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Lord Sewel: My Lords, I hesitate to interrupt the noble Lord. However, he has drawn attention to the site of the Scottish parliament. Can the noble Lord confirm rumours that are circulating that because it is being built on the site of the present brewery it will shortcut the planning process, and that no change of use permission will be required?
Lord Nickson: My Lords, I should love to be able to answer the Minister on that point. However, as I retired as a non-executive of Scottish and Newcastle over five years ago, I am looking far into the past and have no current knowledge.
The Minister will be disappointed if I do not raise this point because he thinks that I cannot stand on my feet without talking about salmon. I just wish to thank him for Clause 100 which allows Her Majesty by Order in Council to produce regulations for Tweed and border Esk. He will understand why I thank him for that.
Lord Hope of Craighead: My Lords, first, I must apologise to the Minister for the fact that I was unable to be present to hear his opening remarks due to business elsewhere in the House. I shall look forward with great pleasure to reading them tomorrow in Hansard.
I should like to say a few words about the constitutional aspects of the Bill and to comment on the provisions which it makes with regard to the appointment, removal and functions of the judiciary. For reasons which I shall attempt to explain in a moment, I believe that the new constitutional settlement for Scotland will have major implications for the work which judges do and for the way in which the work done by the judges affects the conduct of government. I also believe that insufficient attention was paid to that aspect of the devolution process when it was being explained to the people of Scotland during the referendum campaign. In the result, it is far from clear, despite all the enthusiasm which they have shown for it, that the people of Scotland have yet really understood the nature of the change in their parliamentary arrangements which will be an inevitable consequence of devolving legislative power to Holyrood from Westminster.
We all know the result of the referendum and we share a wish to see the best and most stable form of devolution that can be achieved. But if that end is to be achieved, it is essential that we should all have a clear understanding of the nature of the fundamental change which is being proposed.
One can best approach the first point I wish to make by looking at the issue of sovereignty. Much has been said about that issue in another place. It seems to have been approached by some of the Government's critics--I refer in particular to the Scottish National Party-- on the basis that there was a choice between retaining parliamentary sovereignty at Westminster and transferring parliamentary sovereignty to the people of Scotland in their own Scottish parliament. That certainly is how the argument has been presented in Scotland, and I suspect that there is now a widely held belief--encouraged no doubt by the fact that the new legislature is to be called a parliament and not an assembly--that the Scottish parliament will enjoy the same sovereignty, and all the privileges which go with sovereignty, as the Parliament here at Westminster. But such a belief, if indeed there is such a belief, would be profoundly mistaken. In that mistake would lie the risk of dissatisfaction, and thus of instability, as the true nature of what has happened was revealed when the work done by the Scottish parliament was brought under scrutiny in the courts.
The fact is that there is to be created for Scotland a new kind of sovereignty. It is not parliamentary sovereignty but constitutional sovereignty. Parliamentary sovereignty will continue to reside here at Westminster. That is made absolutely clear in Clause 27(7) of the Bill. But even if the clause had been silent on the matter, there would have been no choice about this. A devolved parliament cannot be a sovereign parliament in the sense that Parliament here is sovereign. The essential characteristic of a parliament which enjoys parliamentary sovereignty is that its power to legislate on whatever matter it chooses cannot be called into question before the courts. But the essential characteristic of a devolved parliament is that it can only legislate within the powers which have been devolved to it. Any legislation which is enacted outside those
On one view it might seem that a new arrangement which subjected Scottish legislation to judicial scrutiny was an imperfect arrangement. After all, the position today is that Scottish legislation enacted here in this Parliament enjoys all the benefits of the principle of parliamentary sovereignty. Except in so far as a question may arise under European Community law, and, when the Human Rights Bill is enacted, under convention law, such legislation is beyond challenge once it has been enacted. There is no uncertainty. Public money can be expended and arrangements can be entered into privately in complete confidence that what has been enacted by this Parliament is the law. That will not be the position when legislation has been enacted by the Scottish parliament.
