Previous Section Back to Table of Contents Lords Hansard Home Page

Noble Lords: Order!

Lord Beloff: My Lords, in view of the noble Lord's emphasis on the importance of the popular wish for measures of devolution, why is it that the English people should have no vote in a referendum of that kind?

Lord Irvine of Lairg: My Lords, that is perhaps as absurd a contribution to the argument as one could conceive of. The purpose of a referendum for Scotland is to test demand for devolution in Scotland. It is not a serious proposition that there is a demand in England for Scottish devolution. That is why the proposition is absurd.

Lord Strathclyde: My Lords, perhaps I may put a slightly easier question to the noble Lord. He made much of the fact that the Labour Party will be campaigning for a "Yes" vote in the referendum. But there are two questions. Will the noble Lord be campaigning for a tax-raising assembly for Scotland--a tartan tax--yes or no?

Lord Irvine of Lairg: My Lords, in the second part of the referendum we shall certainly be campaigning strongly in favour of a tax-raising power, or a tax lowering power; that is to say, a tax varying power of up to 3p in the pound.

I shall resume. We support the Union. We oppose separatism. If we believed that devolution would lead to the break-up of the Union, we would not support it. On

3 Jul 1996 : Column 1460

the contrary, not only is devolution right in itself for Scotland; it is a necessary bulwark against separatism. It is to that truth that the party opposite is so blind. It is we who are on the effective side of maintaining the security of the Union.

I return to incorporation of the European Convention. In the debate in this House which I was able to open on 5th June about the judiciary and the separation of powers, I expressed my confidence in the political impartiality of the judiciary; paid tribute to the high quality of judicial review; and stated my personal hostility to any legislative attempt to restrict judicial review, which directly promotes the rule of law.

Now I take the opportunity of this debate to record my conviction, contrary to that of the noble and learned Lord on the Woolsack, that the incorporation of the European convention into English law is long overdue. The Attlee Government of the post-war years took the lead in promoting the convention. We were the first state to ratify it, on 8th March 1951. But Britain is virtually alone among the major nations of Western Europe in failing to give its citizens a direct means of asserting their convention rights through their national courts. Britain has the reputation in Europe of being one of the most consistent transgressors of human rights in the Council of Europe.

The Prime Minister tells us that,

    "we have no need of a Bill of Rights because we have freedom".
But how can our rights and liberties be so well protected under our law when we have so dismal a record of failure in the Court of Human Rights in Strasbourg?

The Labour Party in government will incorporate the European convention into domestic law.

I agree with what the noble and learned Lord, Lord Hailsham, said to the Select Committee considering Lord Wade's Bill of Rights in 1976:

    "A radical overhaul of our Constitutional arrangements, a Bill of Rights entrenching the European Convention is a modest, but desirable, addition to the armament of liberty against populist of bureaucratic intrusion and oppression".
If we incorporate the convention, then its protections can be relied on in our courts by the citizen against the state. Our citizens, unlike the citizens of almost every other European country, have no such rights. Our country is bound by the convention. Our citizens are entitled to its protections. But to win them they have to go to a foreign court in Strasbourg, and that can take five years and often more. Why do we not trust our own judges to secure our convention rights for us but confine our citizens to the foreign court in Strasbourg?

We have a judiciary of high quality. Our most senior judges are as fine as any in the world. What a loss it is to the development of European jurisprudence in human rights that our judges are disabled from making a British contribution. We should be leading the development of human rights in Europe. Incorporation would repatriate from Strasbourg to Britain the day-to-day enjoyment of the rights to which our citizens are entitled under the convention.

I do not begin to accept that parliamentary sovereignty would be infringed by incorporation. Incorporation would be an exercise in sovereignty.

3 Jul 1996 : Column 1461

Parliament would retain the right to repeal or amend the incorporating statute. Parliamentary sovereignty could be maintained by requiring that any statute intended to be inconsistent with the convention should say so expressly.

Another mechanism, which applies in New Zealand, obliges the courts, so far as possible, to interpret statutes and apply the common law so as to conform to the convention. It is not beyond our wit both to preserve parliamentary sovereignty and to allow our citizens access to their own courts to secure their rights under the convention.

A large part of the malaise that grips our country stems from a profound disillusion with its system of government. This Government are not trusted. Ministerial explanations are met with the deepest cynicism. A culture of secrecy flourishes. We have no freedom of information Act. Question Time in the other place is not question time; it is "No Answer Time". Citizens are denied in our courts basic rights against the state which are commonplace in the rest of Europe. Our institutions of government are not truly representative of those they are intended to serve. Quangos are a travesty of democracy.

Under the party opposite central government has become as autocratic as it is remote. There is urgent need for devolution of power from the centre to Scotland, to Wales, to the regions and to local communities. A major shift in the balance of power from the state in favour of the citizen is a high priority. "New Labour, New Danger" is a slogan that will convince no one--because the country has given up on this Government.

There are many powerful reasons why the country will return a Labour Government at the next Election. Not the least of these is that a Labour Government will fashion a new constitutional settlement which will return power to the people.

4 p.m.

Lord Jenkins of Hillhead: My Lords, I cannot refrain from initially congratulating the noble Lord, Lord Irvine, on one of the most powerful debating speeches I have heard in this House. I join with him in saying how much we look forward to hearing the maiden speech of the noble and learned Lord, Lord Bingham.

As the Leader of the House knows, the choice of these two days for the debate presents me with very great difficulty. Indeed, he was kind enough to try, although unsuccessfully, to avoid these dates. As a result, I have an apology to make to the House in that, quite contrary to my usual habit, I shall not be able to stay for the rest of the debate. I hope that on this occasion I may be forgiven for my exceptional lapse from what is a very good custom of your Lordships' House.

