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1.51 pm

The Lord Bishop of Derby: My Lords, in a short time I just want to give a couple of headlines from the grass roots, where I work in this area with people in Derbyshire. First, I want to underline the point made by the noble and right reverend Lord, Lord Eames, about the scale of this. My contacts in the police force in Derbyshire assure me that the scale is much greater than anything that is admitted on the surface in the strategy, so there is a real question about how we are going to resource the strategy that is on the table if there is much greater need than has been identified. Even in Derbyshire, even last week, young women from eastern Europe have been rescued from a small market town where people are being trafficked by international gangs. Very young Chinese girls have been rescued from brothels. People in the city of Derby tell me that at the local sexual health clinics the number of young women in the trafficking scheme who are under 18 is increasing dramatically. The scale is a really big issue.

With increasing demand, there is the problem of making a proper response. In Derby we have Safe & Sound, which is an excellent organisation working with many people being trafficked. The local authority

2 Feb 2012 : Column 1710

has just removed two people who have been seconded to them, because of the cuts, and it also asks how the police are going to fulfil their role when cuts are being made in police resourcing.

My final point is that we need to see this very much as a moral issue. My contacts in the police force are horrified to see human beings treated by commodities-just being sold. That is a gross moral issue, not just about supply but about demand. There is obviously enormous demand to take advantage of sexual exploitation. What does that say about moral standards and understanding of sexuality in our society? What does it say about a lack of discipline and taking other people seriously as human beings? I ask the Minister that if we withdraw RE from such a central role in schools, who but the great religions is going to provide any moral framework to give people guidance about sexual behaviour in our society?

1.53 pm

Baroness Jenkin of Kennington: My Lords, I too congratulate and thank the noble and right reverend Lord on and for securing the debate. Trafficking of adults and children, as is clear from the debate so far, is a really important issue that we must address. I commend the Government for the action that they have taken in fighting against human trafficking this far. In particular, I wish to mention three key steps that they have taken to address modern-day slavery. First, the release of Human Trafficking: The Government's Strategy in July 2011 was an encouraging move in setting out the Government's plan of action to tackle this trafficking. Secondly, the Government have introduced primary legislation to bring about compliance with the European directive on human trafficking through amendments to the Protection of Freedoms Bill, currently on Report. This action is most encouraging. Thirdly, as the letter to my noble friend Lord McColl demonstrates, the Government are actively considering how to make changes to secondary legislation to complete the process of meeting the directive's requirements. I thank the noble Lord, Lord Henley, for his commitment to the fulfilment of the directive in bringing forward these legislative measures.

Although these achievements should be rightly celebrated, there is obviously still much more to be done. While I recognise that there is no need to introduce a system of guardianship for trafficked children or an independent national rapporteur in implementing the directive, I hope that the Government will not dismiss any opportunity to improve our care for victims in these areas so that Britain can lead the way. It is in fact appropriate that we find ourselves discussing this issue today as, only yesterday, the BBC reported the plight of British men who are trafficked out of the UK and forced to work as slaves on construction sites throughout Europe. At least 30 victims have been identified to date, but it is believed that that number is just the tip of the iceberg. I know that you will agree that stories such as these ought to spur us into swift action to address these awful human rights abuses.

I close by saying that I look forward to supporting the Government as new laws are introduced that will further protect all individuals who are subject to this violent injustice.

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1.56 pm

Lord Anderson of Swansea: My Lords, I welcome the Government's response to the Bill proposed by the noble Lord, Lord McColl, and their plans to bring the UK into full compliance with the EU directive.

I make three quick points. First, I urge the Government to continue to facilitate the involvement of the voluntary sector in the care of trafficked victims, particularly children, and to look at the practice in Wales following the guidance issued last year, in addition to looking at the introduction of an anti-human trafficking tsar in England, as already happens in Wales. Perhaps that is the national rapporteur. Secondly, I urge the Government to respond positively to the recommendation in last month's report of the Children's Commissioner for England, Landing in Dover, on the opportunity for trafficked children to instruct a legal representative, which is in the same spirit of Amendment 57 to the Protection of Freedoms Bill, which the noble Lord, Lord McColl, seeks to move next Monday. I hope that the Government will respond positively to that.

Finally, as a Member of the Parliamentary Assembly of the Council of Europe, I understand that the Government will shortly receive the draft GRETA report on the UK's conduct with respect to the Council of Europe convention on trafficking. Will interested Members of this House be able to have sight of that draft report and an opportunity to comment? As the current chairman of the Council of Europe, we in the UK surely have the opportunity to be a model and show leadership in this area of great social concern.

