ireland Ministers are able to have, which benefits the United Kingdom as a whole.

I fear that this amendment would introduce a statutory requirement which—I have already indicated that I share the analysis of the noble and learned Lord, Lord Boyd—would not work. As I have also indicated, there is a memorandum of understanding, or concordat, in place to ensure that any engagement with Scottish Ministers is conducted in a constructive way. I hope that that will reassure Members of your Lordships’ House. The noble Lord, Lord Foulkes, has facilitated an opportunity to discuss these issues and I hope that he will follow through on what he indicated and will withdraw his amendment in the light of these assurances. This has been a useful debate.

[Lord Foulkes of Cumnock]

My Lords, I am very grateful to the Minister for a helpful reply. As he said, it has been a good debate, notwithstanding the manifest flaw in my drafting of the amendment, for which I take full responsibility. Now that the Minister has drawn our attention, or reminded those of us who have seen it and been involved with it previously, to the concordat on international relations, it might be useful to draw it again to the attention of the Scottish Government in the gentle, kindly way in which he is used to doing.

Perhaps I may say to my noble and learned friend Lord Boyd that even people of my age—even people at the age of my noble friend Lord Maxton and upwards—can come up with ideas occasionally. He was worried about sanctions. Let me underline that I am not suggesting this but, for example, if any expenditure incurred by a devolved Administration were ultra vires—in other words, they were doing things for which they had no responsibility whatever—sanctions could be available.

I should like to say how much I appreciated the intervention of my noble friend—perhaps I may call him that—Lord Wigley. Perhaps I can put it this way: we are not used to quite such sensible nationalists in our parts. I thought that his contribution was very diplomatic, sensible and helpful to the debate.

Now we come to the noble Lord, Lord Kerr of Kinlochard, who I suspect, from what I know of him and from his contribution, is not quite used to the hurly-burly of Scottish politics. He will know—if he does not, I will tell him—that all of us here involved in the hurly-burly of Scottish politics are willing to make our arguments in any ring that is made available. The noble Lord, Lord Forsyth, suggested one the other week. The noble Lord, Lord Steel, and I have discussed it.

[Lord Steel of Aikwood]

The noble Lord is underestimating the noble Lord, Lord Kerr. When he was ambassador in America and I was on a visit to Washington, he invited me to stay. He added to his invitation, “You’ll have had your tea”.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I knew that he was not from Edinburgh but I did not realise that that stretched to all parts of Scotland. I know what a distinguished diplomatic career the noble Lord, Lord Kerr, has had but, with due respect, although there are not any Scottish nationalists here—there is a Welsh nationalist—as my noble friend Lord Maxton said, the invitation has been made to them. Some people within the SNP, notably Mr Peter Wishart MP, would like them to accept. I hope that they will and I urge them to accept the offer to have SNP Peers. Just because they have not accepted, that should not gag this House from debating this matter. We are part of the British constitution and the legislation of this country. It would be wrong to inhibit us because they do not take up the offer.

I thought that the noble Lord, Lord Forsyth, made a good point about the role of the Civil Service in encouraging the SNP in some of their policies in relation to the break-up of Britain. I urge him to take a look at my Amendment 73, because it will give him another opportunity to debate this issue in more detail, particularly some of the astonishing actions of Sir Peter Housden.

I have the greatest respect for my noble friend Lord Morgan, who is a most distinguished Labour historian. I accept his admonition to be careful in this. I would also ask him to have a wee look at what some of the more extreme nationalists are saying. To use the old phrase, some of my best friends are nationalists. I even had some at my famous birthday party, which my noble friend Lord Browne revealed in a previous debate, and I get on with them very well. But we should look at some of the outpourings of the more extreme nationalists. They talk about “English colonialism” as if Scotland has been colonised by England. They liken Scotland to India or some African states and say, “We must throw off the yoke”, when all of us know that many of the colonialists were in fact Scots, not English.

[Lord Morgan]

I am sorry to interrupt the entertaining remarks of my noble friend. I am glad that he made the point that we do not have that kind of bitter Anglophobia, but there is a danger of throwing out the nationalism of the SNP with the national sentiment of Keir Hardie and the founders of our party. We are the pluralist party, and that is very important.

[Lord Foulkes of Cumnock]

I accept that. My title, as my noble friend Lord Morgan knows, is “of Cumnock”. Keir Hardie lived there and is buried there. That is why I chose it as my title. One of his planks was home rule. There are some others that I do not agree with quite as much, but with home rule I certainly do.

[Lord Morgan]

Temperance.

[Lord Foulkes of Cumnock]

Indeed. Temperance is one other. I accept what my noble friend said. I shall move on because the noble Lord, Lord Forsyth, will raise important matters for discussion in relation to finance that we want to participate in.

The noble Lord, Lord Maclennan, raised a very interesting question with regard to Al Megrahi. My noble and learned friend Lord Boyd knows much more about it than any of us here and I do not want to go into the detail. Like the noble Lord, Lord Forsyth, I did not like seeing the saltires waved when Megrahi arrived at the airport in Tripoli. I thought that the way in which the Justice Minister in Scotland dealt with it was entirely wrong. However, to suggest, as some people have, that it was Tony Blair who told Alex Salmond and Kenny MacAskill to release Al Megrahi is just manifest nonsense. Even if he had, which he did not, can you imagine them doing his bidding on this? However, I accept the point made by the noble Lord, Lord Maclennan. It is important in relation to co-ordination between the various parts of the United Kingdom.

I want to say to my friend the noble Lord, Lord Martin, that I forgive him for his disarming intervention, which I really enjoyed. He and I have been good friends for a long time. We were talking about membership of NATO in relation to policy differences. There is also the question of the deployment of Trident. I do not know if I am giving away a secret when I say that the Joint Committee on the National Security Strategy will shortly be publishing a report which might be of interest to noble Lords. I also thought that his suggestion in relation to Canada might have some advantages. We could look at precedents with regard to protocols between provinces and federal Governments as we move towards a more quasi-federal or federal solution here in the United Kingdom.

Last and certainly not least I turn to my noble friend Lady Liddell, the Secretary of State emeritus, who as always made a most helpful contribution. She reminded us that the Malawi co-operation was in fact agreed with the Department for International Development. Interestingly, I was one of the Ministers in DfID when it was agreed. When the devolved Assemblies and Parliaments work in areas that are complementary to the work of the United Kingdom, we help each other and it is really enriching. I can see the Whip making an interesting face at me, so finally I must say that I shall withdraw the amendment.

Amendment 51 withdrawn.

--- Later in debate ---

[Lord Kerr of Kinlochard]

That is a very fair challenge and I have no complete answer. In respect of taxation, I would argue that devo-max should be precisely what the noble Lord, Lord Sewel, does not want: that the Edinburgh Parliament should be entitled to decide on the forms of taxation. There would need to be the macroeconomic control, which he and I would need to discuss, but the forms of taxation within a given tax take—or rather within a given deficit control, because that is where the control would be—seems to be something which should be devolved in principle. I have made my point and I do not see the point of principle here. I would argue that the difficulty with devo-max is: who is going to specify it? I cannot see Mr Salmond's interest in specifying devo-max, because he wants independence—

[Lord Foulkes of Cumnock]

I wonder whether, when the dialogue is complete, other people might answer your question.

[Lord Kerr of Kinlochard]

Perhaps I should try to finish my remarks.

