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3 Jul 1996 : Column 1478

5.13 p.m.

Lord Thomas of Gwydir: My Lords, I congratulate the noble Lord, Lord Merlyn-Rees, not only on the quality of his speech but in particular on its brevity. I shall try my best to follow his example and be brief.

I shall restrict my remarks to the devolutionary policies of the Labour Party which in my view are a direct threat to the cohesion and stability of the United Kingdom. I do not intend to say much about the proposed Scottish parliament with its legislative and tax-raising powers, except that I agree with the views expressed by my noble and learned friend the Lord Chancellor and by my noble friend Lord Campbell of Croy.

In particular, my noble friend Lord Campbell mentioned the West Lothian question which asks why Scottish MPs at Westminster should be able to vote on purely English matters while English MPs will have no say over matters devolved to a Scottish parliament. So far, we have not had an answer to that particular question. It is inevitable that there will be a reduction in the numbers of Scottish Members of Parliament at Westminster if that parliament comes into effect.

In the short time for which I intend to speak, I shall confine my remarks to Labour's devolution plan for Wales, which, as the House knows, is to establish an elected assembly in Cardiff with no legislative or tax-raising powers; in other words, it is the establishment of an expensive political and bureaucratic talking shop with no fiscal autonomy.

The reason why no parliament such as that proposed for Scotland is proposed for Wales is quite simple. It is because there is very little appetite in Wales, in particular among traditional Labour supporters there, for any change. They know that the Union with England and Westminster serves Welsh interests well. They know also that home rule in any form would sooner or later lead to constitutional conflict or deadlock which would undermine that Union.

Much has been said about Mr. Blair's announcement that before acting on those proposals, a Labour Government would hold referendums. Mr. Blair has been strongly criticised for that but I do not do so. He is a clever man and, in that respect, has acted wisely. To use his own words, he was haunted by the spectre of 1979, and that was referred to by my noble friend Lord Campbell of Croy.

In 1979, the then Labour Government had battled in Westminster to establish by legislation parliaments for Scotland and Wales. As my noble friend Lord Campbell of Croy said, they battled for four years. The result of all that endeavour was that in March 1979, their policies were ignominiously defeated in two referendums. In Wales, the defeat was four to one--20 per cent. in favour and 80 per cent. against. Not a single part of Wales returned a verdict in favour of the proposals.

I believe--and I would not be surprised if Mr. Blair believes--that if the Labour Party wins the next election and calls a referendum, the proposal for a Welsh assembly would be soundly defeated.

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5.17 p.m.

Lord Sewel: My Lords, I start by apologising to the House that, because of a commitment at my own university tomorrow, I shall be unable to stay for the second day of the debate.

The distinctive feature of the present system of government in Scotland is that it is lopsided. Through the Scottish Office, we undoubtedly have administrative devolution but without--and this is the important point--any matching legislative devolution. Therefore, the aim of our proposals on devolution is simply to provide legislative devolution in order to ensure that Scottish legislation is more responsive to Scottish values, principles and priorities and, as importantly, to make the Executive accountable within Scotland. Those are the objectives of the whole plan and proposal.

What we propose for Scotland should also be seen in the wider context--and that has been referred to briefly in passing--of the development of regional levels of government throughout the whole of the Western democracies, especially within Europe. The nation state is evolving but we sometimes seem to be timid, to be afraid, of moving away from anything which is not a tightly and narrowly defined model of the unitary state. We are in danger of our thinking being trapped in an increasingly irrelevant time-warp.

In reality, we are actually living in a world where it is recognised, more so day by day, that it is appropriate to look at different levels of decision making. Some decisions are taken, quite appropriately, at the European level, while others are taken at the level of the individual state. But there is increasingly a recognition that more and more of the sorts of decision which impinge directly on the day-to-day lives of our citizens ought to be taken at a level below that of the state--rather, they should be taken at the regional level to allow for variety and diversity and for local solutions to local problems.

As my noble friend Lord Irvine of Lairg indicated, there is widespread support for the concept of subsidiarity; indeed, it is trotted out time and again in relation to Europe. But subsidiarity does not stop at the level of the nation state: it goes a lot deeper and a lot further. With others, I am intent on preserving and strengthening the Union, but I want a Union not based on a sterile uniformity but on a rich and active diversity. That is what devolution makes possible.

Of course, our critics and opponents point to the so-called West Lothian question--indeed, they have already done so today, understandably--and somehow put forward the argument that it presents an insuperable obstacle to devolution. A Parliament for Scotland does not raise a new constitutional issue.

Noble Lords: Oh!