1.57 pm

Baroness Doocey: My Lords, I want to concentrate on the children who are trafficked into the UK. One key problem is the points of entry. Children as young as 12 may travel unaccompanied from France and Belgium via Eurostar, provided that they have a form signed by a parent or guardian, listing who will be collecting them when they reach St Pancras. The problem is that there are no checks at all on who signs the forms, no facilities on the trains-the children are not supervised-and no controls when they arrive at St Pancras, so the entire process is completely and utterly meaningless.

I call on the Government to do three things which would not cost much money at all but could make a very big difference. First, we could ensure that border staff check the identity of the parents or guardians before allowing unaccompanied children to board the Eurostar. This could easily be done by making it a requirement for parents to turn up with their passport and/or with proof of guardianship. Secondly, we should persuade Eurostar to provide a dedicated space in one of their carriages for unaccompanied children, and for this to be supervised throughout the journey. Finally, we should ensure that a small room is provided at St Pancras International where children can wait to be collected by a nominated person, who must also produce their passport to prove their identity.

If these three simple measures were put in place, it would go a long way to alleviating the suffering of many of these unfortunate victims of child trafficking.

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2 pm

Lord Bew: My Lords, I, too, thank my noble and right reverend friend Lord Eames for securing this debate. As he made clear in his remarks, this problem has a long-term historical and international context, something that anybody can read in the more grim passages in Dostoevsky's Notes from Underground, published in 1864. My noble and right reverend friend also referred to the Irish context, which, as he made clear, is also important to the United Kingdom. I would like to follow in that spirit. Just this week the Italian judge Maria Grazia Giammarinaro, who is the OSCE special representative on human trafficking, referred to what she called a new trend involving Ireland: the trafficking of people from Bangladesh and Pakistan for labour exploitation, particularly in agriculture, construction, hotels and restaurants. Given the porous nature of the border within Ireland we have to bear these things in mind, as my noble and right reverend friend has already indicated.

I want to say two very specific things about the Irish context. Thanks very much to some excellent journalism by writers such as Henry McDonald of the Guardian, there is a good public opinion on these questions but I have one technical question for the Minister. Will the Minister confirm that after the government amendments on human trafficking to the Protection of Freedoms Bill, Sections 57 to 60 of the Sexual Offences Act remain unchanged in relation to the provision for human trafficking in Northern Ireland, and that these will be in place until the Northern Ireland Assembly introduce their own provisions on human trafficking for sexual exploitation? I am worried-I hope it is a false worry-that we may have created a gap by the recent benign move that the Government have made.

2.02 pm

Lord Rogan: My Lords, I, too, congratulate the noble and right reverend Lord, Lord Eames, on initiating this debate. As he said, our nation can rightly take pride in its pivotal role in abolishing the worldwide slavery trade during the 19th century-a decision taken primarily with regard to the force of the moral imperative to do so. Yet it saddens me that the modern guise of slavery, human trafficking, is on the rise in this country and across Europe. Human trafficking is a vile and foul crime that condemns its victims to the most base and inhumane of treatments, be they men, women or children.

We are all aware of stories from across the kingdom of trafficked people being subjected to abuse of a kind we thought we had largely dispelled from the civilised world. In Northern Ireland, which is hardly a mainstream location for international criminal gangs, the police have rescued around 75 victims since 2009, many connected to the sex trade. As a senior PSNI detective superintendent told the Northern Ireland Policing Board last December, this figure is just the "tip of the iceberg". There is a need for the United Kingdom to take controlled and concentrated measures to intercept those gangs, both from home and overseas, who are trading in this human misery to supply demands for cheap labour and-

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Baroness Stowell of Beeston: My Lords-

Lord Rogan: My Lords, the clock started at two minutes.

Baroness Stowell of Beeston: I am so sorry. I apologise to the noble Lord.

Lord Rogan: Can I start again at two minutes? While tackling this supply may require greater resourcing for the UK Border Agency and the police forces throughout the kingdom, tackling demand is a more difficult issue. It strikes me that we need to do more to drive home the message that those who are abusing trafficked people, particularly in the sex trade, need to be aware that they are complicit in an offence which is akin to slavery. They should face severe consequences for their actions but unfortunately, for too many, this is currently a crime without fear of consequences. That needs to end.

For instance, customers who pay for sex with those who have been trafficked-people who are clearly under duress or false pretences-should face the prospect of being charged with rape. As the law stands, successful convictions would be difficult to secure but it would certainly help put out a clear message that society will not turn a blind eye to this problem. The same moral imperative which lay before Parliament to eradicate slavery in the 19th century lies before this generation: to do all that it can to eradicate human trafficking in this world.