The genesis of this long two-day debate, suddenly spatchcocked into our timetable at a very busy time of the Session, I find interesting. The Prime Minister suddenly announced that he was to make a great

3 Jul 1996 : Column 1462

constitutional speech. There was heavy briefing that this would set the tone for an onslaught on the Opposition proposals, which he saw as one of the most promising ploys for the General Election. To this end, your Lordships' House is told to play a supporting role, so we are here with this interesting but unasked for debate. It is not a very dignified role. If there is one thing worse than being Lord Balfour's poodle, it is to be Mr. Major's poodle.

Therefore, the genesis of this debate is essentially political and polemic. That is a pity, for my instinctive feeling is to seek consensus on constitutional matters. Apart from anything else, once changes are made they are practically never reversible. That makes it desirable that they should not leave too many jagged edges. Such consensus is sometimes unobtainable, as was most notably the case in the first Parliament Act, even though that was only eventually carried with the help of a considerable number of Conservative Peers. The absence of consensus should not be an excuse for avoiding necessary and overdue action. Consensus sometimes cannot be reached, but it often is, as in many of the franchise extensions of the 19th century on Life Peers. However, it will not be reached without being sought, and it cannot be effectively sought on the basis of a blank resistance to all constitutional change which now seems to be untypically and unhistorically the position of the Conservative Party.

I come to devolution, with which the Lord Chancellor dealt this afternoon with his usual lucid authority, although not, I thought, quite with his usual constructiveness. In the 1970s I was a rather slow convert to devolution. I then thought that the scheme which ultimately emerged was flawed in several respects, mainly because it was too much directed to saving Labour seats in Scotland and not enough to working out a proper theoretical basis for limited self-government for Scotland. These views were reinforced by the five years which I surprisingly spent as a Member of Parliament for the Hillhead division of Glasgow, one of the most notable and also one of the most outward-looking constituencies in Scotland.

The flaws have been quite considerably corrected in what is now proposed, but they included the absence of any proposal for proportional representation which led, I have no doubt, to a very lively fear in the east of Scotland of domination by the Strathclyde caucus. Next, there was a dislike of judicial review which led to the Secretary of State being given a dangerous role, not as a midwife, but as an arbiter for the future. The lack of adequate powers, particularly in the economic field for the assembly, was also a flaw. I believe that tax-raising powers are right and necessary.

The point where I would draw the line is a different one. It would be against the assembly being empowered to run a budget deficit, because I believe that if it is allowed to do that, then one is on a road which may lead to a separate currency. I do not wish to create a new currency union at the price of building up an existing and longstanding currency union. I am certainly dedicated, as is the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Irvine, to the

3 Jul 1996 : Column 1463

preservation of the essence of the Union between England and Scotland. I am strongly opposed to reservation.

However, my Scottish experience strengthens my view that there is in Scotland a settled desire for greater control over its own affairs. This desire has perhaps been heightened by the fact that for 17 years, moving towards 18 years, what is in Scotland a small minority party has controlled the government of the United Kingdom. It has not been assuaged by the fact that, in my experience, successive Secretaries of State for Scotland have set a pattern of partisan patronage which would not have disgraced Dundas in the late eighteenth century. I believe that this feeling has exacerbated but not created the desire for greater Scottish control over their own affairs.

That is not to pretend that devolution is an easy question. Indeed, it bristles with difficulties.

The West Lothian question is one to which there is no wholly satisfactory answer. That is vividly illustrated by the treatment of roughly the same issue in the two failed Home Rule Bills for Ireland of 1886 and 1893. In the first Bill, the 1886 Bill, Irish Members were originally excluded from the Westminster Parliament but after several months of argument the Government shifted their position back to their inclusion for imperial purposes only. That was also in the first draft of the 1893 Bill. But the line between what was and what was not an imperial question proved so difficult to define that at the Committee stage the Government changed their mind again and went back to a position in which Irish members would be able to vote on anything.

Lurking behind the West Lothian question there is also what might be called the Kilbrandon question relating to the nearly 25 per cent. over-representation of Scotland at Westminster. The maintenance of that would, I think, be difficult to justify with effective devolution to Scotland.

So there are plenty of complications. But I do not believe that they begin to rival the dangers which would be involved in defying a settled wish of the majority of the Scottish people and once again disappointing hopes which have been legitimately raised.

I do not believe that Scottish and Irish parallels should be pushed too far. The degree of integration of Scotland with England is far greater than was ever the case with Ireland. To take the political level alone, nearly half of the British Prime Ministers of this century have had strong Scottish connections. It looks as though the next Labour Cabinet--if and when it is elected--will find it quite convenient to emulate the example of the Lloyd George Cabinet in 1921 and meet in the Inverness Town Hall.

Nevertheless, it is relevant to remember that there were few more tragically misplaced votes in your Lordships' House than that which produced the unprecedented majority of 419 to 41 to throw out on Second Reading the second Home Rule Bill. With that vote perished the hope of reconciling Ireland to the British connection. It was another 28 fatal years before this House reversed, in 1921, its disastrous 1893 decision. Whether wisdom or unwisdom

3 Jul 1996 : Column 1464

prevailed, I do not see a repetition of that in Scotland--a repetition of the tragedy of Ireland's past 50 years under British rule. But it is an experience which we would be foolish not to have at the back of our minds.