Lord Sewel: No, my Lords. The British constitution has already adapted to and accommodated regional parliaments: it is already there. The Government of Ireland Act 1920 has already been quoted. That was one accommodation to regional government.

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Lord Campbell of Croy: There was a reduced number of MPs from there.

Lord Sewel: My Lords, we will come to that.

Members of Parliament from Ireland sat in a British House of Commons voting on Great Britain legislation while Members from England, Wales and Scotland did not vote on Irish domestic legislation. However, let us bring the argument up to date. At present, the Government in their own proposals for the future government of Northern Ireland do not recognise a North Antrim question; indeed, they are silent on that issue. Further, the Government do not seek to disturb the basis of Northern Ireland's representation in the House of Commons.

As regards the financing of a Scottish parliament, it will be necessary to ensure that such a parliament is funded on a fair and just basis. That is not the same as saying that expenditure per head of population should be the same throughout the different parts and elements of the United Kingdom. In regional systems, an important role of the central government is to distribute revenues to the various regional bodies on the basis of some assessment of need.

One of the proposals that has attracted the greatest interest, and some controversy, is the tax varying power of the parliament. It was the late Lord Home who identified the need to give a Scottish assembly some control over taxation. Lord Home rightly recognised that a modest degree of fiscal responsibility was necessary in order to prevent the proposed assembly from blaming the allegedly inadequate level of central block grant for its own inability to provide services at the level that it might wish. Fiscal responsibility produces a matching political responsibility. That is central and important.

Noble Lords will also expect me to refer to the question of a referendum. I am not actually a great advocate of referenda. That is perhaps because I taught French politics for a little too long. But the creation of a new parliament is a major constitutional change and deserves the special and specific endorsement of the people which is possible through a referendum. Popular endorsement through a referendum makes more likely a stable and enduring settlement. Within a system of parliamentary sovereignty, that is perhaps the closest that we can come to some form of entrenchment.

The question for the party opposite--and it is the one to which my noble friend Lord Irvine of Lairg referred--is: after a general election and the endorsement by the electorate of a Labour manifesto containing the commitment to devolution, and after a subsequent referendum on a clear White Paper proposal; in other words, after those two specific endorsements, will the party opposite accept that as a clear and definitive expression of the settled will of the Scottish people? That is the question which must be asked. We have not as yet received an answer.

I turn now to the argument that devolution is the first step on the slippery slope to separatism. I recognise the sincerity with which that view is held by some noble Lords. But, I believe it is a view which is profoundly mistaken. Surely in this place of all places we should

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recognise that separation comes about not as a result of recognising the legitimate aspirations of people for domestic parliaments, but as a result of opposing them. We have the paintings to remind us.

More recently, we can look to Spain and see that the creation of strong provincial government, especially in Catalonia, has led to the collapse of what had previously been a powerful separatist movement. Far from being the first step on the slippery slope--and I agree with my noble friend Lord Irvine of Lairg in this respect--devolution is a bulwark against separatism.

Finally, perhaps I may briefly refer to my own history. I was born in Hackney and brought up in Bradford in the north of England, my first job was in South Wales and I have lived for most of my life in the north-east of Scotland. If I believed that devolution would lead to the break-up of the Union, I would oppose it with all my might. I do not believe that that is the case: rather, devolution to Scotland is the first stage in a process that will create a new Union, a stronger Union, one based on diversity and one in which government, because it is decentralised, will be more responsive to the people.

5.28 p.m.

Lord Lester of Herne Hill: My Lords, I must begin by apologising to the House because, as I have already explained to the noble Viscount the Leader of the House, I cannot be present for much of the remainder of the debate. Therefore, exceptionally, I must seek the indulgence of the House in that respect.

I should like to begin by expressing my great personal pleasure on being present in the Chamber to hear the maiden speech of the noble and learned Lord, Lord Bingham of Cornhill, who, if I may say so, is the epitome of all that is finest in the senior English judiciary, as has already been said by several speakers. I look forward to hearing the noble and learned Lord when he is less maidenly in the future.

We are asked by the noble and learned Lord the Lord Chancellor in this important debate to,

    "take note of the United Kingdom's existing constitutional settlement".
That is a daunting task; for the British constitution is such a wild and tangled ancient wood of unwritten laws, conventions, great charters, together with a dense undergrowth of detailed statutory legislation.

We are rightly proud of our parliamentary system, based on representative democracy, government under law and civil liberty. It has, of course, inspired constitution-makers across the common law world. The post-war international human rights codes, including the European convention, reflect the philosophy and values of British thinkers of the past three centuries.