One has only to look at the devolution issues listed in paragraph 1 of Schedule 6 to see the scope which will exist for challenges to be made. No time limit is set for the making of those challenges. As has been pointed out by several noble Lords, there is to be no revising chamber. So in theory at least--I stress the word theory--subject to the exercise of the powers given to the court in Section 93 to vary retrospective decisions, legislation by the Scottish parliament could be set aside as not being within that parliament's competence long after it had been put into effect. In the wrong hands that could be very damaging.
But there is an entirely different side to this matter which we should properly recognise. The situation in which the Scottish parliament will find itself is the same as that in which parliaments or national assemblies of almost all the countries, states and provinces both in Europe and in the Commonwealth--Catalonia and Bavaria have been mentioned--which have written constitutions enact their legislation within the constitution. The United Kingdom is unique within the European Union in that it alone operates under the principle of parliamentary sovereignty. In all the other countries it is the constitution which is sovereign and binding on the legislature. The same is true in most Commonwealth countries, which see the principle of parliamentary sovereignty as outdated and even dangerous--nowhere more so than in South Africa. So on one view it can be said that the new arrangement which will apply in Scotland is a truly modern, state of the art, arrangement. Indeed, in another place the Secretary of State for Scotland said that this was a decisive step in the fight to modernise our constitution. In that respect, I agree with him. He also said that the objective was a new covenant with the people. That also is true, in the same sense as in all those other countries it is the constitution which is the covenant with the people. But the fundamental point which needs to be understood is that both the Scottish parliament and the Scottish executive will be have to respect and live within that covenant, and that it will the responsibility of the courts in the last resort to ensure that they do.
That brings me to the judiciary. This is not the time to go into detail; I can make only three or four general points. The first is the most important. It is that absolute confidence in the independence of the judges will be crucial in the working out of the new arrangements. That will have to work in two ways. The public must have complete confidence in the independence of the judges from pressure of any kind at the instance of those over whose actions they will have to adjudicate. And the judges themselves must have complete confidence in their independence if they are to do their job properly. Where devolution issues are raised the courts and tribunals before which they are raised will be brought more than ever before in Scotland into the arena which until now has been reserved for politics and the legislature. So independence from pressure from both the executive and the legislature will be essential if the covenant with the people is to be upheld.
The second point is related to the first. It will be necessary to look very closely at the provisions in Clause 89 about the appointment and removal of judges. We must ensure that what is enacted there will provide the best possible arrangement. In the past, this was left to practice and convention. Nothing was written down. Now we are to have a code for dealing with these matters. That is right and necessary, but the code will need to be complete and it will need to guarantee independence. The arrangements should be entrenched so that they will not be capable of being altered, or even modified, by the Scottish parliament. And the system for removal will need to take account of the protections which are available under convention law to ensure fairness and due process to the individual. As the Bill stands, the prospect of a challenge in the courts by a judge to his removal on convention grounds cannot be dismissed as fanciful. The position of the sheriffs, for whom a procedure for removal already exists in the Sheriff Courts (Scotland) Act 1971 but who are not mentioned in this respect in the Bill, will also have to be clarified as they, too, may have to deal with devolution issues.
The third point relates to the procedure for judicial scrutiny, including the provisions for references and appeals to the Judicial Committee of the Privy Council. Some of this ground is already being covered in the debates on the Government of Wales Bill. But in the context of a Scottish parliament which will enact primary legislation, the importance of getting these arrangements right is absolutely paramount. For example, I hope that Ministers will give consideration to increasing the number of holders of high judicial office in Scotland who are made Privy Counsellors. We must recognise that at present the only Scottish judges who are made Privy Counsellors and who become members of the Judicial Committee by virtue of their judicial office are the Lord President of the Court of Session and the Lord Justice-Clerk.
