Examination of Witnesses (Questions 20-39)
RT HON
DES BROWNE
MP, DAVID CAIRNS
MP AND DR
JIM WILDGOOSE
17 JULY 2007
Q20 Mr MacNeil: I am grateful for
that answer. What progress has been made in improving the process
of communication between the two parliaments, especially in respect
of legislative consent motions? May I ask how many times you have
met the First Minister since your elevation to the Scottish Office?
Mr Browne: If you can count a
video conference, then I have met him three times and I have spoken
to him on the phone once over and above that, if I recollect correctly.
As far as what used to be called Sewel motions are concerned,
it seems to me that these are perfectly logical and sensible things
to do and that by and large was the product of this Select Committee's
report; it was the view that it came to. Indeed the Procedure
Committee of the Scottish Parliament looked at the same issue
about 18 months ago and cut away a lot of the myth and misinformation
about it and said that as long as there was a devolved parliament
operating within the structure of the United Kingdom constitution
then these motions made a lot of sense. I was reminded when preparing
for this particular appearance that a piece of legislation relating
to compensation for mesothelioma sufferers was being passed here
at about the time that the Scottish Parliament was going into
recess recently. If there had not been that process then mesothelioma
sufferers in Scotland would have had to wait for months and months
for the consultative process and the legislative process in Scotland
to get through.
Q21 Mr MacNeil: And they had waited
enough already.
Mr Browne: It just seems a silly
thing to do when there was no opposition to that change, particularly
since this dreadful disease kills people a comparatively short
time after it is diagnosed. If as politicians we can find a mechanism
that can address that sort of issue in those circumstances, then
we ought to use it. We should continue to use them and I am sure
that the Scottish Parliament will.
Q22 Mr Wallace: When I was in the
Scottish Parliament, the Scottish National Party had a policy
of voting down Sewel motions. That was there at the time; it may
have changed with the new First Minister. There are several Bills
going through the process or perhaps on the books in future, issues
that may well require more Sewel motions. If that is a continued
policy, is there any other mechanism of getting a Sewel motion
through the Scottish Parliament other than via the Executive?
Mr Browne: In terms of the procedures
of the Scottish Parliament there is of course a procedure whereby
legislation can be instituted by those other than the Executive
itself. However, because of the example that I used earlier and
because of the inquiry by this Committee[2]
and the one in the Scottish Parliament that played a reasonable
role in dispelling some of the myths and recognising that these
motions, whatever you call them now, are a successful tool for
implementing devolution policy and practice, politicians who have
the best interests of their constituents and the people of Scotland
at heart will say this is a reasonable tool. Just as your own
party moved away from consistently voting against timetabling
motions in this House after spending years doing it in a knee-jerk
fashion, the same thing happened in the Scottish Parliament. I
am confident that the Scottish Parliament, in trying to deal with
legislation as it will eventually have to, will find these motions
helpful. There will be provisions that we are enacting here that
the people of Scotland will want applying to them earlier and
will not want to wait for months if not years to get them.
Q23 Mr Davidson: There is an assumption
that if devolution is a process, then automatically further responsibilities
get transferred to the Scottish Parliament. Can I just clarify
whether or not that is your view? In the event that there is an
application for further powers, what criteria should be applied
to judging whether or not those powers are appropriate?
Mr Browne: The same criteria as
have always been applied to that and that is that every set of
circumstances will be looked at on its own merits. The Minister
of State is dealing with a statutory instrument tomorrow which
relates to the issuing of warrants for intercept evidence abroad,
which in this day and age seems a perfectly sensible power to
give Scottish ministers because they have the responsibility for
those who will have to apply those warrants. In terms of our common
desire to ensure that our people are kept safe, then that is a
power that is better exercised by those who have responsibility
for the security forces or the policing forces. From our point
of view it is perfectly logical to use this executive devolution
power that is there in schedule five[3]
of the 1998 Act and was put there for that purpose and to give
it to them. There have been 14 such of these until now and the
fifteenth will be tomorrow. They have all been looked at on a
case by case basis and we will continue to look at them on a case
by case basis and if the merit is there for it, then we will use
that provision in the Act to transfer that power.