2.05 pm

Lord Sheikh: My Lords, I welcome the opportunity to speak in this debate as I have a long-standing interest in human trafficking. Some 200 years since the abolition of slavery, it is depressing that there is a continuing need to confront this evil. I very much appreciate the efforts made by the Government to address this problem, and I support the human trafficking strategy launched last July. The strategy focused on raising awareness of trafficking and ensuring victims are safeguarded and protected. We need to redouble our efforts to help victims: this needs a local, as well as a national, focus. I commend the work of local anti-trafficking groups. We cannot hope to overcome this crime unless we are successful in raising the profile among communities.

I wish to speak about the effects of trafficking on children and young people who are its victims. In doing so, I congratulate Professor Jenny Pearce of the University of Bedfordshire and the ongoing commitment of the NSPCC. Professor Pearce's research highlights considerable variations in practitioners' understanding of the meaning of trafficking and problems with the delivery of child-centred practice. Trafficked young people are especially vulnerable, and I welcome the guidance relating to child trafficking issued last October. Those responsible for their welfare, as well as those tasked with law enforcement, need to be equipped to respond fully to their specific, individual needs. We need a system whereby there is adequate signposting to national agencies and professionals providing appropriate support. We must ensure that vulnerable

2 Feb 2012 : Column 1714

children are protected. Their safety and welfare ought to be prioritised. I look forward to the Minister's response about what more we can do.

2.07 pm

Baroness Goudie: My Lords, I congratulate the noble and right reverend Lord, Lord Eames, on arranging to have this short debate. As short as it is, it is very important to raise the profile of human trafficking. I declare that I am a pro bono member of the Vital Voices Global Partnership board, and chairman of the Women Leaders' Council of the United Nations. I congratulate this and the previous Government on what they have done in taking the lead on human trafficking globally but today, in the few minutes that I have, I will concentrate on the question of forced labour. That is now becoming a huge issue in this country in the agricultural trade, in the diplomatic service and in the building and construction industry.

I ask the Government and the Minister to consider looking at the Athens protocol, which was agreed two years ago, and setting up a government inquiry, like the Davies report, to persuade companies to sign up to the Athens ethical agreement. This would mean that companies would look at the source of their goods and the source of their labour. If this was signed up to and the BIS department was involved in this, we could help to eradicate the question of forced labour in the whole of the United Kingdom. This is an area where we have very few prosecutions-and where we have them, they are not very large. There are sometimes very small fines. We also have to remember that no trafficked person lives a very long life and that this is a cash industry. That is why the Government now have to take a longer stand on forced labour, in particular, as I said, in the agricultural trade, in diplomacy and in the building trade.

2.09 pm

Baroness Hamwee: My Lords, the number of speakers today may reflect an increasing awareness of trafficking and modern slavery. I have heard it said that that awareness is somewhere like where domestic violence was 20 years ago. I stress that because awareness must be the foundation of tackling the issue. It was only when I was in the middle of one of my own speeches at a conference that I realised that children whom one often used to see at major road junctions in London advancing with a soapy squeegee were probably themselves slaves.

I mean awareness not just on the part of the general public but right through the many relevant agencies, down to the very front line. It always seems quite difficult that the UK Border Agency, whose job is to protect our borders, which is fairly close to keeping people out, needs to be particularly sensitive to possible victims of trafficking. There is something of a disconnect there.

The sensitivity of all of Government and society must extend to what is needed for the victims to recover. We are the host country, and in many cases the people who are trafficked here think that they are coming to a better life. In some cases the trafficker

2 Feb 2012 : Column 1715

thinks so, too-the mother living in poverty in Africa who is sending her daughter to live with an auntie in London.

I have one point regarding the care of victims, and I appreciate that there is a new consultation paper on the protection and support of all victims. The noble and right reverend Lord, Lord Eames, mentioned 45 days, but that may be far too short a time for a traumatised young woman, say, to decide whether she wants to return to her own country. Within 45 days, she may not even have got to the point where she can discuss her own situation.

Trafficking is a huge-scale crime and big business with individuals at its heart, and they need both justice and care. As my pumpkin has not quite arrived, I have time to thank the noble and right reverend Lord, Lord Eames, for introducing this debate.

2.11 pm

The Earl of Sandwich: My Lords, for nine years I was a council member of Anti-Slavery International. I heard of many cases of slavery in north Africa but there are now cases in the UK and the rest of Europe that show the depths to which our own criminal gangs can sink. We have heard already that British victims have recently been trafficked in Europe by rogue gangs that force them to work for long hours in filthy conditions for little or no payment.

