Scotland Bill

Lord Davidson of Glen Clova Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, I add, if I may, to the many congratulations to the noble Lord, Lord Campbell of Pittenweem, and the noble Baroness, Lady McIntosh of Pickering. It is a joy to see two members of faculty joining this august body. The welcome from the noble Lord, Lord Stephen, was perhaps less warm, identifying as he did the difference between members of the Faculty of Advocates and the solicitor branch. However, I assure noble Lords that the ratio of nine members of the faculty to one Scottish solicitor does not always happen in debate.

As ever when one is dealing with legislation to do with Scottish devolution, there has been a lively, lengthy and informed debate. As ever, many questions have arisen to which the answers from Her Majesty’s Government are eagerly awaited. Some of these issues, as the noble Marquess, Lord Lothian, observed, are not entirely novel, so perhaps the answers have already been prepared.

One wonders whether the progenitors of the Scotland Act 1998 ever foresaw that their work would require to be revisited quite so often and quite so extensively. Be that as it may, the Scotland Bill, implementing as it does the recommendations of the Smith commission, is a remarkable piece of legislation. I join the noble Baroness, Lady Goldie, in saying that the noble Lord, Lord Smith of Kelvin, deserves considerable gratitude from both the UK and Scottish Parliaments for the work he has carried out in bringing about this remarkable piece of work. Reflecting as it does the work of five political parties represented in the Scottish Parliament, as well as the very many other contributors, the Smith commission makes for a substantial constitutional contribution.

As my noble friend Lord McAvoy has pointed out, this side of the House has obtained a number of amendments by concession from the Government to bring the Bill into line with the Smith commission recommendations.

I will try to cover some of the many significant points that noble Lords have raised today. I start, if I may, with Clause 1—always a good place to start in a Bill—and the question of permanency of the Scottish Parliament and Scottish Government. The noble and learned Lord, Lord Wallace of Tankerness, drew this very swiftly into the area of federalism, as Liberal Democrats sometimes do. I was not sure whether he saw the permanency provision as one that was a bar to federalism or one that maybe encouraged a referendum on federalism to take place in due course. Be that as it may, he identified an important question for the Minister to answer: the question of whether the legislative consent Motion has two categories and how these are to be dealt with.

The noble Lord, Lord Lang of Monkton, raised fundamental issues in looking at this clause, going to the very root of the sovereignty of Parliament. These are very deep waters. Perhaps this may not be the right time at which to examine these points, but they certainly make the constitutional position of the UK, which is sometimes lost sight of, very much an issue to be looked at in the context of this Bill.

As the noble Marquess, Lord Lothian, observed just a few moments ago, it does rather seem as though permanence is not for ever. Be that again as it may, the noble and learned Lord, Lord Mackay of Clashfern, echoed that the issue of sovereignty is an important point. That was picked up on by, I believe, his noble devil, the noble and learned Lord, Lord Hope of Craighead. He further developed the concern that this question might result in these issues having to be determined in a court, and that might make matters even livelier than people perhaps have considered thus far.

My noble friend Lord Foulkes of Cumnock, who styled himself as, I think, a disappointed devolutionist, thought that clarity might be helpful to some degree. I am possibly helping the Minister here in saying that permanent Scottish government does not actually mean permanent SNP Scottish government. However, the point that has become rather more concerning in Scotland and was identified by the noble Lord, Lord Steel of Aikwood, is the question of a one-party state. This is a warning; it is not actually a representation of the reality at the moment. However, these issues should not be ignored. They reflect real concerns in some quarters in Scotland.

The noble Earl, Lord Stair, raised the question of the committee structure in the Scottish Parliament and identified that the tendency for domination by one particular party is of real concern. My noble friend Lord Maxton reminds us that devolution is a democratic process, and I trust that his words will be carried northwards. The noble Lord, Lord Norton of Louth, questioned the constitutional and intellectual coherence, and I think many people can understand his point. However, it is perhaps a high bar in UK constitutional matters to require intellectual coherence at every stage. One has only to occasionally consider the debates about the reform of the House of Lords, where one or two oddities have presented themselves—not least the constitution of those of us who are participant.

The question raised as to whether the broader UK context might lead us into some issue was developed by my noble friend Lord Brennan. He requires an answer as to how one is going to build confidence in Scotland, as well as in the rest of the UK, in these procedures. That is quite an important part of how this process should develop, because its impact is not restricted inevitably to Scotland; it is part of the whole unitary state that is the UK.