[Lord Kerr of Kinlochard]

I entirely agree with the noble Lord. I suppose that my motive, as one who believes in the union and does not wish for Scottish independence, is that it seems that the chances of a vote for Scottish independence would be much reduced if the credibility of the devo-max option had been enhanced by its prior specification. I cannot see who is going to do that and I am rather sorry that we seem to be going to miss the opportunity in this Bill to do it, subject to a sunset clause.

[Lord Foulkes of Cumnock]

Perhaps I can say a few words on this amendment, as one of the people whom the noble Lord, Lord Kerr, describes as being “up there”. I am living in Edinburgh, I am a resident, and I will be voting in whatever referendum we have. I am looking forward to it. I do not think of it as “up there”; it is where I live and what I am part of. This is the amendment on which the noble Lord, Lord Forsyth, and I are going to disagree—at last—because I agree with the noble Lord, Lord Steel. We need full fiscal responsibility in Scotland, and we need to move towards that. Some people call it full fiscal autonomy; I call it full fiscal responsibility.

Is it devo-max? As other people have said, I do not know what Salmond means by devo-max. If he means other functions such as welfare or pensions being transferred to Scotland, I am totally against that. It would be catastrophic and cause tremendous problems in breaking up the system that has existed for so long in the United Kingdom. However, full fiscal responsibility is different. Having been in the Scottish Parliament, I know that at the moment it has responsibility for spending the money but not for raising the money. That means that you are irresponsible, and that at any time when you do not have any money you blame Westminster and say that the Barnett formula is not giving you enough. This is the problem that the noble Lord, Lord Kerr, referred to: how do you get to full fiscal responsibility?

I agree with the noble Lord, Lord Steel, and we might both get vilified for this, that David Cameron was right. He was right to say that once Scotland rejects separation, and we must reject it, the door will be open for discussions. There will be a dialogue between Westminster and Holyrood about the new form of devolution. The Secretary of State for Scotland is right that we need that yes/no vote as quickly as possible so we can reject separation and move on to discussing what kind of devolution we want. We could have a referendum with devolution options, but it would be far better if the federalist, unionist and devolutionary parties were to work out an agreed formula for the new enhanced devolution and full fiscal responsibility through a convention—

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord for giving way. I am delighted to be able to disagree with him. Could he table an amendment on Report that includes the elements that he thinks would be added after the referendum that would provide more devo-max devolution? I cannot think of anything, and he has already reserved his position on welfare. What would it contain? This is already in the Bill.

[Lord Foulkes of Cumnock]

When we get to the Minister’s reply, I think we will find that it is not already in the Bill in the form that I would like. We need to work out exactly how much is needed to fund the planned expenditure of the Scottish Parliament and to look at ways in which that can be funded through taxes raised by the Scottish Parliament. Some people in Scotland, MSPs and others, including Peter Duncan of the Conservative Party, have come out with a scheme that they call devo-plus. I do not agree with it fully but it deserves looking at. It is one of a number of options that should be looked at for funding Scottish expenditure with income from within Scotland.

[Lord Sewel]

Way back in the mists of time, I used to construct a series of social surveys. One of them was a series of questions on the powers of local government. We asked people two sets of questions: the first on which powers were at which tier of local government; and the second on whether local government should have more powers. The initial answer to the latter question was always yes. Then we asked what powers they wanted to see local government have, and about 90 per cent of them were powers that local government already had. That is the problem with the “more powers” argument: it assumes that people are fully aware of the powers that the Parliament already has. I simply do not think that that is the case.

[Lord Foulkes of Cumnock]

I wish I had not given way; that intervention was not all that helpful to my argument. If the noble Lord, Lord Steel, David Cameron and I can agree on a way forward, there must be some hope that this rainbow coalition will find out what is best for Scotland and for Britain, and will avoid the dangers of separation and of breaking up the United Kingdom. That is the way forward. I have spoken for quite long enough now.

[Lord Lang of Monkton]

My Lords, I had not intended to take part in this debate because I have not had the opportunity to do the groundwork in order to understand what my noble friend Lord Forsyth’s amendments are all about. The House is greatly in his debt for bringing to our attention the most extraordinary proposal contained in the Bill. Listening to the noble Lord, Lord Steel, I got the impression that he was arguing that we should support the Bill because we know that it is a bad Bill and that the financial provisions will not be adequate for Scottish needs. I am happy to let him intervene and correct that if I am wrong, but if he does so I know that several other people have now argued almost exactly the same point. Personally, I believe that if a Bill is bad you should not pass it, which is why in my Second Reading speech I called for it to be withdrawn. To pass a Bill because you know it is bad seems to be fundamentally wrong.

We know that the Bill will not meet the needs of the Scottish finances because in order to do so it would have to ensure that as the Barnett formula was withdrawn over time, Scottish incomes rose at the same level at least as UK public expenditure has done over the years. Research done by a couple of academics, Professor Hughes Hallett and Professor Scott, discovered that in the eight years to 2008 there was a differential between those two measurements of 0.21 per cent per annum. Over a period of time, Scottish incomes were not rising as fast as UK revenue.

There are countless arguments which could explain why the Bill cannot work and that the finances provided by this 10 per cent tax discretion will be inadequate, but that alone seemed to be a telling one. I noticed that the answer given by the Treasury in previous discussions in another place—I would be grateful if my noble friend Lord Sassoon addressed this matter in his wind-up—was that that had been true over the past eight years but would not be true over the next five years because public expenditure has been heavily reined in. I suspect that incomes in Scotland are also being pretty heavily reined in, particularly because there is a higher preponderance of public servants whose numbers are likely to be reduced and whose incomes are being controlled, and partly because the Scottish economy is in a very much poorer state than the rest of the United Kingdom’s.

One could dilate on a whole load of other reasons why the finances will not work, but the provision in the Bill to create a new tax seems to have been inserted subtly and quietly by the Government because they, too, know that the provision will be inadequate. With the Bill we are not talking about a provision to help Scotland take control of its finances and create a new accountability; in fact it is to demonstrate the complete inadequacy of provisions of this kind for Scottish accountability. That means that it is not a Bill at all but a Trojan horse.

Many noble Lords seem keen to use the failures of the Bill, which they all discern, as a springboard to bring in another Bill to create devo-max, if you like to call it that, more high taxation and other measures. Almost every measure that the Scottish Government might like to control in due course, like pensions responsibility and social welfare, will reveal further inadequacies in the Scottish capacity to provide for them once they are transferred out of the United Kingdom. Noble Lords are creating this springboard towards separation where, under what they call devolution, we shall be independent in Scotland in all but name, and possibly ultimately in name as well. That would create a situation that is not what we are supposed to be debating, so the whole debate is being conducted under a cloud of self-deception in the hope that no one will notice that failure is built into the provisions of the Bill.

My noble friend Lord Forsyth has put his finger on this point extraordinarily effectively, and I am ashamed that I had not noticed it myself when reading the Bill. I ask my noble friend on the Front Bench to address this issue and explain why the provision is there and how he thinks it will be used in future.

--- Later in debate ---

[Lord Sassoon]

My Lords, my noble friend’s examples concern changing the rates of existing taxes rather than new taxes. However, I think that it will work fine. With the process that has led up to these clauses in the Bill, Calman has looked at potential taxes for devolution. There has already been considerable discussion in Scotland and between Scotland and the UK Government. When it comes to the potential for new taxes to be added, I have explained the criteria which the UK Government have set down. On procedure, we are working closely with the Scottish Government to clarify the process that requests for new taxes will go through before they are brought before both Houses of Parliament. We have an administrative process to be agreed by the Joint Exchequer Committee, which brings together Ministers from both Governments. Therefore, I see a process here—

[Lord Foulkes of Cumnock]

With all these discussions that have taken place, can the Minister tell the Committee whether the Scottish Government have accepted these provisions in the Bill?