Some 10 or 12 years ago, the Home Office showed that at an absolute minimum there were hundreds of children and women being trafficked; now we are talking of at least tens of thousands. The Government have changed their mind and opted into the new EU trafficking directive, but we have only a year in which to comply. As the noble Baroness, Lady Hamwee, has just said, the Children's Society says that child protection is being sacrificed to immigration rules. Will the Minister assure me that the legal framework will be revised for trafficked children to conform to international standards and that these children are not going to be treated as immigrants?

There is no single monitoring body in the UK tasked to look at the scale, nature and trends of human trafficking. I suggest, with Anti-Slavery International and others, including my noble friends, that an independent watchdog responsible to Parliament would be best placed to research and document that abuse. The Government may say that the National Crime Agency will have a key role in building on the existing arrangements once it is established next year, but without an independent monitoring system we cannot be sure how effective and co-ordinated its work will be.

2.13 pm

Lord Rosser: My Lords, last month the Government introduced amendments to the Protection of Freedoms Bill to meet some requirements of the recent EU directive on human trafficking. However, they do not yet appear to be addressing the disappearance from the system of child victims of trafficking in this country. Some 32 per cent of identified child victims of trafficking went missing from care between 2007 and early 2010.

2 Feb 2012 : Column 1716

Since Articles 12 and 13 of the EU directive state that signatories must provide assistance, support and protection for child victims of trafficking, will the Minister say on what basis, and in the light of what consultations with which organisations, the Government have decided that the UK currently complies with those two articles? What is the Government's response to calls by charities such as CARE and ECPAT UK for the introduction of a system of guardianship for child victims of trafficking?

The directive requires that the UK establishes a national rapporteur to independently monitor the implementation of the directive. Is it the Government's intention to give this responsibility to an individual or a committee independent of government in order to ensure both effective oversight of the implementation of government policy on trafficking and accountability?

The Government have indicated that they believe parts of the directive can be implemented in full through secondary legislation and through operational measures and routes. Not everyone will share the Government's view on that point, but we will wait to see the provisions of any such secondary legislation.

I thank the noble and right reverend Lord, Lord Eames, for securing this debate. We welcome the progress that has been made in combating human trafficking, but it is clear that there is still much to do.

2.15 pm

Earl Attlee: My Lords, I congratulate the noble and right reverend Lord, Lord Eames, on securing a debate on this important matter and I thank him for raising it today with his usual skill and measured tone. I broadly accept your Lordships' analysis of the situation. The Government certainly share the noble and right reverend Lord's forcefully put view that human trafficking is a horrendous crime that needs to be addressed in a systematic and co-ordinated way. Right at the top of that process is my right honourable friend the Home Secretary, and I can assure noble Lords that she takes this matter very seriously.

As noble Lords have rightly observed, estimating the numbers of adults and children trafficked into and within the UK is difficult owing to the hidden nature of this criminal activity, but through the national referral mechanism we are starting to gain some valuable data about the scale of the problem. We know how many victims are referred. What we do not know is how many trafficking operations were successfully deterred or disrupted by the policies of this Government and the previous Government. However, for those victims we do indentify, our systems are now much more able to support them, according to their individual needs. I do not accept that Ministers underestimate the scale of the problem just because we cannot accurately measure it.

In answer to the right reverend Prelate the Bishop of Derby, I agree that this is a moral issue. I am sure that Ministers would still not be happy even if we had reduced the numbers to only 100 people being trafficked. We would not stop until we could get it to almost zero. I assure the House that this Government continue to use all resources at their disposal to identify, prosecute and convict traffickers, often working with other countries to bring the perpetrators of this crime to justice.

2 Feb 2012 : Column 1717

The noble Baroness, Lady Goudie, talked about the problem of forced labour within the UK. I can assure her that the Government are well aware of that problem.

We continue to review our approach to trafficking to ensure that we remain one step ahead of those seeking to exploit our borders. My noble friend Lady Jenkin raised the problem of men being trafficked out of the UK to places such as foreign construction sites. I was not personally aware of this but I will discuss it with my officials afterwards.

Free movement between the UK and the Republic of Ireland continues to be of immense importance to the economic, social and cultural well-being of both countries. I can assure noble Lords that the UK and Irish Governments are working in partnership to prevent abuse of the common travel area by strengthening its external border while preserving the right of free movement within it for those who are lawfully present. That is enforced by the UK Border Agency and the police carrying out intelligence-led operations to target the potential abuse of the CTA and to identify those who would otherwise seek to avoid UK controls.

Many noble Lords have expressed concerns about the vulnerability of children seeking to travel on Eurostar. Children and any accompanying adults looking to travel to the UK by Eurostar are routinely interviewed at our juxtaposed controls in France and Belgium. Officers seek to establish the relationship between children and the adults who are accompanying them or meeting them on arrival in the UK before allowing them to leave the juxtaposed border control. If trafficking is suspected, they are immediately reported to the appropriate French or Belgian authorities.