Recalling the 1893 vote moves me for a very few minutes to the second main subject in these two days of debate, the reform of your Lordships' House. That has long been a difficult and elusive matter. I do not underestimate the disadvantages and dangers of turning this House into nothing but the biggest quango of the lot, with membership almost wholly at the disposal of the Prime Minister of the day with a few sops for other party leaders.

However, what I cannot begin to accept is the current Conservative doctrine that any attempt to restrain the right to sit and vote of hereditary Peers is an unheard of innovation, a constitutional monstrosity, a sign of barbarians at the gate and an undermining of the defences of the monarchy. It has been widely recognised for a hundred years that the composition of your Lordships' House is theoretically indefensible. That could hardly be more vividly illustrated than by the fact that the survival of this House has only been made possible by absenteeism. If the cohorts of hereditary Conservative Peers were to turn up every afternoon and troop into the Tory Lobby, as they did on that unfortunate September day in 1893 and as they have occasionally done since, the problems of the Chief Whip might be fewer but the House would never survive. They also serve who only stay away.

But one cannot found a defence of principle upon absenteeism. That has been recognised throughout this century. Lord Newton in 1907 wanted to eliminate three-quarters of the hereditary Peers. He was supported by the Dukes of Devonshire and Northumberland who, presumably, thought that they would be in the quarter and not the three-quarters, and by the Archbishop of Canterbury. Lord Rosebery in 1910 wanted it accepted that the position of an hereditary peerage no longer gave the right to sit and vote. Lord Lansdowne, as Conservative Leader, in 1911 wanted the number of hereditaries brought down to 150. In 1933, that notorious revolutionary, the fourth Marquess of Salisbury, the great-grandfather of the Leader of the House, had another go at the same restriction to 150. In 1967-68 the noble Lord, Lord Carrington, and the noble Earl, Lord Jellicoe, together with Mr. Iain MacLeod, agreed to an all-party scheme by which existing hereditaries would lose the right to vote and their successors the right to sit.

That long chronical may, on the one hand, be taken as evidence that reforming the Lords is about as difficult as grasping an eel. On the other hand, it exposes the farce of the modern Conservative Party treating the invasion of the hereditary principle as a dastardly depredation. I find it increasingly difficult to understand the perverse dichotomy by which this Government threaten so many established institutions which work well--from HMSO to the Post Office to Civil Service recruitment to the BBC World Service--and, on the other hand, recoil in mock horror from any change to

3 Jul 1996 : Column 1465

our constitutional arrangements which in many ways, after a long period of near inability, have come to work badly and are widely perceived so to do.

4.17 p.m.

Lord Bingham of Cornhill: My Lords, I hope I may be permitted to preface my observations, brief and uncontroversial as they will be, by expressing my thanks to your Lordships for the warmth of the welcome that I have received both at my introduction a week ago and since. It is a matter of universal regret that the occasion should have arisen for the appointment of a new Lord Chief Justice to succeed the noble and learned Lord, Lord Taylor of Gosforth. No one is more acutely aware of that than I. But your Lordships' sense of loss has not in any way diluted or masked the friendly reception which has been accorded to me and for that I am most sincerely grateful.

The noble Lords who have already spoken have touched on matters of fundamental importance to our nation and people. These are deep and turbulent waters into which only powerful and experienced swimmers are wise to venture. Your Lordships will, I hope, understand if I myself linger in a modest and maidenly manner in the shallow end.

There is just one issue upon which, with your Lordships' leave, I wish to touch; that is, the constitutional relationship between the British courts, the European Court of Human Rights in Strasbourg and the current status of the European convention in our courts. I raise that topic not to argue any case, but to record where, as I understand, we now are on the principle that it is desirable to know where one is before deciding where, if anywhere, one wishes to go.

The starting point is, of course, that we are a state that ratified the convention; we are bound in international law to honour the obligations which we have undertaken. When any breach of the convention has been established on the part of any public authority, we are bound to amend our laws and procedures to make good the breach and prevent a recurrence. That is an obligation which has, I believe, been scrupulously observed by successive governments of both political colours.

But the convention is not part of our domestic law. The courts have no powers to enforce convention rights directly. If domestic legislation plainly conflicts with the enforcement of the convention, then the courts apply the domestic legislation. That is a principle which your Lordships' House, sitting judicially, has unambiguously laid down and it is a rule which the courts have loyally observed, despite ingenious and persistent invitations by counsel to depart from it.

In some countries treaties, once ratified, have the force of law. That is not so here and it is that fact which gives continuing vitality to the debate on incorporation. It might be thought to follow from that that the convention is a matter for Parliament and the Government, with which the courts have nothing whatever to do. But that, I suggest, would not be entirely right and I hope that your Lordships will permit me to

3 Jul 1996 : Column 1466

touch briefly on six respects in which I suggest the convention can, and in practice does, have an influence in our domestic proceedings.

First, as the noble and learned Lord the Lord Chancellor observed, where a United Kingdom statute is capable of two interpretations, one consistent with the convention and one inconsistent, then the courts will presume that Parliament intended to legislate in conformity with the convention and not in conflict with it. In other words, the courts will presume that Parliament did not intend to legislate in violation of international law. That may be thought by your Lordships to be a modest presumption.

Secondly, if the common law is uncertain, unclear or incomplete, the courts have to make a choice; they cannot abdicate their power of decision. In declaring what the law is, they will rule, wherever possible, in a manner which conforms with the convention and does not conflict with it. Any other course would be futile since a rule laid down in defiance of the convention would be likely to prove short-lived.