[Lord Sassoon]

Of course we await legislative consent, but there have been many detailed discussions; there have been the reports of committees in both Parliaments and the noble Lord knows perfectly well—better than I—where things stand. As to the question of what fits the criteria, I am not going to speculate about what future taxes might come forward, but one has the useful case study about the Scottish land transaction tax which fits the criteria very well. That points out precisely how other measures could come forward in future.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I have a summary of the majority and the minority reports of the Scotland Bill Committee of the Scottish Parliament. The Minister will know that the majority report recommended that,

“the Scotland Bill be amended to devolve the full range of financial powers to the Scottish Parliament”.

I spoke with Linda Fabiani MSP just a couple of weeks ago and asked when this report was going to the Scottish Parliament, and she said not until after we have made a decision down here.

We have got deadlock on this. The Scottish Parliament will not consider this report until we have dealt with this, and we know that it is going to recommend something different. Surely, in view of all the criticism that we have had from both sides, and now from the opposition Front Bench, the Government would be well advised at this very minute to take this whole Bill away—we are going to look at it again next month—and reconsider this whole matter, after discussions with the Scottish Executive about how it will be dealt with in Scotland. Otherwise we will be in a stalemate.

[Lord Sassoon]

I thought that my agreement with the noble Lord, Lord Foulkes of Cumnock, would not last terribly long. This is a general point, which he could raise on every clause of this Bill. With all due respect, I really do not know what it has to do with this clause in particular.

[Lord Foulkes of Cumnock]

Why—

--- Later in debate ---

[Lord Sassoon]

I listen to all the guffawing going on, but many noble Lords have been in government here and there and will know that there is much good and important work that can and must be done to make such meetings effective. That is what is going on, and good progress is being made, including on the process for introducing a new tax under this Bill.

[Lord Foulkes of Cumnock]

The question I asked is so important on this issue because the Minister himself said this issue is the central part of the Bill. I thought of this months ago when I asked, in a Question to the noble and learned Lord, Lord Wallace of Tankerness, why we were going ahead with the Bill. It has become obvious that a huge coach and horses has been driven through a central plank of the Bill by the noble Lord, Lord Forsyth, and my noble friend Lord Sewel.

The best information we have is that the Scottish Parliament is going to reject the Bill. It is, you can shake your head as long as you like, Jim—sorry, Lord Wallace. Perhaps the noble and learned Lord can tell us what indications he has that the Scottish Government are going to accept this Bill as it is currently framed, if we agree it.

[Lord Sassoon]

My Lords, forgive me if I stick to the clause as we have it. It is a separate matter, which relates to the whole Bill. I agree on the importance of this clause. Of course there needs to be agreement to the whole Bill in due course but what we are doing today—we are not making a great deal of progress but it is important and we should deal with these important points—is trying to make sure that some of these central clauses are got right. I do not know where the noble Lord, Lord Foulkes, sees a coach and horses, because I have not seen one coming from my noble friend or anywhere else in this Chamber.

I would suggest that not all the speakers in this debate have talked about all the elements of the process by which a new tax would be introduced. I suggest that Members of this Committee might like to reflect on what the total package looks like. I believe that it is proportionate, including the criticality of those criteria which are appropriately laid out in the Command Paper. Incidentally, when it comes to the ultimate agreement to any proposals that come forward for new taxes, I remind the Committee that when the variable Scottish rate of tax was introduced in 1998, it was of course passed by this House, so we have precedent in relation to tax matters and Scotland on that variable rate, and on this House having competence.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I welcome this clause, and indeed when discussing the Scotland Bill offstage with my noble friend, he has tried to persuade me that it is a great Bill because it would bring back control of Antarctica to the Westminster Government, although “control of Antarctica” is perhaps putting it too strongly. Of course, another week has gone by and the Scottish Parliament has still not debated the report of its own committee, which suggests that legislative consent should not be given to this clause. So as my noble friend the Duke of Montrose has pointed out, it is difficult to surmise why the committee might now wish to retain responsibilities in respect of Antarctica, and the previous committee quite sensibly took the view that Antarctica should be a matter for the Westminster Government and the Foreign Office. As far as I know, Donald Trump has no plans to build a leisure facility in Antarctica, so I cannot imagine why the First Minister would think that his writ should run to Antarctica.

As my noble friend indicated, I had the pleasure of going to Antarctica a year ago, and it really is a spiritual experience. It is quite amazing. It is the only part of the planet that is completely unspoiled and the only example of an international treaty that I can think of which has actually worked. I think that that treaty is now up for renegotiation and renewal and it is absolutely clear that this clause is required because it should be obvious to everyone involved in those negotiations what the British interest is. I hope that the British interest will rest with ensuring that Antarctica remains a place where scientific endeavour and experiment can be carried out and which is protected from exploitation.

[Lord Foulkes of Cumnock]

My Lords, the noble Lord is being far too modest in saying that he went on an expedition to Antarctica. He climbed Mount Vinson, the highest mountain there, and he sent many of us dispatches which we received with great interest. He also raised hundreds of thousands of pounds for charity, and I think he should be commended for all of that.

[Noble Lords]

Hear, hear!

--- Later in debate ---

[Lord Wallace of Tankerness]

It was oversight, I suspect, but it is important that we now address it. Following completion of the consultation, the Antarctic Bill is drafted subject to minor amendments and is awaiting parliamentary time. There would have been a clause in that Bill seeking to resolve the devolution issues, but, as this Bill is now before Parliament, we thought that it was more appropriate to deal with it here.

[Lord Foulkes of Cumnock]

Will the Minister confirm that South Georgia and the South Sandwich Islands are not included in the definition of Antarctica?

[Lord Wallace of Tankerness]

I hesitate, because I recall seeing a definition of Antarctica as being all seas and islands below 60 degrees south. I was assigned to an Antarctic Bill in the House of Commons because I represented islands north of 60 degrees north, which seemed to be interesting logic. I think that, because South Georgia and the South Sandwich Islands are British Overseas Territories, they are not included in the definition—perhaps I will receive some clarification on that.

[Lord Foulkes of Cumnock]

As I understand it, the Falklands are a dependent territory of the United Kingdom and the South Sandwich Islands and South Georgia are dependencies of the Falklands. I presume that they are not included because of that. That is important given recent statements in Argentina and the importance of those two island groups as well as the Falklands.

[Lord Lyell]

Perhaps I may make my first intervention—I am sure that the Minister will be delighted. I have an interest very similar to that of my noble friend the Duke of Montrose in that in the first week, even before events gravitated to the Falkland Islands, great events took place on the island of South Georgia. In the communications with the Royal Marines and the forces there, there was considerable discussion about the Lyell Glacier, named, definitely, after my great-great-great uncle, one of the fathers of modern geology. As far as I am aware, there is no mineral wealth under the Lyell Glacier or anything that I or anybody in Scotland would be able to claim, but the charts and accounts will give us some assistance. It would be very helpful if my noble friend Minister could give us clarification as to what is classified as “Antarctica” for the purposes of the Bill.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Thursday 2nd February 2012 Lords Chamber

Moved by

[Lord Foulkes of Cumnock]

22: After Clause 14, insert the following new Clause—
“Variation of student fees according to origin of British students
In Part 2 of Schedule 5 to the 1998 Act, under Head L (miscellaneous) at the end insert—
“L8. Variation of student fees according to origin of British students
The setting of student fees for students from England, Northern Ireland or Wales studying at Scottish universities at rates different from those for students from Scotland studying at Scottish universities.Interpretation“Fees” has the meaning given by section 41 of the Higher Education Act 2004.””