Q24 Mr MacNeil: There is talk in Wales
at the moment of a referendum for further powers for the Welsh
Assembly, perhaps even a Welsh Parliament at some point. Would
you be concerned if the powers of the Welsh legislative body were
to leapfrog those of Scotland?
Mr Browne: No. I have to say candidly,
just like most people, whatever the politicians may say, that
the asymmetry of the United Kingdom constitution has never really
bothered me all that much. I spent most of my formative years
in politics in an environment where a comparatively small number
of people, whom very few people in Scotland voted for, regularly
imposed changes in the law and changes in the way in which we
lived without any recourse to the Scottish people. We addressed
that particular issue with the Scottish Parliament and that is
to the advantage of the United Kingdom. If the people of Wales
find themselves the other side of a devolution with something
which is slightly different from the people of Scotland then it
will just replicate the current situation which is that they have
a different form of devolution from the people of Scotland. The
people of Northern Ireland, where I was a minister, have a different
form of devolution too. That is part of the beauty of the United
Kingdom. It is part of what keeps us together; not part of what
divides us but part of what keeps us together. What we have just
been talking about, the ability of this Parliament to make changes
in the law down here to reflect things that the Scottish Parliament
do and vice-versa, is part of that unity. I celebrate it, I think
it is a great thing and we ought to adopt a practical attitude
towards it. To be honest with you I do not actually see devolution
as being a process. Devolution in Scotland was an event rather
than a process
Q25 Mr MacNeil: Is it an event or
a process in Wales?
Mr Browne: What it is in Wales
is a matter for the Welsh people in the context of their relationship
with the Union. This executive devolution is part of the Act and
making the Act work is what it is about. Frankly, with respect,
we should stop worrying about the processes and start thinking
about the delivery of services.
Q26 Mr MacNeil: Are you setting bounds
on the development of Scotland or trying to set bounds on the
development of Scotland?
Mr Browne: I am doing nothing
of the sort. I am a total democrat. I am recognising that in the
last expression of the view of the people of Scotland about two
thirds of those who voted said they wanted to stay in the Union
and I am recognising that.
Q27 Mr MacNeil: Should the people
of Scotland be consulted as to whether it is a process or an event?
Mr Browne: They were.
Q28 Mr MacNeil: At the time they
were told it was a process and now you are saying it is an event.
Mr Browne: They told us what they
wanted and we now need to get on and deal with it. Your party
gives them an opportunity every time there is an election in Scotland
to be consulted about this very issue and every time the people
of Scotland tell you they want to stay in the Union.
Q29 Mr Wallace: I want to talk about
keeping the Union in a sense. One of the functions of the Secretary
of State is effectively to police the devolution settlement so
that my nationalist colleagues do not pick away at it or push
the boundaries. Inevitably it would not be a disservice to the
Scottish National Party to say that they will always push the
boundaries because it is their stated aim to be a separatist party
in the United Kingdom. One of the powers in section 35 of the
Scotland Act is to issue Orders should the Scottish Parliament
operate ultra vires. Are you happy that recently the Scottish
National Party's First Minister pledged a quarter of a million
pounds to Darfur? Do you think that is within the scope of the
devolution settlement?
Mr Browne: Since this is an issue
that you are not coming to for the first time, you probably know
what the answer is. It is very specifically, if I recollect correctly,
that sub-paragraph 7.2 of part 1 of schedule 5 of the Act, sets
out the legal basis for the Scottish Executive assisting the UK
Ministers in relation to foreign affairs, including international
development. If you want to check, I think you will probably find
that is right. Because of that and because of the desire of the
Scottish Executive to assist in that regard in relation to Malawi
there was a formal agreement with the Department for International
Development. In relation to the specific grant which was made
to the Scottish Catholic International Aid Fund for the work they
do in Darfur, there are two possibilities. One is that this money
was given to a Scottish charity based in Scotland and may well
be intra vires in any event in that regard, though I do
not want to go into all of that. In any event my understanding
is that DFID are aware of this through the established procedures
set up to inform them of projects funded through the Executive's
international development fund, so it does not fall outwith what
is a recognised procedure and keeps it within the provisions of
the Act. Finally I just want to say to you that you use the verb
"to police". I do not see really myself as a policeman.