There is, of course, one field--freedom of expression--in which respected Members of this House have declared that they see no inconsistency between the common law and the convention. That is reassuring; it is also wholly unsurprising since we have a long record as a pioneer in the field of freedom of expression. But it means that the courts are encouraged to look to the convention and the jurisprudence of the European Court of Human Rights when resolving problems on the common law.

Thirdly, when the courts are called upon to construe a domestic statute enacted to fulfil a convention obligation, the courts will ordinarily assume that the statute was intended to be effective to that end. That is mere common sense, but common sense is the stock-in-trade of much judicial decision-making.

Fourthly, where the courts have a discretion to exercise--that is, they can act in one way or another, one of which violates the convention and the other of which does not--they seek to act in a way which does not violate the convention. That again is usually common sense and requires no elaboration. However, it is not an invariable rule and your Lordships' House, sitting judicially, gave an important judgment only yesterday in which the convention right to privacy was held to be obliged to give way to the greater interests of justice.

Fifthly, when, as sometimes happens, the courts are called upon to decide what, in a given situation, public policy demands, it has been held to be legitimate that we shall have regard to our international obligations enshrined in the convention as a source of guidance on what British public policy requires.

Sixthly and lastly, matters covered by the law of the European Community--that is, the law administered by the European Court of Justice in Luxembourg and not Strasbourg--on occasion give effect to matters covered by convention law. The Court of Justice takes the view that on matters subject to Community law, the law common to the member states is part of the law which applies. All member states are parties to the convention

3 Jul 1996 : Column 1467

and it so happens from time to time that laws derived from the convention are incorporated as part of the law of the Community. That of course is a law which the courts in this country must apply since we are bound by Act of Parliament to do so, and that is a means by which, indirectly, convention rights find their way into domestic law.

Your Lordships will be relieved to know that no sudden access of imagination or invention has led to multiplication of my six points. I am grateful for the courtesy with which your Lordships listened to me. My only regret is that business elsewhere prevents me from hearing all the weighty contributions which will undoubtedly be made before this two-day debate is concluded.

4.28 p.m.

Lord Campbell of Croy: My Lords, it is a pleasure for me to congratulate the noble and learned Lord, Lord Bingham of Cornhill, the Lord Chief Justice, on his maiden speech. I do so on behalf of the Whole House. Until recently he has been Master of the Rolls and before that he held with distinction other high judicial appointments. He speaks to us with authority, great experience and wit. We will look forward keenly to hearing him again on future occasions.

I thank my noble and learned friend the Lord Chancellor for his introduction to the debate. On 4th July last year we had a debate in your Lordships' House about the government of Scotland, initiated by the noble Lady, Lady Saltoun. On that occasion I pointed out problems and defects in the Labour Party's proposals as they then were. I intend to go on from that and comment on them as they appear today.

I still find the intention to pass legislation in the first Session, if a Labour Government were in office, to establish a parliament in Scotland, strange and lacking in credibility. It took a Labour Government from 1975 to 1979 to produce the Scotland Act--four years to produce an Act which contained serious defects and which many thought would be unworkable. That process included a White Paper, revised three times; a Scotland and Wales Bill introduced into Parliament and then withdrawn, and the Scotland Bill, whose passage through both Houses consumed much parliamentary time. Memories seem to be short and the cast has changed. Most of the Labour Party leaders of today were not involved in that long process. How can a workable, stable, new system of parliamentary governance be produced and taken through Parliament in a single Session, preceded, according to last week's announcement, by one or perhaps two referendums? It is impossible to carry out a thorough job in that time and to produce an effective new parliament functioning alongside the United Kingdom Parliament and working compatibly with it.

During those four years, 1975 to 1979, I was dealing continuously with all the stages--White Papers, debates and Bills on this subject--in this House from the Opposition Front Bench. Although that was 20 years' ago I remember clearly the course of events; the changes and withdrawals of proposals; the twists and turns and

3 Jul 1996 : Column 1468

the final eclipse of the Scotland Act in the referendum. I was always positive in examining the proposals, but I did have the duty of pointing out the flaws, some of which the noble Lord, Lord Jenkins, admitted today in his speech. However, I must take up the assertion in his speech in strong terms that all Conservative Secretaries of State have indulged in blatant patronage in their appointments. With modesty, I speak as the longest-living former Secretary of State. I certainly appointed many with other political views. I repudiate that assertion where I am concerned and I challenge any evidence to be produced to the contrary concerning the four years when I was Secretary of State.

The Scotland Act 1978, which would have established an assembly with defined, limited powers, had two major defects. It had not solved the West Lothian problem. I remind your Lordships that Scottish MPs at Westminster would have discussed and voted on English and UK subjects, but English MPs could not have dealt with the equivalent Scottish subjects. Further--and this is sometimes overlooked although it was disagreeable for Scottish MPs at Westminster--Scottish MPs could not deal with a wide range of Scottish subjects at Westminster affecting their Scottish constituencies. They were subjects such as housing, health and education, which their constituents felt strongly about and wanted them to act upon. The only attempt to solve the problem in the Scotland Act was a clumsy arrangement in Section 66 for a 14-day moratorium after Second Reading at Westminster, to enable consultation, second thoughts and a further division to take place, if needed. To any parliamentarian who has spent several years in the Commons, that was a ludicrous, cosmetic way of addressing a crucial constitutional issue.

The Royal Commission on the Constitution, chaired first by Lord Crowther and then, after he died, by Lord Kilbrandon, after four-and-a-half years of inquiry, suggested that, if a Scottish assembly were to be established, the number of Scottish seats at Westminster should be reduced. That seems a possible fruitful area in which to look if a solution is to be found to the West Lothian anomaly. It has to be acceptable, however, both north and south of the Border.