In England and Wales, and in Northern Ireland, the position is different. All members of the Court of Appeal are made Privy Counsellors on their appointment to the Court of Appeal. In the result, there is a large pool of serving and retired judges in England
The ultimate safeguard in any constitution is the separation of powers as between the legislature, the executive and the judiciary. The part to be played by all three branches is brought under scrutiny in the Bill. Perhaps for understandable reasons, the third branch, the judiciary, received little attention in the debates in another place. I know that that will not happen in your Lordships' House and I look forward to the examination of this part of the detail during the remaining stages of the Bill.
Lord Sanderson of Bowden: My Lords, despite my anxieties about the huge constitutional change which the Bill brings about, I must try to be constructive and confine my main remarks to three aspects of the Bill which I believe will cause trouble and need to be examined. I was pleased to hear the Minister say that he would be open-minded when considering points as the Bill goes through the House and will not resort to what I would call "resist tactics" all along the line.
As a result of the Bill being enacted, the structures of our UK constitution will never be the same again. Implicit in that remark is that in the Government's eyes change will be for the better. I have to say that it will be for better or worse, richer or poorer, for longer than any of us will live. As has been said so often, the referendum result was decisive and clear. However, what is not so clear is whether the support for the Union in Scotland is as clear cut as true unionists such as myself would wish. This is the challenge which all three unionist parties in this House must face in Scotland in the years ahead.
The Government, having passed this Bill, cannot walk away from the knock-on effects in the United Kingdom of lopsided arrangements which have brought about the West Lothian question. It will have to be addressed if not by this Government then by a successor in the future. Being constructive, I hope that the Minister will see sense in instituting a review of the appropriate functions and powers of Scottish MPs at Westminster after the Bill has been passed and publish it during the course of this Parliament. If that does not happen, I believe that they will rightly stand accused of putting the cohesion of the United Kingdom at risk.
The noble Lord, Lord Steel, said that there was no answer to the West Lothian question. However, like my noble friend Lady Young, I believe that that is not an excuse for not trying to find a better solution than we have at present. Having had experience as chairman of
The first issue of concern in the Bill, which the nationalists would have no difficulty in puncturing, is the concordat arrangement for the Scottish parliament in dealings with Europe, particularly in farming and fishing, which for some years I had the honour to represent in the Scottish Office. As the Minister knows, fishing is a very complex issue. It is more important in Scotland as to its size than it is south of the Border. So our Scottish voice is very important in the Council of Ministers.
While the Ministry of Agriculture takes the lead, it is not always easy for territorial Ministers--I am sure the Minister will agree with this--albeit from the same party, to reach a united view in order to put their case. I suggest that that will be even more so if the Scottish parliament and UK Ministers represent different parties. If there is no statutory framework governing Scottish participation in the Council of Ministers on those subjects, what is to prevent the National Farmers' Union of Scotland or Scottish fishermen's federations and others bypassing the Scottish parliament and dealing direct with the lead Ministry? If that were to happen, I believe that we should be handing to the SNP remarkably good ammunition and we must do our best to ensure that that does not happen.
Secondly, the Bill is not sufficiently explicit on tax-raising powers. As has already been said by my noble friend Lady Carnegy of Lour, the Institute of Chartered Accountants of Scotland has written to many of us suggesting that it is concerned about how Part IV is meant to interact with the basic rate of income tax and other parts of the system. It says:
I hope that in Committee, we shall consider those matters and in particular the view of the Inland Revenue, as I understand it, that it would prefer the SVR to be treated as a levy rather than as at present an extension of the basic rate tax. Why on earth did the Government abandon the 183-day rule on residence for something far more obscure and difficult to comprehend?
Scottish industry is watching developments most closely in those areas as the success of this parliament is so vital to its survival. It will no doubt be encouraged by the assessment of the noble Lord, Lord Steel, that real economic success--or did I hear the word "boom" mentioned?--may come as a result of the new parliament. But I have some doubts and was somewhat alarmed by statements from another place from the Liberal Benches which said that the funding settlement gets us off to a good start. However, we shall have to revisit that issue.