The UK Border Agency closely monitors all trains arriving from Brussels and Lille and carries out detailed checks on passengers where it is suspected that a passenger has evaded the juxtaposed controls. Full ticket controls are routinely mounted at St Pancras, Ebbsfleet and Ashford upon notification of a potential passenger who is seeking to arrive in the UK with a ticket to Lille. To supplement this, multi-agency child safeguarding periodic monitoring exercises advised by Paladin are also conducted at St Pancras. We are currently working closely with our Belgian counterparts and Eurostar to resolve the underlying issues.

My noble friend Lady Doocey raised the problem of unaccompanied children. The travel documentation and letter of consent for all unaccompanied children on Eurostar services are examined by border force officers at the controls. It is important to understand that the form signed by the parent or guardian is not designed to be a reliable check in itself; rather, it is the starting point for any inquiries that might be made by the authorities as they see fit. My noble friend also asked me to give undertakings as regards this being an operational matter for Eurostar. Officers regularly contact the parents or guardians of unaccompanied children to verify the letter of consent for travel to the UK. If there is any cause for concern on the authenticity of the consent of the parent or guardian or about the reception arrangements in the UK, officers will interview the parent or guardian. If doubts persist after all appropriate checks have been undertaken, the UK

2 Feb 2012 : Column 1718

Border Agency may prevent the child travelling to the UK unaccompanied. For those children who do travel, staff at St Pancras identify unaccompanied children as they disembark and escort them to the concourse to ensure that the sponsor is present and is known to the child.

However, in my capacity as government spokesman for DfT matters in your Lordships' House, I have asked my officials to seek a visit by me to Eurostar at St Pancras. I would expect to include an examination of British Transport Police operations in that visit. I am sure that as a high-profile and responsible operator, Eurostar will be keen to show me first hand how it deals with the problems which my noble friend has identified.

Many noble Lords, including the noble Baroness, Lady Massey of Darwen, and the noble and learned Baroness, Lady Butler-Sloss, are concerned that we might not be compliant with the EU directive because we do not appear to have a national rapporteur. However, the UK is already compliant with this measure through equivalent mechanisms in the form of the UK Human Trafficking Centre as the central repository for data and the interdepartmental ministerial group for oversight. I believe that this meets the need identified by the noble Earl, Lord Sandwich. This equivalent mechanism is broadly in line with practice among our EU neighbours. We are aware of only two countries within the EU that have an independent national rapporteur on human trafficking-the Netherlands and Finland-and I am not convinced that they each operate in the same way. Several noble Lords have referred to the interdepartmental ministerial group. We recognise the need to work across government and we will consider how to strengthen the group to fulfil the national rapporteur role in the coming months. It is important to understand that the EU directive on national rapporteurs requires a national rapporteur or equivalent mechanism to assess trends in human trafficking and activities on anti-trafficking, and to work with civil society organisations and to report. It does not require the role to be independent.

Responsibility for the care, protection and accommodation of child trafficking victims falls within the designated responsibilities of local authorities for safeguarding and promoting the welfare of all children under the provisions of the 1989 and 2004 Children Acts. To support local authorities, we recently revised practice guidance on safeguarding trafficked children with the Department for Education, which will aid practitioners in identification and safeguarding of child victims of this horrible crime. Once a child is placed in care, a care plan is drawn up by their allocated social worker bringing together a range of information and support. The social worker will assess suitable accommodation, educational support and other services based on need. This care plan is regularly reviewed by an independent reviewing officer to ensure that the child's needs are being met. This will include stability, safety and emotional well-being. IROs are also able to assist the child in obtaining legal advice. My noble friend Lord McColl of Dulwich talked about his important amendments to the Protection of Freedoms Bill. I am sure that my noble friend Lord Henley is looking forward to responding in due course. New

2 Feb 2012 : Column 1719

guidance for IROs makes it clear that every child has the right to be supported by an advocate. The advocate must accurately represent the child's wishes and feelings, irrespective of personal views on the child's best interests.