A precedent was set in the 1920 Settlement in Northern Ireland establishing the mini-Parliament there in the arrangements for the partition of Ireland. Fewer Ulster MPs at Westminster were prescribed deliberately than would have been the entitlement on the basis of population. Instead of 17 Members of Parliament (the entitlement) there were 12, not counting the university seat which was later abolished.

Looking at Scotland now, there are 72 Scottish seats: on a population basis compared with England, there would be about 56. If the ratio used in 1920 in Northern Ireland of 12 to 17 were applied, the number of MPs for Scotland at Westminster would be 39 instead of today's 72. This reduction in the number of MPs representing Scotland would no doubt be opposed for several good reasons. However, it is most unlikely in any case that a Labour Government would initiate it because at present Labour holds a large number of Scottish seats.

3 Jul 1996 : Column 1469

The second major defect in the Scotland Act 1978 was the division of executive powers. The Secretary of State was to retain more than half of his existing functions while the assembly was to create an executive of its own to exercise the other functions. That was a formula for ambiguity and strife. It would have created an arena for conflict and mismanagement, with two executives trying to administer Scotland. That seems to have been accepted now. The present proposals may remove part of this defect, because the office of the Secretary of State for Scotland is apparently to be abolished altogether. Presumably, the present functions of the Scottish Office would be the business of the proposed parliament. There is not to be a division of those executive powers this time. Does that mean that a chief Minister and other Ministers in the parliament, would be elected or appointed to replace the Secretary of State? Would the Scottish Office, with its 7,000 civil servants, be taken over in its present state or would a new executive, working for the new parliament, be formed? The elected members of a new parliament in Scotland could not by themselves perform the administration of Scotland.

What would happen to the special personal duties of the Secretary of State, which he cannot delegate to his junior Ministers or civil servants; for example, deciding on warrants for telephone tapping by the police or on the release of patients from Carstairs, the Scottish equivalent of Broadmoor, and similar functions performed personally by him and by the Home Secretary for England and Wales? There are a host of queries and problems of this kind which will arise.

I turn to taxation. The Scotland Act assembly did not have the power to raise taxes. That led to criticism that it had little scope to decide on priorities; also that it would continuously be blaming Westminster and the Treasury for not providing enough in block grants, even if the present ratio in favour of Scotland were maintained. The arguments in that controversy demonstrated the extreme difficulty in setting up an acceptable assembly. It also reversed a slogan of two centuries' ago: in this case it was, "No representation without taxation". The present proposals include power to increase or lower taxation by 3p in the basic rate of income tax. Again, that has become highly controversial, demonstrating the difficulties. Three pence is relatively insignificant on the overall financial scene, as the Constitution Unit's report pointed out last week. It applies only to basic-rate taxpayers, so that Parliament would not be able to reduce taxation for the needy and would be entirely dependent on the tax thresholds decided on for the UK as a whole by the Chancellor of the Exchequer.

There are those who blithely state that taxpayers would gladly pay more in Scotland for improved services. I doubt if many basic-rate taxpayers would, in the secrecy of the ballot box, vote for a policy of paying more income tax than their counterparts in England and Wales. It would not be popular with that part of the electorate which might be termed "middle Scotland".

A second referendum is now proposed on whether there should be tax-raising powers. This underlines the controversial nature of the proposal. The main

3 Jul 1996 : Column 1470

referendum will apparently be held before any set of proposals has been prepared. It would be based on the wide, vague and general concept of devolution. What would be the question? Would the question be, "Are you in favour of devolution for Scotland"? To my knowledge, there are at least 100 variations of devolution--more varieties than even Mr. Heinz thought of.

Massive administrative devolution already exists. The subject of the 1979 referendum was the 1978 Act. The question was straightforward. The electorate simply had to state whether or not they wanted the Act to be put into effect. It was a short, simple question on an unambiguous subject. The Act contained the system then proposed and a large amount of detail for those who wished to examine it closely. To hold a referendum before producing a proposed system is to put the cart before the horse.

In 1978-79 opinion polls regularly reported that about 70 per cent. of the public in Scotland favoured an assembly. It was not very different from polling the public in northern England on whether or not they were in favour of decentralisation. The result was much the same percentage. However, when a particular scheme--the proposals in the Scotland Act--was under scrutiny its defects and drawbacks were clear to many and a very different percentage supported it. Only 33 per cent. supported it and, ignoring the decimal points, those against amounted to 31 per cent. of the Scots population. Because of the 40 per cent. threshold requirement, under the provisions of the Act itself it had to be repealed. Will there be a similar threshold of 40 per cent. or another figure in any new Scotland Bill?

In the last referendum in 1979 there were grievances among Scots who could not take part because they were not resident in Scotland at the time. Some of them were only temporarily absent. Because the United Kingdom is a successful economic and social entity, Scots move to employment south of the Border and English move north. In addition, the Border is not a barrier to marriages across it, taking husband or wife to the other side of it. The referendum in 1979 was designed for residents in Scotland at the time who were on the electoral roll. In this context, it is misleading to use the over-simplified description "the Scottish people" for contemporary residents in Scotland. A referendum of that kind may well be useful in providing information, but it leaves out many Scots and includes a miscellaneous minority of non-Scots. This is the kind of difficulty which arises from a referendum.