It is my responsibility to ensure that people operate within the
agreed parameters which Parliament empowered them to do and I
shall continue to do that.
Q30 Mr Wallace: It is fortuitous
that you know so much about the settlement. What is curious about
the section seven part of the schedule is that if you examine
the explanatory notes which came along with the Act—the
Government's explanatory notes not mine—they are quite clear
about assisting ministers of the Crown. You could of course argue
perhaps that Malawi was "assisting" but, having gone
through the Freedom of Information request, the Secretary of State
for International Development did not actually request assistance.
It was not that way round, it came the other way and it is interesting
that even in the Malawi issue I have yet to see any formal request
from DFID for assistance. That aside, if you actually look at
the definition in the explanatory notes, it says on page 196,
which I am sure you know well because you managed to know the
sections well enough, that this enables Scottish ministers to
assist the UK Government in the conduct of international relations
so far as relating to devolved matters. The definition of "devolved
matters" even in this Act or any other Act is not international
development or trade. The explanatory notes seem to contradict
the reason as set out in the Act to say you can assist us because
it is designed to assist when it is relating to devolved matters
such as a negotiation in the European Union on home affairs which
would be devolved or some of the fisheries element, the administration
of fisheries, which would be devolved. It is not designed for
assisting on matters which are reserved. Is that changing the
goalposts?
Mr Browne: This is shaping up
to be a discussion which would perhaps be better done at the other
end of this corridor before the House of Lords as the Appellate
Committee. We are getting into statutory interpretation here.
The danger is that I will seek to match your attempt to bring
in statutory interpretation and become a lawyer here for two or
three minutes. The fact of the matter is that these explanatory
notes are helpful but at the end of the day we have to look at
what Parliament enacted because it did not enact the explanatory
notes. In my view what Parliament enacted, and this has been the
accepted interpretation whether it thought it was or not, allows
the Scottish Executive to act in this way and we have constructed
an agreement between the Department for International Development
and the Scottish Executive to allow it to happen and as long as
people stay within that then that is my responsibility to ensure
that people are staying within the parameters of the Act and the
agreements that come from it and that is what is happening. We
could discuss whether they should have developed or not but at
the end of the day, from the point of view of whether it is a
good thing to do, if the people of Scotland in the devolved area
want, through their representatives, to give up some money to
some of the poorest people in the world, none of us is going to
be complaining too much about that.
Q31 Mr Wallace: It is pretty shameful
to hide behind this subject: because we are helping people in
a third world country we should not challenge it. The reality
is that we have DFID which has had a significantly capable minister
previously in Hilary Benn who managed to do very well and the
UK Government's tax revenue is to administer that. This is not
about undermining help for people in Malawi or Darfur or anywhere
else. If I am not mistaken, it is your party in your Government
that wrote the explanatory notes. It was not a previous party;
it was your party, your Government, who came up with this. To
now say that things are different ... It would have been nice
to know that the leeway the Scotland Office is giving to the devolution
settlement is a little larger than it was originally. If that
is a policy shift, it would be nice to see whether there was any
evidence. Has there been a request from a UK Crown Minister for
assistance to Darfur? Has there been a request before that money
was sent? If there has not, then even that section does not come
into play. I am not a lawyer but I certainly know that the nature
of political institutions will be to chip away at the settlement
they have and if no-one takes responsibility where could we end
up? On my left is the Scottish National Party whose clearly stated
aim is the undermining of the United Kingdom. That is fine for
them. They are honest about it but we are now hiding behind a
shield because it is foreign aid to people in Africa. That is
not the right way to go about ensuring a secure, strong, transparent
union.