Another key area is that of missing trafficked children, a point raised by the noble Lord, Lord Rosser, among others. Your Lordships should not underestimate the progress the Government have made on this. The first CEOP scoping report on this issue, published in 2007, found a shocking 55 per cent of trafficked children missing from their care placement, but with effective work at a local level to tackle this issue, the most recent CEOP strategic assessment showed that this figure had been reduced to 18 per cent. Local authorities such as Hillingdon, Hertfordshire and Harrow are leading the way with proactive, multi-agency partnerships to identify and safeguard trafficked children from going missing from care. Simple changes to the way they handle, for instance, a child's access to accommodation front doors, mobile phones and other issues have allowed them to make great progress in reducing the number of children going missing. The national picture is still not good enough but the figures are undeniably heading in the right direction. The new human trafficking strategy commits us to working to raise awareness of these issues locally to ensure in all areas where there is evidence that a child has been trafficked, care planning and activities to support the child must minimise the risk of traffickers reinvolving the child in exploitative activities.

As usual, where I have not been able to respond fully to noble Lords' substantive points, I will, of course, write. In summary, I can assure the House that this Government will lead the fight with our partners at all levels to ensure that our response to this crime remains an effective deterrent to drive down the number and level of people affected.

Lord Rosser: As the Minister is closing his comments, in the light of what he said about the Government's determination to fight human trafficking-I am sure that is the case-is it the Government's view that sentences for human trafficking are appropriate, bearing in mind that the average determinate custodial sentence for drug trafficking appears to be some 50 per cent higher than that for human trafficking?

Earl Attlee: My Lords, that is a detailed question on which I shall have to write to the noble Lord. An interesting problem is that it can be very difficult to secure prosecutions for trafficking. Often we see criminals being prosecuted for offences other than trafficking because it is easier to secure the evidence. I neglected to answer the question asked by the noble Lord, Lord Bew, about a possible gap in the legislation in Northern Ireland. I can assure him that we have not revoked anything and that there will be no gaps.

Baroness Butler-Sloss: Before the noble Earl sits down, I hope that I may ask one question. I do not have a copy of the directive with me in the Chamber but my recollection-it may be wrong-is that the national rapporteur or equivalent mechanism is required to be independent. Perhaps the noble Earl will check that.

2 Feb 2012 : Column 1720

Earl Attlee: My Lords, I received inspiration from the Box, saying that that was not a requirement. If I am wrong about that, I will, of course, write to noble Lords. However, the key point is that we are in line with what other European states are doing.

Baroness Doocey: I am very pleased that the Minister will visit Eurostar. I am sure he will find that he is knocking at an open door. Will he also agree to speak to the specialist agencies concerned with child trafficking that work at St Pancras and the Paladin team as I think he might get a slightly different view of the situation regarding the border controls and how the whole thing operates than he has given us today?

Earl Attlee: My Lords, I am sure that interested organisations will read this debate in Hansard. If they want to send me the right questions to ask interested parties, I will take careful note of them.

Baroness Goudie: Will the Government consider fining Eurostar for letting in trafficked people, as happens with airlines?

Earl Attlee: My Lords, I think the noble Baroness is referring to the controls imposed on airlines where the passenger does not have the correct document. I am confident that Eurostar will not willingly allow someone to be trafficked. However, we need to understand that this is an activity of those involved in organised crime who are extremely skilful at achieving their ends.

Motion to Adjourn

Moved by Baroness Stowell of Beeston

Baroness Stowell of Beeston: My Lords, I thank all noble Lords for adhering to the speaking time limit. Perhaps I may take this opportunity to apologise to the noble Lord, Lord Rogan, for interrupting him inappropriately.

Motion agreed.

2.30 pm

Sitting suspended.

Scotland Bill

Bill Main Page

Committee (2nd Day) (Continued)

2.33 pm

Amendment 22

Moved by Lord Foulkes of Cumnock

22: After Clause 14, insert the following new Clause-

"Variation of student fees according to origin of British students

In Part 2 of Schedule 5 to the 1998 Act, under Head L (miscellaneous) at the end insert-

2 Feb 2012 : Column 1721

"L8. Variation of student fees according to origin of British students

The setting of student fees for students from England, Northern Ireland or Wales studying at Scottish universities at rates different from those for students from Scotland studying at Scottish universities.


"Fees" has the meaning given by section 41 of the Higher Education Act 2004.""

Lord Foulkes of Cumnock: My Lords, it is my pleasure to move Amendment 22, which would prevent the Scottish Executive and the Scottish Parliament from imposing discriminatory fees on students at Scottish universities who are resident in England, Wales or Northern Ireland. The noble Lord, Lord Forsyth, has a similar amendment, Amendment 24. I must insist that he tabled it quite separately from my amendment and without any collusion whatever. I am saying this because his off-the-cuff comment earlier about the roadshow of the "toxic two" has been picked up north of the border and is already causing some interest. Both amendments were tabled with the same purpose.

Lord Forsyth of Drumlean: This is the first recorded occasion when the Scottish media have paid attention to anything that was going on in this House.