However, as several noble Lords have already said--and the noble Lord, Lord Irvine of Lairg, most powerfully--it is as ludicrous to be complacent about the existing constitutional settlement as it is to pretend that campaigners for constitutional reform are somehow endangering national unity, or even lacking in patriotism. The existing arrangements are seriously

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deficient, and the constitution, if I may say so, is not the property of the Conservative Party but of the citizens of this country.

For 17 years four Conservative governments have not hesitated to make radical changes in our constitutional arrangements. The inheritance they will leave for the next government is an over-centralised but unstable political system, unpopular with many of those it is meant to serve, and disruptive of the unity of the nation. They have failed to nurture a stable British constitution which protects our national identity and diverse traditions and adequately protects basic civil rights and freedoms.

It is astonishing but true that, unlike the other member states of the European Union, we have only weak constitutional and legal protection for our sense of nationhood and our sense of citizenship. The doctrine of parliamentary sovereignty is a frail safeguard against the incoming tide of European law. It is also a frail safeguard against the dominance of the Executive over Parliament. For most of the time the Executive of course controls Parliament: the elective dictatorship, in the celebrated phrase of the noble and learned Lord, Lord Hailsham. I find it a profound irony that a Government so vocally opposed to a European federal state should have failed to create a constitutional bulwark for this country; and that a Government rightly hostile to a centralised Europe should cling so obstinately to a centralised British state.

The idea of a good constitution, which we on these Benches cherish, is quite different. Our central aim is to renew the British constitution so that it can strengthen our democracy, our citizenship, our sense of common purpose, and the quality of government in the interests of the governed. That is why we want to make the Executive more accountable to Parliament, to the courts, and to the people, and to create a stable and enduring framework of elected government based, as the noble Lord, Lord Irvine, has said, on the principle of subsidiarity--that power is exercised at the lowest level compatible with good, efficient and accountable government. If that makes sense for the EU, it also surely makes sense for the UK.

We seek an enforceable British Bill of Rights enabling British judges to give effective British remedies for breaches of fundamental rights by the Executive and other arms of government. We do not understand why our courts are less fit than the courts of all, or almost all, the other member states to interpret and apply the European Convention in accordance with local knowledge and needs. I shall return in a few moments to the convention in the light of what has been said by the noble and learned Lord, Lord Donaldson, a few moments ago.

We want to set enforceable limits on the prerogative powers of the Executive; to shift substantial power from over-centralised Whitehall departments and unelected quangos to a Scottish parliament, a Welsh assembly, and where there is sufficient regional demand--and only then--to regional assemblies and to a renewed system of local government. We seek to make Parliament more effective in calling the Executive to account and in

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scrutinising legislation; and to make this House more democratic and regionally representative, with an enhanced role as a constitutional watchdog. We wish to create a voting system which better reflects the wishes of the electors; to improve access to justice; and to improve and promote greater openness and accountability in government at every level by means of a freedom of information Act.

The Government are right to fear each of these aspirations, for what we seek is both popular with the people and hostile to the privileges and immunities of an over-mighty Executive. Each of the proposals for reform is closely linked with the others, just as they are in turn influenced by the shaping of the European Union and the sharing of national sovereignty. Each of them affects the others and together they amount to a practical but ambitious agenda. I believe that to bring about coherent and enduring constitutional reforms on this scale will require great political commitment, imagination and patience. It will be necessary to move beyond the traditional parliamentary diet of piecemeal, politically partisan and indigestibly detailed legislation. We have exported many constitutions to the countries of the former British Empire, but we cannot easily do the same for ourselves. If we are to achieve a system of government in which each part relates sensibly to the system as a whole, we have to do the next best thing. We should, I believe, work for a comprehensive programme of constitutional reforms rather than yet another series of disjointed legislative Acts, not on speaking terms one with the other.

Is there, then, an efficient method of constitutional law making which respects Parliament's sovereign legislative powers and yet avoids the pitfalls of past attempts? Are there ways to ease the passage of the legislation in a manner which would make constitutional sense and be likely to survive a future change of government?

These are perplexing but crucial questions which have been explored with objectivity and realism by the constitution unit to whose advisory committee I am proud to belong, although I take no credit for its work. I believe that, given the necessary political will, ways can be found which respect both parliamentary and popular sovereignty, preventing the reform programme from foundering because of archaic parliamentary procedures, and using the referendum to validate the reforms that achieve popular consent.