[Lord Foulkes of Cumnock]

My Lords, it is my pleasure to move Amendment 22, which would prevent the Scottish Executive and the Scottish Parliament from imposing discriminatory fees on students at Scottish universities who are resident in England, Wales or Northern Ireland. The noble Lord, Lord Forsyth, has a similar amendment, Amendment 24. I must insist that he tabled it quite separately from my amendment and without any collusion whatever. I am saying this because his off-the-cuff comment earlier about the roadshow of the “toxic two” has been picked up north of the border and is already causing some interest. Both amendments were tabled with the same purpose.

[Lord Forsyth of Drumlean]

This is the first recorded occasion when the Scottish media have paid attention to anything that was going on in this House.

[Lord Foulkes of Cumnock]

I think that things are moving up the scale, although they are taking some time to do so. We are making a little bit of an impact there now.

I want to make it clear that in moving the amendment I am conscious of the sensitivities in relationships between Westminster and Holyrood, and between the UK Government and the Scottish Government. We have found in many of our discussions that this is a sensitive area in which we have to tread very warily, and I would hesitate to say anything that suggested that the UK Parliament was imposing its will upon the Scottish Parliament.

I say that having been a Member of the Scottish Parliament for four years. A number of noble Lords who have participated in these proceedings have also been MSPs—including the noble Lord, Lord Steel, who was Presiding Officer, the noble Lord, Lords, Lord Selkirk, Lord Watson and others who have participated, and, of course, the noble and learned Lord, Lord Wallace, the Minister who is to reply. Those of us who have been in Holyrood are aware of those sensitivities and we move with caution.

However, this Parliament has some responsibilities. The action of the United Kingdom Government in imposing very high fees precipitated this issue in the first place. I know that this is one area where the noble Lord, Lord Forsyth, and I might not totally see eye to eye. I am very pleased to see present the noble Lord, Lord Sutherland, who was a distinguished vice-chancellor of my old university, Edinburgh—not when I was a student, I hasten to add; he is not nearly that old, and neither am I. His experience and deep knowledge of the university sector will be very helpful, and that demonstrates some of the value of this Chamber.

We also have a wider responsibility for the European Convention on Human Rights and the equality legislation, as epitomised in the Equality Act. We therefore have to bear some responsibility for and take some interest in discrimination and equality. What has been not just proposed but agreed by the Scottish Executive and Scottish Government is tremendously unfair discrimination against students from England, Wales and Northern Ireland who go to Scottish universities. It really is quite disgraceful. It is astonishing, when you think of it, that students from Lisbon, Madrid or Berlin will all get in free to Scottish universities, but students from Belfast, London or Cardiff will have to pay fees.

[Lord Sewel]

Does the noble Lord recognise the supreme irony in the Scottish Government’s position? On the one hand, they are arguing for independence, but the policy they are pursuing can be carried out only while they remain members of the United Kingdom. If they achieved independence within the EU, they would not be able to have this pernicious policy.

[Lord Foulkes of Cumnock]

My noble friend, who was a distinguished administrator and academic at the University of Aberdeen—he was vice-principal—has put his finger on one very important matter. In fact, he has taken away a major part of my speech. Never mind about that. It is a massive irony, as my noble friend said, that the Scottish Government are able to impose these discriminatory fees only because Scotland is part of the United Kingdom. If Scotland was an independent country, as the SNP wants, that Government would be unable to impose those fees. Students from England, Wales and Northern Ireland would be in exactly the same position as students from Poland, Germany or wherever in the European Union.

[Baroness Liddell of Coatdyke]

My noble friend is making a valid and important point, but there is another dimension to the issue. It is largely the Barnett formula, which taxpayers throughout the United Kingdom contribute to, that allows the Scottish Government to act in this way. We are discriminating against those taxpayers from England, Wales and Northern Ireland.

[Lord Foulkes of Cumnock]

My noble friend and former boss as Secretary of State for Scotland has just stolen the second plank of my argument, but she put it very well indeed. It is a serious matter, because the parents of potential students at Scottish universities from London, Belfast and Cardiff are paying money into the UK Exchequer and that money, through the Barnett formula, subsidises Scottish universities, whereas parents of students from Berlin, Lisbon or Madrid are paying nothing to the UK Exchequer. That is an astonishing position to take.

This has been recognised as an unfair anomaly and discrimination not only by Members of this House. Today's Glasgow Herald states that legal action is already being taken by Phil Shiner on behalf of Public Interest Lawyers. Let me quote directly:

“Lawyers will launch court action as early as next month to stop the SNP Government's controversial policy of enabling Scottish universities to charge English students up to £9000 a year in tuition fees while home students pay nothing, The Herald can reveal”.

That action is taking place, but how much better it would be if, instead of having to defend that action—in practice, defending the indefensible—the UK Government were to accept my amendment and the Scottish Government were to agree to stop that discrimination.

To quote from the Guardian—no, it was the New Statesman, which is even better than the Guardian—the point has been made that,

“The resentment felt by English students, who will soon pay the highest public university fees in the world, will further destabilise the Union”.

One wonders whether the First Minister of Scotland has an ulterior motive, because it is alienating people in England. Lots of people from south of the border, when they find out about that, say how disgraceful it is. I am glad to say that I have also been approached by lots of people north of the border who think it is disgraceful: students, parents and others who are really concerned.

The New Statesman continues:

“The growing disparity between the two countries is a reminder of the incomplete nature of Britain's constitutional settlement”.

That is absolutely right, and something that I propose to deal with in other amendments to the Bill and which I have raised elsewhere. It continues:

“The UK is now neither a unitary nor a federal state and its largest constituent group—the English—feels increasingly unrepresented. For too long, politicians have complacently ignored threats to the Union; they must now act to repair our disunited kingdom before it is too late”.

I say to that hear, hear. This may be being done for some positive reasons, but in my view, it is for ulterior motives as well.

I hope that we will consider passing the amendment. It is important that we send out a strong call from this Chamber, from Westminster, to the Scottish Parliament and the Scottish Executive that they should reconsider this. I must be honest: I know that one or two of my colleagues in the House of Commons, one or two here and one or two in the Scottish Parliament have had some reservations about me pushing ahead with the amendment. To them, I cite Claire Baker, who is the Labour spokesperson on education in the Scottish Parliament. When the order went through the Scottish Parliament, the Liberal Democrats and the Labour Members did not vote against it for interesting reasons. Claire Baker said:

“I remain to be convinced that the order provides the right answer”—

she did not believe that—

“but I accept that action must be taken. After this morning’s evidence I remain concerned about the introduction of a variable fee and the lack of regulation and access arrangements, and I have wider concerns about the £9,000 fee level that has been set. However, I will support the order, which I realise is important if we are to manage cross-border flow and protect student places. I will return to the fee level, the regulator and other issues of concern when primary legislation is being considered”.

So there is deep disquiet. People in the Opposition in the Scottish Parliament feel that they are being given Hobson's choice: they feel that they are being forced into this. Otherwise, universities, including my former university of Edinburgh, will be squeezed even further in their income and find it more difficult. The members of the Opposition in the Scottish Parliament have been placed in an impossible position by the sky-high fees imposed by the United Kingdom coalition Government and by the discrimination imposed by the Scottish Administration. That pincer movement is making it very difficult for people.