I turn to an issue raised briefly in relation to welfare. The noble and learned Lord, Lord Wallace of Tankerness, raised the question of delivery and responsibility in this area—an entirely sensible approach. I take that as support for the proposition that we should establish a Joint Committee on welfare devolution. The noble Baroness, Lady Liddell of Coatdyke, took this point very much to heart in her intervention, demonstrating the question of the competence of the Scottish Government. She identified this as an issue relating to health, and therefore welfare. Indeed, she took it further to look at, correctly, the issues of education, policing in Scotland and so on, a point echoed by the noble Earl, Lord Kinnoull. I suspect that my noble friend Lord Foulkes is not entirely satisfied with the Scottish Parliament in this regard. Since he participated in it from time to time, he is a substantial witness in relation to how the Scottish Parliament may proceed in its competence. The noble and learned Lord, Lord Hope of Craighead, continued to develop these concerns in relation to how the participants—the Members of the Scottish Parliament—were in a position to fully seize and deal with the new responsibilities that would be coming their way. That question was picked up by a fellow member of the Faculty of Advocates, my noble and learned friend Lord McCluskey. He added the question about SNP competence, but as I understood it he was keen to welcome their presence here as well—presumably on the basis that those who came here would be more competent.

The noble Lord, Lord Sanderson of Bowden, had an interesting suggestion that the Select Committee structure might usefully be brought to the attention of the Scottish Parliament. That echoes the notion that the current committee structure is perhaps not providing the level of scrutiny that one would desire.

The critical issue that has been repeated by many noble Lords is the fiscal framework. This is, of course, the focus of important matters. It has been looked at by both the Economic Affairs Committee and the Constitution Committee. I respectfully suggest that it is clear to anyone that a Bill of the highest constitutional importance deserves wide and full consideration. This House—the very existence of which is justified on its being a revising Chamber—has an especially important position in such constitutional debate. The coherence of the UK as a unitary state is not an irrelevant consideration in that debate.

My noble friend Lord Hollick set out a number of issues where there are real concerns. It is important that we see what the answers to these questions are. Maybe we will have to wait until January next year, but it would be helpful if we had some indication of where the discussion between Her Majesty’s Government and the Scottish Government has been going.

The noble Lord, Lord Kerr of Kinlochard, raised his “three unknowns”, which raise very clear issues—fairness, borrowing powers and future transparency. These are mightily significant issues, on which this House really requires some kind of instruction if it is properly to scrutinise the Bill.

The noble Lord, Lord Griffiths, with his well-known economic expertise, raised the question of Scottish living standards and the way that they may be affected in ways that are not minor. These issues also have to be considered.

The noble Lord, Lord Turnbull, raised the complex question of indexing. Again, this is not something that can be dealt with in a few minutes of discussion. These are complicated issues and some insight into them is, I respectfully suggest, what this House deserves.

The noble Lord, Lord Lang of Monkton, also raised the question of scrutiny and the terms of a memorandum of understanding. Again, some hint might be useful as to where this is going, because these involve deep issues that may be with us for many years. The noble Lord, Lord Kirkwood, is correct that it is important that the Bill be passed before the Scottish election, but it is important that we have some understanding of where we will be, whether it is in January or shortly thereafter.

When he looks at these kinds of issues, the Minister might wish to share with the House, for example, whether an analysis has been offered by the Scottish Government—a considered analysis, one trusts—of the two committees: the Economic Affairs Committee and the Constitution Committee. They have raised important issues; have the Scottish Government discussed them with Her Majesty’s Government? It would be interesting to know whether they see force in these points. Where do they stand on these issues?

[Lord Reid of Cardowan]

I confess that I am neither an advocate nor even a solicitor, which probably excuses my inability to grasp the answer to what is a simple question. The question at the centre of all we have been discussing is the consideration of the Bill, in this House and the House of Commons, without the fiscal framework. That is what has run through every debate. Given that the Scottish Parliament will not consider the generality of the Bill without the fiscal framework and that in July, the Government expressed that it was perfectly feasible to discuss the Bill while externally discussing the framework, why is it not possible to agree, during these discussions with the Scottish Parliament, that we will complete the final stages in parallel with it? That would not be unfair to anyone. It would mean that, since the Scottish Parliament will not consider the final details of the Bill without the framework, we would simultaneously be considering it and the Bill, and doing so in a spirit of concord and agreement. Perhaps as an advocate, as well as a noble and learned Lord, my noble and learned friend will explain why that process would be impossible.

--- Later in debate ---

[Lord Davidson of Glen Clova]

One of the problems one faces as an advocate is being tempted to follow what is put before one by a judge. One is quite often tempted down that road. What my noble friend is putting to me, in a style which is not wholly unfamiliar in the courts, is one such temptation. I would care to deflect it to the Minister. This is not something that the loyal Opposition can put into the discussions between Her Majesty’s Government and the Scottish Government but I respectfully suggest that this interesting proposition from my noble friend Lord Reid be introduced into those discussions.

It is clear that we have to find a mechanism that enables the discussion on this critical area to be slightly widened in its understanding. We have ended up with the Scottish Government’s view not being revealed other than in minutes that do not really set out what has happened. My noble friend Lord Foulkes raised the question of what plan B is. I think we can legitimately assume the answer is that there is no plan B and that negotiations will be successful. That may be reassuring for some people but for others perhaps it will not. My noble friend Lord McAvoy was clear that we simply have to trust Her Majesty’s Government and the Scottish Government to produce a result. It would be helpful if they gave us a basis for developing that confidence.