A referendum based on a vague idea of devolution before the structure and functions of the new body have been formulated and discussed in this Parliament would obscure from the public's attention major constitutional changes. For example, one such change is to deprive a Scottish parliament of a second chamber or access to the House of Lords. Another is to adopt a system of elections under which about one-third of members would not be elected but appointed by political parties, which is a strange and alien concept in Scotland.

The question remains: why is the Labour Party attempting an immensely complicated operation at break-neck speed, given that it took four years to get

3 Jul 1996 : Column 1471

nowhere last time? The Leader of the Opposition, the right honourable gentleman Mr. Tony Blair, is reported in the press as saying that he wants to be the first Prime Minister to do it. I hope that for Scotland's sake he will not stake his reputation on achieving it in one Session of Parliament. I predict that, should Labour come to office, a reason will be found--some convenient new development--for postponing action on this part of its manifesto.

I can tell your Lordships and the noble Lord, Lord Irvine, that I have been consistent in this matter. I have never stood simply for the status quo. Changes and improvements can and are being made. I applaud the changes that have been made in recent years to the role of Scottish committees and their meetings in Scotland, which has been further developed by my right honourable friend the Secretary of State for Scotland, Mr. Forsyth. Previously, the Scottish sector of Parliament and its procedures were virtually unknown and invisible north of the Border. The Public Galleries at Westminster were little used by visiting Scots. I was able to give a push to the process of change during the years when I was Secretary of State.

In any move to create an assembly in Scotland, two factors require careful thought. First, it must be part of a stable and workable system. If it is not, it will play into the hands of separatists. The SNP is opposed to devolution but would take advantage of instability. It would try to use a new devolved institution as a half-way house to independence and the break-up of the United Kingdom. Secondly, I believe that every speaker taking part in this debate supports retention of the Union. The argument is about the nature and degree of proposed changes and the speed with which any of them is carried out. It would be contrary to the wishes of all Members of your Lordships' House if the Union were broken up, not deliberately but by mischance, during a devolutionary process. As far as concerns Scotland, the parliamentary system in the United Kingdom has been evolving for well over a century, and it is still evolving. Surely, it is better to build carefully on those foundations rather than run the serious risk of damaging a stable structure to produce a brittle house of straw.

4.47 p.m.

Lord Merlyn-Rees: My Lords, in speaking in favour of devolution I have no wish to break up the United Kingdom, with its flexible Constitution. I take pride in the fact that I was once a Minister of the Crown in the Government of the United Kingdom. I learned the importance of the Crown as a cement of the Union. I value my membership of your Lordships' House which has enabled me to listen to the maiden speech this afternoon of the noble and learned Lord, Lord Bingham of Cornhill. It was a privilege.

I speak only on English regional government, which has not been mentioned so far. If I were to speak on Wales and Scotland I would support the views of my noble friend on the Opposition Front Bench. I support a detailed White Paper before a referendum. After many years, I now live in Wales again. It has set me thinking

3 Jul 1996 : Column 1472

about whether I would have the vote in such a referendum if it was based upon a parliamentary register. If so, I would vote for it on that occasion.

I shall be brief, not least because I have no excuse for not staying here for the rest of the day. In the past two or three years I have been impressed by the tide of events which has led to more regional government in England in particular. There are 10 government integrated regional offices, which were established in 1993. They employ nearly 3,000 staff. Their annual running costs amount to £90 million. They are responsible for administering, directing or advising upon £6 billion of public expenditure in England. There is no control over them, except that they work upwards and not downwards. But the work that they do is of very great importance.

I have discovered in practical terms since leaving the other place--I am involved in charitable work in Yorkshire--that the advantage of having a regional office is not as great as having a Welsh Office or Scottish Office. But the position is developing. The 10 directors of the IROs have had such great influence that the then director of the Confederation of British Industry dubbed them "prefects". They were senior officials first established by Napoleon to enforce the will of the French central government.

There is a form of regional government in this country which has developed considerably in recent years. The weakness of the system is that it does not work to people who are involved in the regions or elected in the regions. They do not have the benefit of any formal regional level of advice. But in that respect the tide is flowing towards regional government. We should take steps to harness it.

There is another reason in England. It is the case also in Wales. It is the great development of quangos that has taken place under all governments, but particularly under the present government. Somehow regional government, in whatever form it takes, should take account of that. My advice would be to take English regional government slowly. What form of regional government? Steps are being taken towards regional government. I have no panacea for regional government. But given the local government reform that has taken place, English regional government is something about which we should think and talk after we have dealt with Scotland and Wales.

There is often a tide in the affairs of government, as we were reminded by the noble Lord, Lord Jenkins of Hillhead. In the last century--I picked this point up when reading his book recently--there was a great drive--the tide often went in different directions--to extend the franchise. It took 20, 30 or 40 years to develop, but the tide existed. There is a similar tide at the moment in favour of regional government.

Local authorities are constructing their own forms of representative regional groupings. In Yorkshire, there is Yorkshire and Humberside, and so on. It is taking place. There should be room for experimentation. For many years at the end of the war I sat at the feet of Karl Popper. From him I learnt the importance of

3 Jul 1996 : Column 1473

decentralisation; that centralisation can bring evils with it--necessary in wartime--but decentralisation is important.

The task is to use the trend towards regional government which is taking place in England to the benefit of the nation. It is not enough to be a latter-day King Canute with regard to regional government. It is happening. We should use it and harness it for democracy. In finishing at that point after a steady five minutes, perhaps I shall be able to slip out and have a cup of tea before the debate finishes.

4.52 p.m.