Mr Browne: I suspect frankly that
I am never going to satisfy you on this subject. I do not think
that this example, and this is broadly the only example there
is, undermines the devolution settlement. The reason I do not
think it undermines the devolution settlement, nor do I think
it is "chipping away" is because of the nature of the
support and because of the way it fits within the particular provision
of the Act and because of the fact that there was full consultation
and agreement to allow this to happen. I do not want to hide behind
anything but you brought all these details into the discussion.
I would have thought it arguable that even on the explanatory
notes the areas where people have sought to help could be considered
to be devolved areas in health and education and others. I do
not want to get into those sorts of discussions. There is a provision
in the Act which allows this assistance whether it is asked for
or not. The Scottish Executive chose to offer that assistance,
it was accepted by the Bank for International Development, there
is an agreement between them and the agreement is a reflection
of the provisions of the Act not a chipping-away. People carry
on doing it with comparatively modest amounts of money and it
does not have the implications in relation to the constitutional
settlement that you suggest that it does.
Q32 Mr Davidson: May I move on to
different areas of the work of the Scotland Office? We are reserving
the right to come back to the local government elections once
Ron Gould's report is out but one of the things your Report indicates
is that "Ministers plan to press ahead with securing higher
voter registration levels". May I ask how vigorously that
is going to be done? The fear of many of us, particularly in urban
areas, is that the under-registration of many voters will result
in the under-financing of urban local authorities and that it
complements the general bias that there has been in Scotland recently
against urban areas. How vigorously will this be pursued and what
money will be devoted to it?
Mr Browne: It will be pursued
as vigorously as our resources and our capability and capacity
allow. This is an area of responsibility that we have but there
are others out there, such as the Electoral Commission, who have
responsibilities, other people who have resources which we can
bring to bear. A number of provisions of the Electoral Administration
Act 2006 are identified in the Report which we have responsibility
for bringing in, including personal identifiers for absent votes
so that impersonation is interdicted and aspects of the access
and supply of electoral documents post election and various others.
We will need to turn our attention to delivering these. We are
starting at this stage to consider how we can work more closely
with electoral registration officers on this very issue, increasing
the level of registration. The Minister of State has already written
to electoral registration officers to get their views on how we
can take this forward. They should know their own localities and
when we get their views we can take this forward and then we shall
be in a position to set out the work that we should do. I come
to this job with at least the experience of having responsibility
for this area for two years in Northern Ireland where securing
registration was quite a significant challenge. I shall bring
that experience to bear on it.
Q33 Mr Davidson: The problem in Northern
Ireland was more one of people voting twice rather than not voting
at all.
Mr Browne: There was an under-registration
issue as well. There was an over-registration issue for some people,
but there was an under-registration issue too.
Q34 Mr Davidson: Do you have a target
by which you hope to increase the present levels of registration
to try to eliminate under-registration? Would 10% be an appropriate
figure?
Mr Browne: It may well be an appropriate
figure, but at the moment we do not have a target. At the moment
we are scoping this in consultation with the electoral registration
officers and perhaps consultation with Members of Parliament may
be a good idea as well and other elected people. The earliest
scheduled parliamentary elections are those for the European Parliament
in 2009 so we have some time.
Q35 Mr Davidson: Not necessarily.
Mr Browne: The earliest "scheduled".
We have space to take forward these measures and the associated
planning and the training that will be required to put them into
effect. This process of securing registration has to be a rolling
process to ensure that those entitled to vote who come are registered.
I say to you and other Members that if you have suggestions to
make as we take this forward then you should let us know what
they are because at the moment we are scoping this and planning
what we need to do. We are well aware of the scale of the challenge.
In our individual constituencies we are all aware that we have
lost people from the register.