Finally, I return to the main point. Whatever the detail of the argument, whatever the facts and figures—I know that the noble Lord, Lord Sutherland, and others will give more facts and figures about what is happening in the Scottish universities—it is deeply disturbing that such blatant discrimination should be taking place against students and potential students from England, Wales and Northern Ireland. I hope that the House will send that message very strongly to Edinburgh today.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I will deal with that very point. I started by saying very much what the Minister has said in his last few words. I am very aware of that sensitivity. I will come back to this in a few minutes, but I am really grateful to the Minister for agreeing to take this away and reflect on it. When he expresses the view to his colleagues, I hope he will make it clear that this is an all-party, cross-bench, overwhelming, united, passionate and powerful message from the House of Lords. We have had people from all the parties, with lots of graduates from Scottish universities and other universities, all powerfully talking in one direction. That is a message to get over: we may be non-elected, but some of us have been elected in other places for long periods and have a lot of experience. I hope that message will get through.

I will make two points before I come to my last general point. First, on unintended consequences that arise, the noble Lord, Lord Forsyth, said this was a question of domicile, not nationality, which is absolutely right. Let me tell the Committee of one of the unintended consequences. Early last year, a Tory Peer—I will not name him—told me that he already knows of relatively well-off people who are buying up flats in Edinburgh to establish domicile there, so that they will not have to pay fees. That is the kind of thing that happens—and no, it was not the noble Lord, Lord Forsyth, saying that. Just as others have said, those who are relatively well off might pay the fees while others can get what I might call a domicile of convenience, so as to not pay them. They will eventually sell the flat, or whatever, and manage to reap some profit on that.

My second point is on what the noble Lord, Lord MacGregor, and, again, the noble Lord, Lord Forsyth, said about the Barnett formula. There is an amendment tabled for later in this Committee from my noble friend Lord Barnett himself—I call him Lord Formula—to have this revised. He has wanted that done for some time. We know that, per capita, it is exceptionally generous to Scotland. That is why the Scottish Government and the Scottish Parliament have been able not just to keep free higher education but free prescriptions and free personal care as well, all of which is building up tremendous resentment south of the border. There is a feeling here that the taxpayers south of the border are paying for all those better services. We heard that expressed in a previous debate in this House by Members from England, and it is a very strongly held feeling.

I urge the Minister to think about the consequences. There is of course another way of dealing with this, which is how Mike Russell, the Education Minister in Scotland, wants to deal with it. He wants to end the anomaly by stopping allowing European students in for free. He wants to go to Commissioner Vassiliou and say, “Let's have this changed so that we don’t have this obligation”. I do not think he will succeed in that—I think it will be impossible for him to succeed in that—but let us think of what he is trying to do. He is trying to make it financially difficult not just for English, Welsh and Northern Irish students but for European students to come to Scottish universities. My noble friend Lord O'Neill spoke about the Caledonian closet. Can your Lordships imagine Scottish universities reverting to what they were centuries ago when Glasgow, for example, had just students from around the Glasgow area? They would become narrow, introverted and isolationist universities and not in the old tradition of Scottish universities. I hope that we will not move in that direction.

The Minister was genuinely helpful and I hope that he will take it away, as he said, and discuss it. I listened very carefully to my noble friend Lord Browne. I think that he supported me in principle and that he will take it away to look at in more detail. I will help him in that task. The noble Lord, Lord Forsyth, asked the Minister to talk to the Prime Minister about it. Can I add the Deputy Prime Minister, just to make sure that it is all squared with both parts of the coalition? Will the Minister also talk to the Scottish Government about it and say that there is a strength of feeling, there are anomalies and there may be other ways around it? Will he ask them to consider the options for ending an unfair and discriminatory arrangement? We have some time until Report stage to do that. We are not going to finish this Committee stage until late in March so we will probably not get to Report until April.

I hope that the Minister will go away and talk sincerely to them. I know that he is busy with other things, but I hope that he can take some time out to talk to people about this anomaly, which clearly upsets so many people, not just in this Chamber but, far more importantly, outside it, and try to find a fair and equitable solution. On that basis, I shall withdraw the amendment.

[Lord Forsyth of Drumlean]

My Lords, I thank the Minister for his response to the debate which was very generous, giving what a beating he was subject to during it. I always used to say of my late learned friend Nicky Fairbairn that if I were on a murder charge I would have him defend me. In the absence of Nicky, given that my noble and learned friend made a good job of a pretty limited set of arguments, that accolade may fall to him. We do not need to think about the future to see what is going to happen in the future. Only this week the UCAS figures were published. They show, surprise surprise, that more Scottish and European students, but fewer English students, are going to Scottish universities.

I feel a bit alarmed by the interests that were declared by my noble friends Lord MacGregor, a former Secretary of State for Education, and Lord Sanderson. I suppose I ought to declare a grandson, whom I am taking to the rugby on Saturday.; he will be supporting England and I will be supporting Scotland. He is only 13, but I would not like to think that his choice of university should be in any way limited by where he lives in the United Kingdom.

I do not normally disagree with my noble friend Lord Flight, but he has made some remarks about Irish universities. I ought to declare another interest: my youngest daughter went to Trinity College, Dublin. When she decided to go there, I thought that it would cost me an arm and a leg but it was free because there are no fees in Ireland. The consequence of that has been that a number of English students go to Trinity College, Dublin, but the university limits the number that it will accept and the result is that now you need to get four As, I think, in order to be able to go there. A distortion is being created not just in residency or wealth but also in the ability of the students. Only very able students from Europe are able to get into these universities.

I do not know whether or not it is legal to have a quota, but it is a remarkable argument. “Independence in Europe” was the slogan, and the whole idea of Europe—which, I confess, has been distorted—is that it is an open, single market where you have free movement of labour. That is the attractive part of the idea. It seems to be a complete distortion to argue that we are in favour of a single market throughout Europe but not within the United Kingdom. That argument will lead to fragmentation, which is precisely why Mr Salmond and his friends support it.

I will not detain the Committee; we will return to this. However, I want to pick up a couple of points that the Minister made. It is not right that an English student wanting to go to a Scottish university will to have to pay the same fees, because in Scotland we have four-year degrees. Personally, I would be very sad to see the end of the four-year degree system, but that may also be an unintended consequence of the distortion that has been created.

The Minister, speaking from the Dispatch Box, said something which absolutely horrified me, and which I hope will not be the general policy of the Government. He said that it would not be appropriate for him to comment from this Dispatch Box on the policies of the Scottish Government. Excuse me—this is part of the United Kingdom. The devolution Bill—the Scotland Bill—gave powers to the Scottish Parliament to exercise, but the powers to legislate on these matters remain with us. It is entirely appropriate for Ministers at the Dispatch Box to comment on the policies of the Scottish Executive—not Government, Scottish Executive—particularly if they affect the people of the rest of the United Kingdom. That is the kind of principle that I would expect to hear being enunciated by Mr Salmond and the separatists. It is the duty of this House to look at the consequences of the Scottish Executive’s policy and their impact not just on Scotland but on the rest of the United Kingdom. I hope that my noble friend will take this away and consider it very carefully indeed. There has not been a single speech in support of the current position. I believe that if we were to divide the Committee and people knew what they were voting for, there would be a jam in one of the Lobbies and the Minister would be searching for tellers. This matter needs to be looked at very carefully.