Lord Hooson: My Lords, I should like to add my thanks and appreciation to the noble and learned Lord, Lord Bingham of Cornhill, for instructing us so clearly on where we stand today in relation to the European Convention on Human Rights. Your Lordships have heard today that the issue of constitutional change is an important one. It is an inevitable one. It has been pushed to the forefront of the political arena at this stage both in your Lordships' House and another place for a purely political reason. It is thought that there is great scope for frightening the electorate that there is a danger of the break-up of the UK in the Labour Party's proposal for devolution, when there is no such danger.

I should like to begin by quoting what for me was the start of the national debate on our constitution. It began in 1976 when the noble and learned Lord, Lord Hailsham--I am sorry that he is not in his place at the moment--delivered the Dimbleby Lecture on "The Elective Dictatorship". Let me quote him in what I believe was an enlightened Conservative view at that time--very different from some of the views that we shall hear today. He came towards his conclusion of that interesting lecture with the words:

    "I have reached the conclusion that our constitution is wearing out. Its central defects are gradually coming to outweigh its merits, and its central defects consist in the absolute powers we confer on our sovereign body, and the concentration of those powers in an executive government formed out of one party which may not fairly represent the popular will".
He continued:

    "I envisage nothing less than a written constitution for the United Kingdom".
He went on to develop his theme with which I did not greatly disagree.

Before I leave that interesting lecture, I should like to quote another part where the noble and learned Lord dealt with the issue of nationalism with which he said he had considerable sympathy. He said:

    "If they only wished to achieve their purpose within the ambit of a new federal constitution, I can see nothing unreasonable about their aim. After all, nations as diverse as the Swiss, the Americans, the Canadians, the Australians and the Germans have all managed to achieve stability, efficiency, and prosperity on these very lines. So far as we are concerned it is at least arguable that it was our failure to come to terms with federalism in any form which led to the severance of our connexion with Ireland and therefore to the partition of the British Isles, with all the misery that that has entailed".

3 Jul 1996 : Column 1474

The noble and learned Lord followed the lecture two years later with a book entitled The Dilemma of Democracy. It behoves noble Lords opposite to refresh their memories of the views that he put forward in those days on the changes to the British constitution that he thought were inevitable as we faced the pressures of modern times.

We in Europe are moving inexorably to a form of a united Europe which will almost certainly eventually result in some kind of federalism, probably a different form from what has been experienced in the world so far, although on federal principles. The real debate is not whether it will happen but when and how it will happen. For example, at the moment in Wales alone 30 per cent. of the employment is provided by inward investment by companies which invest not particularly because it is Wales, and they find it a congenial place, but because it is part of the European Community where power lies.

I was involved with the building of the Severn Bridge. Nearly half the investment for that came from the European Investment Bank. A good deal of the other investment--it is all by way of loans, as a matter of fact--came from other European and international banks.

The founding fathers of Europe envisaged that the development of Europe would push us gradually in the direction of a politically united Europe. We are seeing it happen. The noble Lord, Lord Merlyn-Rees, in his short but effective contribution, said that administrative regional centres in England were already developing. That is important. It started like that in Wales before we got as far as having a Secretary of State. It started much earlier in Scotland. It will inevitably evolve over the next decade. We must remember that the speed of development in communication, science, weaponry for defence, and so on, has made it imperative that we change our modes of thought on this matter equally speedily.

We face pressures from outside, from Europe. We face pressures inside, because we have the most centralised government in Europe. Already in Europe, Germany has a federal constitution, put in place largely with our help after the war; in France, there has been considerable devolution in that highly centralised country; in Spain, we are seeing the development of regional governments. That will lead to some form of federalism. That is happening throughout Europe.

We are in a state of flux at the present time. The Labour Party's proposals are an essential step on the way. If Labour's plans for Scotland are put in place, it will not be the end of evolution for Scottish government. If the assembly for Wales is put in place, that might well be the model for future developments in the regions of England, because there are great advantages in decentralisation. The whole ethos of the development of Europe is that it will move eventually towards a federal Europe. In time, whether it be 20, 30 or 100 years--I do not know--a constitution will eventually be formalised there. However, on the way we have to look at our own history and our own background and think what is the natural next step for us.

3 Jul 1996 : Column 1475

Surely, the natural next step for us is to have an experimental Parliament in Scotland and an experimental Assembly in Wales. In so far as those are desirable ends, and I believe that they are wholly so, they will be a pattern from which we can learn for the future development of the United Kingdom.

There is no danger of a break-up of the United Kingdom. Britain was evolved partly through conquest, as happened with Wales, partly through marriage, as was the case with the Orkneys and Shetland, and partly through a non-democratically approved union with Scotland. In fact, we have lived together for so long that within Europe we will be natural allies in any event, however much devolution we have. There is no danger whatever of a break-up of the United Kingdom.

I believe that the debate on constitutional change is a step on the way to an effective devolution of power with the knowledge that in this country one of our worst handicaps is the excessive concentration of power in London. It is time that the whole process was reversed.

5.1 p.m.

Lord Donaldson of Lymington: My Lords, notwithstanding the constraints of time I must join in the universal welcome which has been accorded to my noble and learned friend Lord Bingham of Cornhill. His speech was as elegant as those of his erstwhile colleagues would have expected. It was also as informative as we would have expected and, if it was perforce uncontroversial, I have no doubt that future editions would be of a different character for, above all, he is his own man.