Lord Foulkes of Cumnock: I think that things are moving up the scale, although they are taking some time to do so. We are making a little bit of an impact there now.

I want to make it clear that in moving the amendment I am conscious of the sensitivities in relationships between Westminster and Holyrood, and between the UK Government and the Scottish Government. We have found in many of our discussions that this is a sensitive area in which we have to tread very warily, and I would hesitate to say anything that suggested that the UK Parliament was imposing its will upon the Scottish Parliament.

I say that having been a Member of the Scottish Parliament for four years. A number of noble Lords who have participated in these proceedings have also been MSPs-including the noble Lord, Lord Steel, who was Presiding Officer, the noble Lord, Lords, Lord Selkirk, Lord Watson and others who have participated, and, of course, the noble and learned Lord, Lord Wallace, the Minister who is to reply. Those of us who have been in Holyrood are aware of those sensitivities and we move with caution.

However, this Parliament has some responsibilities. The action of the United Kingdom Government in imposing very high fees precipitated this issue in the first place. I know that this is one area where the noble Lord, Lord Forsyth, and I might not totally see eye to eye. I am very pleased to see present the noble Lord, Lord Sutherland, who was a distinguished vice-chancellor of my old university, Edinburgh-not when I was a student, I hasten to add; he is not nearly that old, and neither am I. His experience and deep knowledge of the university sector will be very helpful, and that demonstrates some of the value of this Chamber.

2 Feb 2012 : Column 1722

We also have a wider responsibility for the European Convention on Human Rights and the equality legislation, as epitomised in the Equality Act. We therefore have to bear some responsibility for and take some interest in discrimination and equality. What has been not just proposed but agreed by the Scottish Executive and Scottish Government is tremendously unfair discrimination against students from England, Wales and Northern Ireland who go to Scottish universities. It really is quite disgraceful. It is astonishing, when you think of it, that students from Lisbon, Madrid or Berlin will all get in free to Scottish universities, but students from Belfast, London or Cardiff will have to pay fees.

Lord Sewel: Does the noble Lord recognise the supreme irony in the Scottish Government's position? On the one hand, they are arguing for independence, but the policy they are pursuing can be carried out only while they remain members of the United Kingdom. If they achieved independence within the EU, they would not be able to have this pernicious policy.

Lord Foulkes of Cumnock: My noble friend, who was a distinguished administrator and academic at the University of Aberdeen-he was vice-principal-has put his finger on one very important matter. In fact, he has taken away a major part of my speech. Never mind about that. It is a massive irony, as my noble friend said, that the Scottish Government are able to impose these discriminatory fees only because Scotland is part of the United Kingdom. If Scotland was an independent country, as the SNP wants, that Government would be unable to impose those fees. Students from England, Wales and Northern Ireland would be in exactly the same position as students from Poland, Germany or wherever in the European Union.

Baroness Liddell of Coatdyke: My noble friend is making a valid and important point, but there is another dimension to the issue. It is largely the Barnett formula, which taxpayers throughout the United Kingdom contribute to, that allows the Scottish Government to act in this way. We are discriminating against those taxpayers from England, Wales and Northern Ireland.

Lord Foulkes of Cumnock: My noble friend and former boss as Secretary of State for Scotland has just stolen the second plank of my argument, but she put it very well indeed. It is a serious matter, because the parents of potential students at Scottish universities from London, Belfast and Cardiff are paying money into the UK Exchequer and that money, through the Barnett formula, subsidises Scottish universities, whereas parents of students from Berlin, Lisbon or Madrid are paying nothing to the UK Exchequer. That is an astonishing position to take.

This has been recognised as an unfair anomaly and discrimination not only by Members of this House. Today's Glasgow Herald states that legal action is already being taken by Phil Shiner on behalf of Public Interest Lawyers. Let me quote directly:

"Lawyers will launch court action as early as next month to stop the SNP Government's controversial policy of enabling Scottish universities to charge English students up to £9000 a year in tuition fees while home students pay nothing, The Herald can reveal".

2 Feb 2012 : Column 1723

That action is taking place, but how much better it would be if, instead of having to defend that action-in practice, defending the indefensible-the UK Government were to accept my amendment and the Scottish Government were to agree to stop that discrimination.

To quote from the Guardian-no, it was the New Statesman, which is even better than the Guardian-the point has been made that,

"The resentment felt by English students, who will soon pay the highest public university fees in the world, will further destabilise the Union".

One wonders whether the First Minister of Scotland has an ulterior motive, because it is alienating people in England. Lots of people from south of the border, when they find out about that, say how disgraceful it is. I am glad to say that I have also been approached by lots of people north of the border who think it is disgraceful: students, parents and others who are really concerned.