The noble Lord and I did not confer on this issue at all. We both tabled amendments because we are both aware of the feeling on this matter. I put down my amendment as an amendment of principle because it seems to me that the principle of devolution should be that policies which affect Scotland are made in Scotland and that the Scottish Parliament should be responsible for them, but that in so doing—this is an important principle—people in the rest of the United Kingdom should not be disadvantaged vis-à-vis other European Union citizens. If I had put down an amendment that said the Scottish Parliament should have the power to legislate in a way which discriminates against people in England, Northern Ireland and Wales but not other EU citizens, it would have been laughed out of court. That appears to be the position of the Government—that they are prepared to have a status quo of that kind.

I do not see this as being something that might have unintended consequences; it seems to me to be central to the whole philosophy of devolution. I find myself in a very surprising position in having to explain the philosophy of devolution as I have not been a strong supporter of it because I thought that it would lead to exactly the difficulties which we are now encountering. However, that is water under the bridge. If we are to maintain the United Kingdom, we have to make it work. Setting boundaries and a framework seems to me a more appropriate way of going forward than limiting the scope in particular areas of policy. But in whichever direction we go, we need to resolve this problem one way or the other. One way of dealing with it would be to say that the fees of those students who go from England to Scottish universities are picked up by the Department for Education and that the money is taken off the block grant to the Scottish Parliament. There is a whole range of ways of doing it. I think that would probably be the most provocative way of doing it. There are other ways of doing it but I urge my noble and learned friend and his colleagues to think carefully about the best way of doing it, perhaps as my noble friend Lord Maclennan said, in consultation with the Scottish Government. We cannot go on like this.

--- Later in debate ---

Moved by

[Lord Foulkes of Cumnock]

26A: After Clause 14, insert the following new Clause—
“Rail passenger services
(1) In Part 2 of Schedule 5 to the 1998 Act, section E2 (rail transport) is amended as follows.
(2) In the exceptions insert—
“Services for the carriage of passengers by railway which start and finish in Scotland, including the power to decide who will run such services, the provisions of the Railways Act 1993 notwithstanding.”
(3) In the interpretation insert—
““Services for the carriage of passengers by railway” has the meaning given by section 82 of the Railways Act 1993.””

[Lord Foulkes of Cumnock]

My Lords, I shall be very brief on this because I know that we have some of the most distinguished lawyers from Scotland waiting in the wings to talk about the Supreme Court. I am looking forward to hearing them do so.

This amendment was moved by my colleague Thomas Docherty in the Commons and has the support of the trade unions. It comprises a simple, technical new clause. Most people think that the Scottish Parliament already has the power to decide on the model for the ScotRail franchise, or for the franchise in Scotland. After all, it has to fund that franchise through its Ministers and it is responsible for the letting of the franchise. It is also responsible for funding the building of new railways in Scotland. We have successfully given greater powers to Scottish Ministers to do everything except determine the model of that franchise. I will not argue that a switch to a not-for-dividend model would necessarily be the best. The issue is that Scottish Ministers must let the franchise according to a privatised model. I am not saying that that is wrong; I am just saying that they should have freedom to decide what the model should be. I hope that noble Lords, particularly the Minister, will note that I am suggesting additional powers for Scottish Ministers and the Scottish Parliament, which would be welcome.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, gave a fair analysis or description of what his amendment is intended to do. The noble and learned Lord, Lord Boyd, said that this might just be an oversight in the original arrangements. The noble Lord, Lord Foulkes, said that it was too small a matter for the Calman commission. I think that quite a significant change is proposed; it is not a small matter at all. The fact that I do not recall any representation on or consideration of it as part of the Calman commission may say something about whether there is widespread support for it.

The noble and learned Lord, Lord Boyd, asked why legislative competence has not gone hand-in-hand with executive competence. I think I am right to say that executive devolution was not present in the 1998 Act, but was subsequently negotiated between the then Scottish Executive—I think that Mr Henry McLeish took a role in that—and the Labour Government. The agreement reached was one of executive devolution. The Labour Government did not think it right at that stage to extend legislative devolution, and that continues to be the position of this Government. The Government are committed to maintaining a GB-wide national rail network which is publicly specified and funded in the public interest but which is provided by the private sector.

It is important to recognise the substantial executive devolved powers which Scottish Ministers have in relation to railways. They include giving general guidance to the Office of Rail Regulation, giving notice of their requirements for the outputs of the rail network in Scotland and the level of public funding available to the Office of Rail Regulation and publishing a Scottish railway strategy. They also have power to designate, let, fund, manage and enforce Scottish franchises and publish a statement of policy on franchising; to set fares; to publish a code of practice protecting the interests of disabled passengers; to appoint a member of the Passengers’ Council; to give financial assistance to any person for the purpose of developing Scottish railways; and to publish freight grants schemes for Scotland. Indeed, they have considerably more powers than that. Of course, the Scottish Executive have also taken considerable initiatives in building and constructing new railways—my noble friend Lord Mar and Kellie is probably a personal beneficiary of the railway from Stirling to Alloa—so substantial powers are already available.

However, as I said, we believe that devolved powers are best exercised within a coherent GB structure, as provided for under the Railways Acts 1993 and 2005. It is essential that the overall regime for the provision of rail passenger services and their regulation remains a reserved matter. It would not be sensible to run the railway in such a way that the Scottish Parliament through legislative devolution could overturn the framework that governs the operation of passenger services in Great Britain as a whole.

The noble and learned Lord raised the question of Wales. I will certainly confirm the position, but the fact that we wish to keep a GB structure means that there is no legislative devolution to the Welsh Assembly.

[Lord Foulkes of Cumnock]

What I am proposing would not overturn the structure of the railways in Great Britain as a whole, as the Minister just said, but is merely filling a little gap in the model, the kind of franchise that can be agreed by the Scottish Executive and the Scottish Parliament. It is a small but important addition and it would not disturb the rest of the railways in the United Kingdom. I hope that he will give it some serious consideration.

[Lord Wallace of Tankerness]

I think it would, if we take it that GB includes Scotland. If Scotland could have a different model from that operating in the rest of Great Britain, that would amount to a material change. We believe that the right balance is in place. It was a balance struck not by this Administration but by the previous one, and not just as part of the original legislation but as one for which specific consideration was given for a Section 30 order. The arrangement struck the right balance and I urge the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

On every previous occasion, I have said that I am really grateful to the Minister for listening carefully to the arguments and being sympathetic, accepting some of the arguments and going away and looking at the amendment. In this case, I am disappointed. I could have gone on at much greater length arguing the case, but I have some concern for my noble friends the eminent lawyers from Scotland and we need to get on to the issue of the Supreme Court. However, this is an important issue. The trade unions feel strongly about it. I know that the Scottish Government would welcome this change. It seemed to have some support in the House of Commons, and would be a coherent arrangement.

The noble Earl, Lord Mar and Kellie, is a very quietly spoken Member of this House and always speaks exceptionally briefly, but in this case his point was really quite a remarkable Exocet. In his brilliant intervention, he said that whereas there could be no public ownership so far as Britain was concerned, in relation to United Kingdom interests, French, German or Dutch railways—all three are publicly owned—would have no problem at all in buying into and taking over this franchise. That is a serious anomaly. It might be best to have some kind of United Kingdom or Scottish structure different from the current ScotRail structure to deal with it. I hope that the Minister will give further consideration to this between now and Report so that we can avoid a rather longer debate then. Nevertheless, I beg leave to withdraw the amendment.

Amendment 26A withdrawn.

--- Later in debate ---

[The Lord Speaker]

In Clause 18, Amendments 42 and 43 not moved?

[Lord Foulkes of Cumnock]

Not moved.