I had intended to talk exclusively about the European Court of Human Rights. However, I hope that I shall be forgiven if I have been tempted into a minor deviation by the noble and learned Lord the Lord Chancellor. He informed the House, quite correctly as one would expect, that the Treaty of Rome and all the associated European legislation took effect in this country only by virtue of the will of Parliament. He went on to say that, of course, it would be open to Parliament at any time to provide that the Treaty of Rome did not have any bearing on particular provisions. I wonder whether some Euro-sceptics may not pick that up and we may not have a spate of small amendments to statutes. It is easily done. In fact, the noble and learned Lord the Lord Chancellor might be interested to know that the Government did it on Monday. It was in the course of the Asylum and Immigration Bill. A clause was introduced with the somewhat novel words:

    "Notwithstanding any enactment or rule of law",
the Minister shall have a regulation-making power. The Minister was asked what on earth that meant. Was it intended to exclude the right of judicial review? He stoutly denied that it was. He said, "Oh, no. It is certainly open to the courts to review the regulations". We all went home wondering what the purpose of it was. Now we know. It circumvents the whole of the Treaty of Rome and all the associated legislation which goes with it. But that is a deviation.

3 Jul 1996 : Column 1476

I return to the Strasbourg court, which is wholly different from the Luxembourg court. That is an essential court; if you have a supra-national legislature you must have a supra-national court to interpret its legislation. The Strasbourg court is different. It depends for its raison d'etre entirely upon a single treaty. It is a very special treaty. It was produced in the 1950s as a follow-up to the United Nations Declaration on Human Rights, in order to try to differentiate between those countries very much in people's minds at that time which were plainly dictatorial and undemocratic and the older democracies which had common values that we describe as democratic.

I very much doubt whether it was ever intended to give rise to detailed justiciable rights in individuals. I believe rather that it was intended to set a general benchmark by which it was possible to judge which countries were and which countries were not properly described as democracies.

I know of nothing in the text of the treaty with which any Member of this House or the other place would disagree for one moment. But it is in very broad, general terms. It is subject to a number of expressed exceptions. Above all, it is subject in a large number of places to an exception which reads:

    "Except as may be prescribed by law and is necessary in a democratic society".
The crucial question is: who is going to decide that? Of course, prescription by law is a matter for national parliaments and, as far as we are concerned, for this Parliament. But who is going to decide whether that law is necessary in a democratic society?

As I understand it, the Opposition would take the view that in the last resort that must be decided by the court in Strasbourg. However, I query whether the judges of that court, distinguished though they are, have the necessary qualifications to do it. What is necessary in a particular democratic society depends in some measure, perhaps in large measure, on what are the traditions of that country and on what are the particular circumstances affecting that country at the time. Is there any reason to believe that the numerous judges, all drawn from other countries bar one, have any special expertise and capacity to decide that?

Even if they have, one must look at the competing possible authorities. It has been suggested that a competing possible authority would be the United Kingdom courts. The judges would, of course, be familiar with the traditions of this country. They would, of course, be familiar with the problems which were facing the country at the time. But is it really right that the judges should be asked to say that that which has perhaps only recently been prescribed by law by Parliament was not necessary in a democratic society? It would produce a most startling conflict between the judiciary and Parliament. I for my part would deplore it wholeheartedly, not least because it would be extremely difficult for Parliament to relegislate when the judges had reached such a declaration. It would be particularly difficult for the active judicial Members of this House who perhaps on the final appeal would have declared that their colleagues in a legislative capacity had produced an enactment which was not necessary in a democratic society.

3 Jul 1996 : Column 1477

What other candidates are there? The obvious candidate is Parliament. With greater or lesser success down the ages, Parliament has for centuries been safeguarding the rights and freedoms of the people of this country. If the Opposition want to make good the suggestion of change they must first point to the respects in which Parliament has failed in its duty to the people. I am not talking about individual political policies; I am talking in terms of fundamental rights and freedoms. Let them show in what respect Parliament has failed. If they do I suggest that the right remedy is reform of Parliament, not referring the matter either to the judges, for reasons which I have already given, or to an outside body on which the United Kingdom is in a minority representation.

The truth of the matter is that there is a vast confusion of thought here. Over the past few years, since I gave up the trappist aspect of being in full-time judicial appointment, I have expressed the strongest possible disapproval of some of the activities of the Home Secretary and the Home Office. Only this week I was expressing some disapproval of the Government's proposals in relation to the Asylum and Immigration Bill. Of course, I could go round suggesting that those proposals in each case involved some breach of fundamental rights and freedoms. If I did that, I think that I would be abusing language and would be mistaken.

One really must go much further than saying that you profoundly disagree with a policy before you can say legitimately that it involves a breach of fundamental rights and freedoms. I believe that if a majority of this House and the other place decides that something is necessary in a democratic society and carries laws prescribing that result, I shall simply have to say that that would not be my view but that it is the view of the majority so I must reluctantly accept that I am wrong, whatever private reservations I may have.

Far from incorporating the convention and far from giving us direct rights to appeal from the English courts to the Strasbourg court, I should negotiate with a view to modifying the treaty so that citizens had no right at all to go to the Strasbourg court. That is not to say that there would be no function for the Strasbourg court. It should go back to what I believe was its original function; namely, to mark out the differences between democratic countries and dictatorships and to highlight real and unarguable breaches of fundamental rights and freedoms.

It could still do that by giving declaratory judgments. A declaratory judgment, whether against this country or any other, would focus the attention of Members of Parliament on whether the legislation was right and would enable them, if necessary, to have second thoughts. If they refused to have second thoughts, as well they might, then it would focus world opinion and they would take account of that. But any move in any other direction as has been indicated this evening, I personally would deplore.

Next Section Back to Table of Contents Lords Hansard Home Page