Q36 Mr Davidson: The next point I
have been asked to make is that this Committee is having a look
at poverty in Scotland. What is your response to the recently
published research saying that in the May 2007 elections the greater
the degree of social deprivation the higher the rate of rejected
and spoiled ballots?
Mr Browne: I may defer to the
Minister of State on this issue because I have to be absolutely
honest that I have not looked at that in any detail. I know it
will be an important area for the Committee and indeed for my
responsibilities but there is a review going on at the moment
and it will shortly report and then I will have to get down to
this in some detail. Maybe David has some view on that particular
piece of research.
Mr Cairns: I would not overplay
the nature of the research to which you refer; it is simply looking
at raw numbers and comparing those with areas of poverty. Yes,
it is true that there are higher levels of spoiled ballot papers
in urban areas and there is often lower turnout in those areas
and lower educational attainment and all the rest of it. I would
see this as a symptom of a bigger problem rather than a specific
problem in itself. It is probably best on all these issue to wait
for just a few weeks until Ron Gould brings out his report and
then return to this issue. At the moment there is a range of factors
which possibly lie behind the reasons for the instances of spoiled
ballot papers and it is his job to examine each of these factors
in turn and perhaps give us a steer as to which factors played
more heavily as the reason for spoiled ballot papers. We are aware
of the research you mentioned and we have had a look at it. It
frankly does not tell you anything which you could not have worked
out yourselves with a prima facie glance at it.
Q37 Mr MacNeil: Last year the Secretary
of State told us that there are no powers for the UK to impose
nuclear power plants against the wishes of the Scottish Executive.
Indeed, as you know, the Scottish Parliament has independent control
of planning in Scotland. Will the Westminster Government respect
that independence if the Scottish Parliament refuses planning
permission for new nuclear power stations? Is it still the position
that they will respect the independence of the Scottish Parliament?
Mr Browne: We devolved planning
to the Scottish Parliament and have every intention of respecting
that devolution.
Q38 Mr Davidson: If the powers to
refuse planning result in a collapse of adequate provision of
power within Scotland how will the consequences be handled?
Mr Cairns: It is not just pure
planning powers which prevent nuclear power stations going ahead
against the wishes of the Scottish Executive; they also have powers
under section 36 of the Electricity Act for any significant large
electricity generator. They have to accept their responsibility
under section 36 and under the devolved powers in the Electricity
Act. I have said before that the Scottish Executive faces the
same challenge as the UK Government: how do we provide the energy
that our people need without wrecking the planet in the process?
The powers which have been devolved to the Scottish Executive
are not just about planning issues but broader issues about electricity
generation in a wider context.
Q39 Mr Davidson: With respect, that
is slightly different. They have a power to block but not a responsibility
to provide. What happens if, by blocking either nuclear power
or as a result of local initiatives blocking wind farms or what
have you, the result is a net deficiency of power in Scotland?
Is there an equivalent responsibility to make power available?
If not, what happens if there is a net deficit in Scotland?
Mr Cairns: You quite rightly point
out that energy policy is reserved to the UK so we have set out
the energy policy that we think is appropriate for the whole of
the United Kingdom. Within that it would be a very foolish politician
either here or at Holyrood who deliberately pursued policies they
knew were going to result in the lights going out. I do not envisage
that actually being the case and it would still be possible for
Scottish consumers to import electricity generated in England.
It is not necessarily a case of the lights going out or that deficiency
because Scotland is part of a single energy market and the better
regulations which cover the whole of the United Kingdom. The question
is whether it would be a sensible and desirable situation for
Scotland to go from a situation now where it is a net exporter
of energy to a position of being a net importer of electricity
and that is a policy choice that the Executive and Government
can make. The situation of a collapse in Scotland's energy requirements
would not come about because we would still be able to import
energy in from the rest of the UK.
2 The Sewel Convention: the Westminster perspective.
Scottish Affairs Committee, Fourth Report of Session 2005-06.
HC 983 and Government Response to the Report HC 1634. Back
3
Note by witness: "schedule five" should read "section
63" Back
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