To secure a lasting and sensible settlement based on constitutional principles will be a lengthy process based on building a broad consensus. There are discrete measures which can be enacted meanwhile, provided that they are elements in an overall coherent plan; for example, the incorporation of the European Convention, and, I would add, of the International Covenant on Civil and Political Rights. That could be done easily as a first step towards a British Bill of Rights. But those of us who advocate constitutional reform have a duty to explain what we have in mind and how we propose to go about the process. The way in which we undertake constitutional change is, I believe, as important as the overwhelmingly strong case for the reform of our constitution.

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Finally, I wish to say a few words about the European Convention because I am afraid I do not agree at all with what was said by the noble and learned Lord, Lord Donaldson of Lymington. In the first place, the whole purpose of the European Convention was to enable individuals in states that belonged to the convention to have effective access to national, and then to European remedies. That is why the convention allowed states to accept the jurisdiction of the European Commission and Court. In the early drafting it was intended to be compulsory, but later it became optional. That is why the convention requires the states to secure rights and freedoms in their laws and to provide effective domestic remedies.

Secondly, when the then Lord Chancellor, Lord Jowitt, was contemplating signing and ratifying the convention, it is clear from the Cabinet papers that I have read that he expected there would have to be an act of incorporation of the convention into domestic law. But the Government changed. It never happened.

Thirdly--I am not sure whether the noble and learned Lord, Lord Donaldson, is aware of this--from his point of view the pass has been sold. Last year, I am glad to say, the United Kingdom ratified the eleventh protocol to the convention which gives a permanent right of access by everyone in this country to a permanent new European Court of Human Rights. That protocol, which has been signed by many states, is of great importance to the effectiveness of the convention.

Your Lordships may be interested to know that, finally, every state which belongs to the convention, apart from Ireland--including even the Nordic states which had a tradition similar to our own--has now incorporated the convention by one means or another into domestic law. I am, therefore, most heartened and delighted that the Labour Party is firmly in favour of incorporating the convention.

5.40 p.m.

Lord Gray of Contin: My Lords, in the past we have been indebted to the noble Lady, Lady Saltoun, and the noble Earl, Lord Perth, for giving us the opportunity to discuss alternative forms of government in Scotland. Today we have embarked on a much wider ranging debate. Therefore, I propose to restrict my remarks purely to the controversial proposal to recreate a parliament in Scotland.

I am interested that the Leader of the Labour Party took up one of my suggestions when I spoke last year. He decided to call a referendum. Unfortunately he chose the wrong option and got himself in a fine pickle as a result. Nevertheless, by calling a referendum he conceded that he agreed with what we on this side of the House have always argued: that a general election did not give a mandate for the creation of a new Parliament anywhere in the United Kingdom. We made that claim because each party's manifesto contained a variety of promises and suggestions and, therefore, we could not expect a mandate for a parliament to be obtained on that basis.

If a referendum had been a possibility I should have preferred a multi-option referendum at the end of a full campaign in the first year of a new government during

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which all the minuses and pluses could have been outlined for the population so that it could make a considered judgment. It is now suggested that a referendum takes place before legislation is in place. To my mind that seems utterly pointless. By the time a Bill has been through the parliamentary system it can be totally different from the form in which it commenced life. Unfortunately that could well be the case with the proposed legislation which the Labour Party, the Liberal Party, and the convention have in mind.

As regards the Scottish Constitutional Convention, perhaps I may mention the former joint chairman, the noble Lord, Lord Ewing of Kirkwood. In his handling of the affairs of the convention he has attracted unto himself from all over Scotland the highest respect. That respect is shared not just by his own colleagues but by those who disagree vehemently, as I do, with practically everything that he sought to do. But that does not detract from the high esteem in which we all hold him.

The referendum that we shall have can have no bearing on Parliament. One cannot have a referendum which asks two questions specifically designed to achieve the answer one wishes, and then have the Bill debated and perhaps changed considerably. Who knows, my Lords? The Bill can be changed for a variety of reasons--by amendment or by the Government of the day changing their minds. It could be changed by the Leader of the Labour Party. After all, he has changed his mind on a number of issues. Noble Lords might ask the noble Lord, Lord Ewing, if they feel that that is not the case. In any event, it is not a foregone conclusion that the legislation will finish as it began.

I must also take issue with the noble Lord, Lord Irvine of Lairg. It came rich from him this afternoon to talk about some of our colleagues in another place changing their minds. The noble Lord is a Front Bench spokesman of a party which has changed its mind on many issues. It has changed its election manifesto so devastatingly that anyone considering the Labour manifesto of 1970 would scarcely believe that it was written by the same party which produced the manifesto in 1987. And when it comes to the next election, we can expect even greater changes. However, I congratulate the noble Lord on a very interesting and combative speech which I appreciated very much--even if it contained a few hostages to fortune.