There is widespread talk in Scotland of the Scottish parliament, either directly or indirectly through local authorities, raising such taxes as the tourist tax--I think Councillor Geddes mentioned that--a local sales tax and higher business rates. I, for one, worked extremely hard for several years to try to bring down those business rates in line with England. We succeeded because a lot of money from the Scottish block had to go into that. But I do not regret a penny of it because we in Scotland, in industry, can compete on a level playing field with those south of the Border. Woe betide any government, whether in Scotland or at Westminster, who try to undermine that arrangement because the net result will be that industry in Scotland will suffer and some of it could easily move elsewhere.
As I understand it, as presently drafted, the Bill does not prevent extra taxes being levied if 3p does not raise the necessary sums. Furthermore, it does not prevent additional revenue being raised through local taxes. I hope that those matters will be studied carefully in Committee.
I am in total agreement with the noble Lord, Lord Hughes, and, surprisingly the noble Lord, Lord Kirkhill, on the question of the unicameral Scottish parliament. It may be because they, like me, have had to pick up the pieces from the other end of the corridor as regards legislation on several occasions. I cannot conceive of legislation coming from a unicameral Scottish parliament which will be any different from that which came from the other end of the corridor, from whichever party is in office. I hope that this matter will be looked at. I know that there is no easy solution. I was extremely impressed that the noble Lord, Lord Hughes, had taken the trouble to find out what happened in Norway to see whether a solution could be found.
The most important thing that we must do is to try to make this Bill better than it is. I hope that we shall succeed. I hope that the Scottish parliament will live up to the people's great expectations of it. Like my noble friend Lord Mackay of Ardbrecknish, I hae my doots but like a good marriage it will take hard work to make it work by those who really truly believe in the Union.
The Earl of Lindsay: My Lords, in view of the long list of speakers, I shall confine myself to one principal issue. It was an issue raised by the Minister in his opening remarks. But despite the assurances that he sought to give us then, it remains a concern for my noble friend Lord Mackay of Ardbrecknish and other noble friends and noble Lords who have spoken since. I refer to the policy formulation and decision-making processes which will attach to agriculture, fisheries and environmental policy in Scotland after this Bill is enacted.
I should remind the Minister that concerns expressed by my noble friends and others during the debate are felt also by various organisations in Scotland. It is undoubtedly an area where more reassurance and clarity is required.
Annex C of the very useful guide to the Bill points out that the Bill reserves all EU matters to Westminster, while at the same time, the new Scottish Ministers will lose the formal role which they currently exercise as UK Ministers in the surrounding policy-making process.
Thus as regards agriculture, fisheries and the environment, Scotland may well be gaining legislative competence and no doubt there will be opportunities where that new competence can be put to very good use. In opening, the noble Lord, Lord Sewel, welcomed the prospect of local solutions to local problems; and so do I. However, some of the very real problems which exist in those areas and their respective solutions are far from being local.
As regards the interest of Scottish farmers, fishermen and all those with an interest in Scottish environmental policy, the principal policies and measures which the new parliament will implement will not be initiated, negotiated or decided by Scottish Ministers or a Scottish parliament, but they will be initiated, negotiated and decided through a process that no longer has any formal role for Scottish Ministers.
The loss of formal competence in UK policy matters and EU negotiations will be a high price to pay. Neither the opening remarks of the Minister nor Schedule 5 provide much guaranteed comfort in that respect.