[The Lord Speaker]

The Question is that Clause 18 stand part of the Bill. As many as are of that opinion will say Content.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Forsyth of Drumlean]

I do not think that Alex Salmond would like being compared with Moses. After all, Moses never got to see the Promised Land. However, on reflection, perhaps my noble and learned friend is right.

One other aspect of the consultation paper is that he wants to rig the franchise and give the vote to 16 and 17 year-olds. My researchers tell me that there are only nine countries in the world that give the franchise to 16 and 17 year-olds, two of which are North Korea and Cuba, both of which have leaders with a high opinion of themselves.

I am not noted for carrying a flag for the Scottish Parliament but, to be serious, there are some very important recommendations here, on some of which I have tabled amendments so that they can at least be debated. I do not agree with all of them, but some of them are perfectly sensible. For example, this Bill provides for the control of speed limits in Scotland to be devolved to the Scottish Parliament. I think that that is daft, because you would cross the border and suddenly there would be a different speed limit. But it has been agreed—it is in the Bill and I do not want to question it. However, the committee of the Scottish Parliament says that it should not give legislative consent unless the Government agree to change the Bill, which at the moment allows the Scottish Parliament to set the speed limits for cars but not for HGV vehicles. It seems a little odd that we are prepared to devolve responsibility for motor cars but not for HGVs. I have tabled an amendment to which I hope my noble and learned friend will give fair consideration at a later stage. There are other issues, too, which should be considered.

I know that my noble and learned friend is agog as to whether I am going to press this matter to a vote. In order to avoid having to do so, I have tabled an amendment on the issue of legislative consent which says that if within two months of Royal Assent for this Bill we have not had legislative consent from the Scottish Parliament to those provisions which relate to its responsibilities, then the Bill will fall, and only those provisions which do not require legislative consent will remain. I hope that my noble and learned friend, after the consultation period has been concluded, and given the evidence of a lack of good faith on the part of the First Minister, will consider amending the Bill to provide for a fair and proper referendum to be conducted. In those circumstances—if the Scottish Parliament did not give legislative consent—we would be left with a Bill that simply provided for a referendum. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, it is never easy to follow the noble Lord, Lord Forsyth, particularly when you agree with him. Like him, I am very glad that the Government tabled their Business Motion on Tuesday and that we agreed it, because if they had not, I would have supported and voted for the Motion of the noble Lord. It would probably have been the first time that I had done so, but it would have been with enthusiasm and alacrity.

Some of my friends warned me against allying myself with the noble Lord, Lord Forsyth, saying that he is toxic in Scotland. I know that the poll tax which he was associated with was not very popular in Scotland, but I take the simple view that even a Tory is not always wrong. Then, when he or she is right, we should support them; and I think that the noble Lord is right here. I sincerely commend the Prime Minister—I very seldom do that—and the noble Lord, Lord Forsyth, on their clear, unequivocal and dedicated support for the union, because it is not in their narrow party interest. If they were looking after their narrow party interest, they would want to get rid of Scotland, with all the Labour MPs who come to the United Kingdom Parliament.

I say to my colleagues, with great sincerity, that I am sorry that some of them seem afraid of working with the Conservatives and the Liberal Democrats on this campaign to protect the union. Of course we will get jibes from Salmond and the cybernats but that is because they do not want us to work together and to be united. That is why they are saying, “Oh, you are working with the Tories. This is dreadful. This is awful”. I am sure that Members opposite will understand that that carries some resonance, in Scotland in particular. However, I was four years in the Scottish Parliament and I remember that it was Annabel Goldie and the Scottish Conservative MSPs who sustained Alex Salmond. So it is all right for him to work with them when it suits him, but he turns on us when we consider doing so.

[Lord Forsyth of Drumlean]

Does the noble Lord recall that I shall always be grateful to the Scottish Nationalists for bringing down a Labour Government and enabling Mrs Thatcher to become Prime Minister.

[Lord Foulkes of Cumnock]

Indeed. That is something else we agree on. Like the noble Lord, Lord Forsyth, we Labour people keep reminding them of that treachery as well. The only good thing about it was that it enabled me to get elected in 1979, but that is another story.

A few years ago I asked one of the most right-wing Thatcherites, George Mathewson, who said that the only person who had done anything good for the Scottish economy was Margaret Thatcher, why he was now supporting the SNP. I could not understand it because he was a real hard-line Tory. He said, “Because I want to keep you Labour people out in Scotland”. That is why he was doing it and, no doubt, that is why Souter, Farmer and others are as well.

I wish to take this opportunity to urge us all, unionists, devolutionists and the Liberal Democrats—who ought to be federalists—not to be fearful of Salmond. The Liberal Democrats need to rediscover the enthusiasm for federalism contained in their manifesto and I was glad to see Simon Hughes at least talking about devolution within England. I have known Salmond for a very long time, since before he was a Member of Parliament. Of course he is cunning, able and a gambler—but he is not infallible. Already we have seen that he is unable to answer some of the searching questions about the reality of independence. When he is asked about the euro or the pound and about defence—when he is challenged on these issues—he is found wanting. We should challenge him at every opportunity. In particular, he wants to muddy the water with the argument between devolution—or devo-max, whatever they call it—and independence by pretending that there is very little difference; that you can move quietly and easily from maximum devolution to independence. Nothing could be further from the truth. There is a huge, vital difference and we must remind people in Scotland of that difference. That is why the first question—and it must be the only question—is whether or not Scotland should remain part of the United Kingdom. The noble Lord, Lord Forsyth, is right—Salmond is proposing a fixed question. The question should be: “Should Scotland remain part of the United Kingdom, yes or no?”. That is the honest, sincere question but Salmond is trying to muddy it. Once we decide—as I hope we will—that Scotland should remain part of the United Kingdom, then of course we can have a detailed debate about how much devolution. We will no doubt discuss that, hold different views and then come to a consensus on it.

--- Later in debate ---

[Noble Lords]

Hear, hear.

[Lord Foulkes of Cumnock]

It is down for next Thursday as well. Sometimes I think that the Whips on both sides have got it in for us Scots by tabling Scottish business on a Thursday. Not every Member of this House comes from London. Those of us from Scotland who have to travel down and back each week need some consideration in relation to business. It is not just the Whips on the other side but my own noble friends. I have spoken to them—gently—about trying to avoid Thursdays.

We also need to give each aspect of the Bill careful consideration. Some people say we should just rush it through. Salmond accuses us and calls us, as the noble Lord, Lord Forsyth, said, this “unelected House”. He keeps going on about that but this House is part of our constitution. While we exist, we have a responsibility and duty to deal with legislation properly. We should not be ashamed of that. We should not cower.

[Lord Hughes of Woodside]

Would my noble friend remind the House that the Bill was passed by the elected House of Commons in the first place?

[Lord Foulkes of Cumnock]

Absolutely—and, like every other Bill, it is important that we give it detailed consideration. Like the noble Lord, Lord Forsyth, I think that we should consider holding off completing consideration of it until that second legislative consent Motion is through. I have the greatest respect for the Minister, as I do for my own Front Bench colleagues—my noble friend Lord Browne of Ladyton gave me a wee look then. I respect their agreement to hold off consideration until later. However, I hope that they will now give careful consideration to holding off final approval and accepting the amendment of the noble Lord, Lord Forsyth, until the second legislative consent Motion is agreed because this is Salmond’s latest trap.