I am by no means the only person who suspects that reasons exist for following the referendum route other than those offered by the Leader of the Opposition. Writing in the Herald on 28th June, the well known Scottish journalist, Alf Young, himself a devolutionist, wrote:

    "Michael Forsyth was clearly landing punches with his tartan tax offensive and the Labour leadership was feeling the pain".
Later in the same article, he continued:

    "Asking the Scottish people to endorse both Labour's home rule plans and the issue of devolved tax-varying powers before a Bill is enacted is both a way of vaulting over Scottish Labour and its jealously protected devolved powers and a means of defusing the tax issue for good".

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Alf Young may well be correct, but I suggest that there is another reason which is doomed to failure from the outset.

There is a view that if Scotland were to vote "yes" with a substantial majority on a pre-legislative referendum, it would guarantee the legislation fast track treatment in Parliament. Indeed, the noble Lord, Lord Irvine of Lairg, said as much: that there would be this great mandate, and the measure would go through. Nothing could be further from reality, and I shall remind the noble Lord why.

A Bill to establish a Scottish Parliament would be one of the most important in the life of a new Government. It is the duty of an Opposition to oppose that with which it does not agree and to scrutinise every clause and line of each Bill which comes before the House, in particular one with such far-reaching effects, and--being a constitutional matter--one which would have to be taken on the Floor of the House.

It is on the Floor of the House at Committee stage that such major issues as the West Lothian question will have to be considered. No solution has been found. Noble Lords on the other side of the Chamber can make excuses and give examples. But the truth of the matter is that, as the noble Lord, Lord Jenkins, pointed out, so far no solution has been found to the difficulty which arises as long as 72 MPs continue to vote on all matters at Westminster, and a large part of Scottish legislation will be dealt with in Scotland on which MPs representing seats outside Scotland cannot vote.

The West Lothian question is not new, as my noble friend Lord Campbell of Croy pointed out. The Kilbrandon Royal Commission considered the question as far back as 1973. It found that a problem would arise over the extent and level of representation of those regions in the House of Commons compared with that of regions which did not have legislative assemblies of their own. It is unthinkable that Scottish constituencies might not be represented adequately at Westminster but Scottish representation is in real danger of being reduced. The case for devolution is certainly not made. But the case for fewer Scottish MPs at Westminster, should it come about, seems very strong indeed.

I wish to raise a particular point. I am concerned about the future of the Lord Advocate's role. The Lord Advocate is currently a member of the United Kingdom Government. He is one of four Law Officers and advisers to the United Kingdom Government, two English and two Scottish. But he is also the Public Prosecutor in Scotland and is answerable to the Westminster Parliament in that capacity. If a Scottish parliament is set up, law and order would be one of the devolved powers. As a major participator in the criminal justice system in Scotland, the Lord Advocate would require to be answerable to the Scottish parliament in respect of his role as Public Prosecutor. He could not therefore remain a member of the United Kingdom Government in the United Kingdom Parliament. To do so would place him in a position giving rise to a conflict of interest.

Paragraph 134 of the constitution unit's report refers to Law Officers of both Scottish and UK Governments. They would have responsibilities to advise their

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respective governments. That would mean that the Lord Advocate would cease to play a role in Whitehall and Westminster, as would the Solicitor General for Scotland. That would be a great disadvantage to Scotland and would weaken Scotland's voice in Cabinet committees and other government discussions.

Then there is the question mark which must arise over the powers of the Secretary of State and his influence in Cabinet, the question of funding, the amount of the block grant and the formula by which it is decided and, above all, the danger that we could be legislating for the first step towards the break up of the United Kingdom. All in all, this legislation will be of enormous importance and cannot possibly be rushed.

In conclusion, when one looks at the effect of the proposals in the Labour and Liberal Parties and the convention, the inevitable outcome must be that the tartan tax will not satisfy for long at three pence in the pound. Every imperfection will be blamed on Westminster. A Labour Government will certainly not be forgiven because of their great numerical strength in Scotland. When things go wrong in a Scottish assembly or Scottish parliament, if one is set up, the Labour Party will be blamed. What will that do? It will divert attention to the Scottish National Party and there will be an exodus from Labour to the Scottish National Party in a demand for independence. People will say, "Your government, the Labour Government, have taken us down this route and now we will go the whole way because you can't deliver what you said you would". There is no halfway house; union or separation are the only choices available. I hope with all my heart that the Scottish people will not be tempted down the treacherous path of devolution.

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