I regret that the future input of Scottish Ministers to the meetings and deliberations of EU Councils of Ministers will at best be rendered ambiguous. Along with many other Scottish Office Ministers in this House, many of whom have spoken already in the debate, while I was the agriculture and environment Minister, I attended more than a dozen agriculture Councils and four or more environment Councils. Although I was a Scottish Minister, my status as a UK Minister enabled me to speak regularly during the formal Council proceedings. Such occasions sometimes reflected agenda items that were of particular interest to Scotland, but that was by no means always the case. For all or most of two Agriculture and two Environment Councils, I was the only UK Minister attending. I thus led for the United Kingdom on the entire agendas and spoke for the UK on them as a Scottish Minister. Will that be possible in the future? From the Minister's opening remarks it appears that it will clearly not be, as he said that UK Ministers would always lead at EU Councils of Ministers. In future, Scottish Ministers will not be UK Ministers; in other words, they will not be Ministers of the Crown.
The Minister approves of the brevity of the reference in Schedule 5 to those areas in that he feels that it will deliver flexibility. However, brevity may also deliver uncertainty in such areas. Although it may sound far-fetched to some, if there are different parties in government both north and south of the Border it could well be that Ministers from both sides would be pursuing very different policies. Therefore, it is possible that the UK Minister in London could actively seek to prevent a Scottish Minister from attending a certain Council of Ministers. He may fear parallel press conferences from different Ministers in the UK preaching different messages on the same issues.
The latter are not nit-picking questions, because EU policy has such an immensely significant impact on Scottish agriculture, fisheries and environmental concerns. Rightly, therefore, it is the Scottish Ministers who currently decide when they want to go to Brussels, which Councils they wish to attend, whether or not they want to attend inside the Council chamber and whether, with the agreement of fellow UK Ministers, they actually want to speak. At present, Scottish Ministers are in no way confined in either their appearance or indeed in their movements during Councils of Ministers. That is an important prerogative that Scottish Ministers should retain. During later stages of the Bill, I hope that we will receive some reassurance and clarity from the Minister in that respect.
As has been said by various other former Ministers who have had experience of such Councils, there is often tension between Scottish Ministers and their Whitehall colleagues at these Councils, even when Scottish and London Ministers are of the same political party. We must make allowances in the future for the fact that those tensions might be very much worse where Ministers from either side of the Border come from different parties.
The current ability for a Scottish Minister to attend in his own right and of his own volition is, I believe, important for two further reasons. First, there is the fact that the haggling and late night horse-trading that an EU Council decision will often require can leave pre-arranged policies in tatters. The pre-agreed negotiating positions are unavoidably subject to adjustment and compromise. According to my first-hand experience, such last minute alterations can have significant implications for Scottish interests. In addition, there are also useful opportunities for Scottish Ministers to pursue valuable lobbying and diplomacy
I do not want the advocacy of Scottish interests in Europe by Scottish Ministers in charge of agriculture, fisheries and the environment to be side-lined. Therefore, I derive no reassurance from the fact that, despite the innumerable hours that I spent in and around Council meetings, I never once met--nor, indeed, did I ever hear any reference to the presence of--a Minister from Catalonia, Bavaria or from any other devolved region. I do not want Scottish Ministers to be, as it were, reduced to a silent and non-speaking status.
I shall conclude with a brief reference to three other points. The first point is one which no doubt will be clarified as the Bill progresses. I seek clarification regarding the proposed devolution of legislative competence for food standards and the relationship that is envisaged between the Scottish parliament and the Food Standards Agency. My second point is particularly appropriate for the Minister. I believe that the Bill offers a very good opportunity for an explicit reference to the promotion of sustainable development in Scotland through the powers and procedures of the new Scottish parliament. I accept the argument that it is implicit, but I also recognise the fact that Scotland has often taken the lead in the past in such matters. Indeed, it was Scottish legislation that first included sustainable development on the face of a UK Act. I believe that there is good reason for Scotland to take the lead once again, and to do so to its own credit and advantage.
Finally, I turn to a point which has been well covered by various noble Lords; namely, the extent to which single chamber government can incorporate the same kind of scrutiny, revision and counter-balance in its operation as a second chamber would normally provide in most other governmental arrangements. I look forward to hearing the Government's response.