My noble friend Lady Liddell asked if we might see the minutes and papers. She was joined in that request by the noble Lord, Lord Stephen. These are interesting points but one can understand the competition between the politics of the issue and the scrutiny. It would be helpful if we were given some guidance as to where the balance lies. Scrutiny, after all, is the purpose of this Chamber.

I was just coming to the noble Lord, Lord Forsyth—

[Lord Forsyth of Drumlean]

Might the noble and learned Lord turn his attention to telling us what the Opposition’s position is on whether consideration of this Bill should be delayed so that we are able to consider it with the fiscal framework?

[Lord Davidson of Glen Clova]

The answer that I have just foreshadowed is the question of trust. We are prepared to trust Her Majesty’s Government and the Scottish Government to conduct their negotiations. We would like to have some further basis on which to develop and strengthen that trust, which might even meet some of the requirements of the noble Lord, Lord Forsyth of Drumlean. He looks at me quizzically—

[Lord Forsyth of Drumlean]

I do not know whether that is a yes or a no.

[Lord Davidson of Glen Clova]

One sometimes finds that there are questions that do not have a yes or no answer. The question of trust is something that one might reflect upon and, if that is lost in translation in some way, I would be happy to explain later.

The charge that the noble Lord, Lord Forsyth, has made against the vow is that it reveals a certain degree of illiteracy. Be that as it may, as the noble Lord, Lord Stephen, pointed out, the vow is a fact; it has been acted on and here we are with the consequences of that vow. We can analyse questions of the Barnett formula, which have been discussed in this House over and over again, but perhaps that will not really add very much to the discussion of this Bill.

I am conscious that I am taking rather more time than perhaps—

[Noble Lords]

Oh no!

[Lord Davidson of Glen Clova]

I suspect people are demanding even more but perhaps I might briefly rush through a few points. The noble Lord, Lord Shipley, identified that there had been four Joint Exchequer Committee meetings. The noble Lord, Lord Gordon of Strathblane, suggested that an increase in efficiency of even once a week might develop a bit more immediacy. The noble Lord, Lord Turnbull, agreed with this, and one respectfully has difficulty seeing why things cannot be speeded up—including my speech.

The noble Lord, Lord Lyell, raised the complexity of definitions in tax matters, not least with regard to the Scottish taxpayer. I suspect that we will come back to that in due course because these are critical matters which, when the reality comes home, may involve all sorts of cross-border issues, where already advice has been taken by various parties which wish to alter their jurisdiction.

The question of complexity and difficulty was raised in the context of the airport duty. This was raised by the noble Lord, Lord Shipley, but echoed by the noble Baroness, Lady McIntosh. These are perhaps not the most important issues but they are complicated issues. How does all this fit together? These are areas where we need some guidance.

The question of consensus not always being able to be achieved was identified by the noble Lord, Lord Purvis of Tweed. That is an entirely appropriate way in which to look at these issues.

The noble Lord, Lord Selkirk, had confidence in the process and we may trust that his confidence that the Minister will report to the House is not misplaced. The noble Lord, Lord Sharkey, perhaps did not fully share that confidence but stressed that due consideration was critical in such a constitutional Bill. He suggested that perhaps the Minister might produce some answers in plain English—with which we might all agree.

As I move towards a conclusion—

[Noble Lords]

No!

[Lord Davidson of Glen Clova]

Much obliged. The question of the use of devolved powers vexed a number of noble Lords—quite sensibly so. The issue of how the Scottish Government and the UK Government will operate together in the way in which the Scottish Government use these powers will be a matter of real concern. We shall see how this works, because it will have to work.

My noble friend Lady Liddell evinced her concern about the Olympian—or possibly Olympic—level of griping that may be achieved by the SNP and which may be made manifest. This is a real challenge for the Scottish Government to act in the interests of the people of Scotland—those who live in Scotland and who will have to be governed by a Scottish Government using these new powers.

The noble Earl, Lord Dundee, raised the question of localism. It will be interesting to see whether the Scottish Government are able to lose their centralising impulse and perhaps move towards a more appropriate and modern concept of localism.

The question of a constitutional convention was raised by the noble Baroness, Lady Quin, the noble Lords, Lord Campbell, Lord Kerr and Lord Thomas, and many other noble Lords. This is an attractive proposition which we on this side would encourage.

The suggestion from my noble friend Lord Gordon of Strathblane of an analysis of full fiscal autonomy is, again, a useful contribution to the discussion and, from this side, we would encourage that.

Lest there is any doubt, we on this side support the Bill. We see it as a challenge to the Scottish Government. It is also a challenge to this Government to work sensibly, coherently and perhaps transparently to produce an Act. We are for this Bill.