The future of Scotland does not just affect we Scots but everyone in this United Kingdom. Every Member of this House has a responsibility to take part in that. We must fight to protect the union. It is the most successful economic union in the world, which has existed, developed and moved forward for the past 300 years. It is worth all of us fighting for it. Whether we feel inhibited as unelected Members—I that hope we do not—we should fight for what we think is right.

[Lord Sanderson of Bowden]

My Lords, it is not the first time that, rather surprisingly, I have had to rise to agree with everything that the noble Lord, Lord Foulkes, has said. I, too, have had experience of Mr Salmond as a Minister, when I was in charge of fisheries in the Scottish Office. Of course, Alex Salmond was Member of Parliament for Banff and Buchan, which is—as anyone knows—the main fishing area of Scotland. I can assure noble Lords of what the noble Lord, Lord Foulkes, just said: we are dealing with an extremely clever, devious man, apparently easy going until things are at a difficult stage, and then he will put the boot in.

I will say just one very sincere thing about this particular Bill, which is vital for us and for Scotland. When we consider the referendum, there must be no weakening of the powers contained in the Scotland Act to hold on firmly to the powers that Westminster has over the constitution. This is what my noble friend Lord Forsyth is getting at. I am extremely worried that there are two consultation papers. There is one that we have already seen and one produced in Edinburgh yesterday. The date for final submissions for the Edinburgh document is May. I am very worried that if this goes into the next Session of Parliament—as we hear is likely to happen—Mr Salmond will again get his way. We must not let that happen. We must ensure, through the Scotland Bill and my noble friend on the Front Bench, that when we face the referendum we have adequate safeguards in our Bill to enable us to tell Mr Salmond, “These are the rules by which we are playing”.

--- Later in debate ---

[Lord Wigley]

Well, it is for noble Lords to decide for themselves whether the noises made in this Chamber and heard in Scotland will help or hinder the outcome of a referendum that they wish to hear.

[Lord Foulkes of Cumnock]

That is exactly what the cybernats say. Is it not to try to shut us up that they are saying that?

[Lord Wigley]

No, indeed, it is not to shut anybody up but to raise the question that every noble Lord or noble Baroness will answer for himself or herself about the words that they choose in following this very important debate with regard to the future relationships of the countries of the United Kingdom. The noble Lord, Lord Forsyth, rubbished the way in which Alex Salmond had introduced the question, referring to it as a rigged question. He did not, however, read the question out. It is:

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

I have enough respect for the people of Scotland being able to make a judgment on that, whichever way it goes, because the question is absolutely clear-cut. One can of course have different versions of a question, but that is not a rigged question.

--- Later in debate ---

[Lord Kerr of Kinlochard]

My Lords, I am ashamed, as a Scotsman and a Scots unionist, that it took a Welshman to make that point. I agree about the language.

I felt uneasy on 10 January when the noble and learned Lord, Lord Wallace of Tankerness, presented the Government’s consultation paper to us. There was enormous cross-Chamber unanimity that it was a jolly good document, that it was right in law and that it was right on the question and its timing. All the blue bonnets from over the border, the Forsyths, the Foulkeses, the Steels, the Langs—the Scottish political aristocracy of yesteryear—were all strongly in support of what the United Kingdom Government said in their consultation paper. A different view was taken by quite a large proportion of the Scottish people, for whom this all may have seemed a little odd. I do not disagree with the noble Lord on what he said about the law; the paper is mainly about the law and reserved powers and the power in Section 30. However, it is not clear beyond peradventure in Scotland that the terms and the timing of the question need to be settled by us, not by the Scottish Parliament. I am not saying that the people who disagree with that are right but merely that it is a question for debate.

In the debate that I have referred to, the noble Lord, Lord Forsyth, put a number of interesting questions to the Scottish National Party and he has done so again today. He has made an interesting, lively, jocular debating speech, asking questions of the SNP. I feel sorry for the Minister who has to answer the debate; it is not really his job to answer for the SNP. Here is my serious point: why is there not someone in this Chamber who does answer for the Scottish National Party? I know the answer, but it would be highly desirable that all parties that are represented in this Chamber should make informal representations to the missing party. I do not support the amendment of the noble Lord, Lord Forsyth; we should go ahead with the Bill and the Government’s timetabling proposals seem absolutely right to me, but our debates on the Bill would be greatly assisted if we had half a dozen people here who actually believed in the policies of the SNP, perhaps because they were members of it.

[Lord Foulkes of Cumnock]

I completely agree with the noble Lord, Lord Kerr. He may know the answer to his question but maybe not everyone does. My good friend and SNP MP Pete Wishart has raised regularly at SNP conferences that they should take up the offer to nominate for this place. That has been vetoed again and again by Alex Salmond.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, we have had a wide-ranging and diverse debate on this comparatively simple Motion, and we have the noble Lord, Lord Forsyth, to thank for that opportunity. I have not been long in your Lordships’ House, but when discussing Scotland I have become used to hearing the same familiar voices—speaking on some of the same issues, I have to say.

This debate in its diversity has added something and I am particularly pleased to have heard from the noble Lords, Lord Empey and Lord Singh, and, although it is a Scots voice, from the noble Lord, Lord Kerr. The points that they made individually and collectively should be listened to by my Scots colleagues. I was pleased that on Second Reading my noble friend Lord McConnell made a forward-looking speech. Scotland is in its politics, as I perceive it, beyond arguments that may well have served those of us who wanted to see the union held together. It is now looking for reasons to stay in the union rather than reasons why it cannot leave the union. The tone and content of how we conduct ourselves in these debates is crucial in the modern world. In my contribution to these debates, I intend to try at all times to describe a Scotland that is better for the people of Scotland and the people of the United Kingdom. Some strong strands or threads of debate are emerging already which suggest that there is an appetite in your Lordships’ House for this kind of debate and I am very pleased about that.

My second point is about a slight discord with my noble friend Lord Foulkes who is a very good personal friend as well as being a noble friend and a party colleague. My recollection of the general election on that terrible night in 1979 was not that his election was the highlight in Scotland, but that it was the election of my noble friend Lord Maxton to the constituency of Cathcart. It was a bright light in an otherwise very dull night for me. I hate to introduce that level of discord and I hope that my noble friend will forgive me, but that is certainly my recollection.

[Lord Foulkes of Cumnock]

It is a debatable point whether the achievement of getting rid of Teddy Taylor was better than getting rid of Jim Sillars. Perhaps we could discuss it outside.

[Lord Browne of Ladyton]

The margin of winning may have been very narrow but I certainly know where I stand. I am happy to debate with my noble friend outside but let us just say that there were very few bright lights that night and maybe we should savour them all.

My third point is that I am grateful to the Government, the usual channels or whatever the processes are, which I have never quite got to grips with in this place, for the level of cross-party engagement to manage the order of consideration of the Bill. Having been party to that agreement I shall resist the temptation to discuss referendums and questions relating to referendums in this contribution.

However, I will break that general rule in order to make one point. It struck me as very interesting—indeed, instructive—how quickly the noble Lord, Lord Wigley, who came to the aid of Alex Salmond, went from trying to persuade us that the proposed question was straightforward, via one very simple but telling intervention by my noble friend Lord Gordon, to a position of having to try to define one word of it in order to explain why it was straightforward. If I had had the opportunity to cross-examine him further, I suspect that we may well have got a long dissertation from him on that comparatively simple and straightforward question that would have left us all utterly confused about whether a yes or no answer would have made us any the wiser about the view of the people of Scotland. However, these are discussions for another day. Having agreed this with the Minister, as well as with other Members of the House and with the coalition Government, I shall resist the temptation to say more.