Lord Hogg of Cumbernauld: My Lords, like my noble friend Lord Hughes of Woodside, I have expressed occasional sceptical views in the past about certain aspects of devolution. The fact is that I have previously questioned such matters, but I am now satisfied that what the Government propose adds up to good legislation. Of course, it is a Bill which results from a long-standing aspiration of the Labour Party and the people of Scotland, as has been said repeatedly. Indeed, it received massive support in the referendum.
The Bill also has the support of all Scotland's great institutions, including the Church of Scotland and the Scottish Trades Union Congress. I mention those in particular as they are the two mass membership organisations in Scotland today. Devolution is supported by all the political parties that are represented by election at Westminster and in the European Parliament.
I believe that how our people are governed is a matter upon which consensus should be sought among all Members of this House and the other place, as well as the political parties in the country. If we can agree on that, as I believe we have in the past, we underpin the political stability of our country which has been such a positive factor in our long history. I support the Bill because I believe the country is ready for another advance in democracy. Our structures of government are not set in stone. They have to change and develop. The judgment we have to make is how far-reaching change should be and that what is done is always with the consent of the people. I believe therefore that this Bill is the right measure.
The Bill is about extending democratic control over those measures already administratively devolved to Scotland. The powers and functions that are properly the responsibility of the United Kingdom are retained.
The Bill recognises the right of the Scottish nation to insist on the devolution of, and control over, those matters that have always been the preserve of Scotland through the terms of its treaty with England. The Scots have preserved their right to determine their own system of education which was developed out of events having their origin in the Reformation. The Scots want control over health and over social policy including law and order. The Bill serves those ends and strengthens historic commitments.
The Bill brings government closer to the people. In doing so it reinforces an essential quality in the make-up of the Scots that authority is derived from the will of the people and from nowhere and no one else. I told the General Assembly of the Church of Scotland last month that such principles were the very stuff of being a Scottish Presbyterian and the very stuff of being a Scot. I am a unionist. I recognise the great benefit of the Union over the past three centuries. The Labour Party is unionist and this Bill seeks only to devolve existing power. I believe the House understands very well the relationship between the parliaments. Time does not permit me to reiterate the arguments.
I am proud to be a Scot. I am a true patriot but that is very different from being a nationalist. I, too, want to say something about Scottish nationalism because the fear is often expressed by the opponents of devolution--we have heard much of that today--that this Bill will lead to separation.
Nationalism seems to me a small idea. The Scottish variety is no different. My right honourable friend George Robertson said it had a darker side. We know that to be true. Nationalism is exclusive. Its bottom line is surely that it says to minorities, "You are not one of us." That fact is expressed today in many of the former communist countries of eastern Europe with tragic consequences.
I do not believe such things could occur here, but there have been sad and unacceptable happenings in Scotland, not, I stress, at the hand of the SNP but as a consequence of the licence given to excesses by the rise of a nationalist ethos. Disparaging the English, even hating the English, has been fostered by films like "Braveheart". It was meant as entertainment--it was supposed to be cowboys in kilts--but it has been used to build a nationalist ethos.
In recent times there have been excesses that have horrified all decent people in Scotland. Those events, one tragic, are well documented in an article by Lawrence Donegan in the Scotsman of 6th June. If Members of your Lordships' House read the article they will understand the grounds for the deep worries and concerns many of us feel about nationalism's darker side. As I said, nationalism is a small idea not worthy of the Scots.
But, of course, there is worry about opinion polls. My right honourable friend the Secretary of State for Scotland made the point that when the Bill is implemented the arguments of the Scottish nationalists, and their appeal, will diminish. However, I am not inclined to take advice from the Conservative Benches about opinion polls because in real polls the Conservative Party in Scotland has lost all its seats. However, all the seats held by the Scottish National Party are seats formerly held by the Tories. Someone must explain to me how Conservatives and unionists can become nationalists. I have never understood that. However, that is what has happened. I do not think that those on the Benches opposite should give us advice about shifts in public opinion or what that may mean. The Bill will not lead to--
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