The New Statesman continues:

"The growing disparity between the two countries is a reminder of the incomplete nature of Britain's constitutional settlement".

That is absolutely right, and something that I propose to deal with in other amendments to the Bill and which I have raised elsewhere. It continues:

"The UK is now neither a unitary nor a federal state and its largest constituent group-the English-feels increasingly unrepresented. For too long, politicians have complacently ignored threats to the Union; they must now act to repair our disunited kingdom before it is too late".

I say to that hear, hear. This may be being done for some positive reasons, but in my view, it is for ulterior motives as well.

I hope that we will consider passing the amendment. It is important that we send out a strong call from this Chamber, from Westminster, to the Scottish Parliament and the Scottish Executive that they should reconsider this. I must be honest: I know that one or two of my colleagues in the House of Commons, one or two here and one or two in the Scottish Parliament have had some reservations about me pushing ahead with the amendment. To them, I cite Claire Baker, who is the Labour spokesperson on education in the Scottish Parliament. When the order went through the Scottish Parliament, the Liberal Democrats and the Labour Members did not vote against it for interesting reasons. Claire Baker said:

"I remain to be convinced that the order provides the right answer"-

she did not believe that-

So there is deep disquiet. People in the Opposition in the Scottish Parliament feel that they are being given Hobson's choice: they feel that they are being forced into this. Otherwise, universities, including my former university of Edinburgh, will be squeezed even further in their income and find it more difficult. The members of the Opposition in the Scottish Parliament

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have been placed in an impossible position by the sky-high fees imposed by the United Kingdom coalition Government and by the discrimination imposed by the Scottish Administration. That pincer movement is making it very difficult for people.

Finally, I return to the main point. Whatever the detail of the argument, whatever the facts and figures-I know that the noble Lord, Lord Sutherland, and others will give more facts and figures about what is happening in the Scottish universities-it is deeply disturbing that such blatant discrimination should be taking place against students and potential students from England, Wales and Northern Ireland. I hope that the House will send that message very strongly to Edinburgh today.

2.45 pm

Lord Forsyth of Drumlean: My Lords, I speak to my Amendment 24. Just to make sure that people realise that the noble Lord, Lord Foulkes, and I agree only on some things, I respectfully remind him that it was the Labour Government who introduced tuition fees.

I remember that particularly well because the only time I have taken a Bill through this House was when the much missed late Lady Blatch was our Front-Bench spokesman. She was ill and asked me to take the Bill through the House. The rather splendid noble Baroness, Lady Ashton, who has sadly been taken from us to other duties, was leading on the Bill. I said to her, "Look, I have a problem". There was an issue about gap year students having to pay more. I said, "If you will amend the Bill and allow for gap year students, I won't waste your time and be unnecessarily difficult, but there is another thing I need you to do. I need you to help me to make sure that we do not get a vote on the principle of tuition fees"-which the Liberals were very keen to achieve-"because I'm being told by the powers that be in our party that we have to vote against tuition fees and most of the people on my side would be in the wrong lobby". So we attempted to avoid having a vote because most of my colleagues rightly recognised that the future of universities depended on having tuition fees.

This is not a debate about the principle of tuition fees. Indeed, my amendment does not mention tuition fees. The Bill is about the exercise of power-we have taken back Antarctica; we are giving other things-and it defines the powers of the Scottish Parliament. The new clause in my amendment is intended to make clear that the Scottish Parliament is free to exercise its powers, but it cannot exercise its powers in a way that discriminates against people from England, Wales and Northern Ireland relative to people in other European states. That is the real wickedness involved in what is happening now: Greeks, Germans, Poles and French all get the same deal as the Scots, but English, Welsh and Northern Ireland people do not. When I say Northern Ireland people, Welsh people and English people, this is not about nationality but about the place where you live.

As I said to someone from the BBC the other day, "You work for the BBC. You get posted to Glasgow. You've got three children who are aged, say, 14, 15 and

2 Feb 2012 : Column 1725

16 and they want to go to university. You get rung up by the director-general and told that you have to move to Manchester. That could cost your children £100,000 in fees because they will no longer be eligible to go to some of the best universities in the country"-I declare an interest as a graduate of St Andrews-"such as St Andrews, Edinburgh or Glasgow for free. The moment you move to England, they will have to pay. This is just a complete nonsense. Of course, you could accept a job in Madrid, or Paris or anywhere else in Europe-but not in England, Wales or Northern Ireland". It is an absurdity.

The real wickedness comes when you say in a reasoned way to Alex Salmond, "This is not fair". The response you get is: "If Scotland is independent, the English will get the same deal as the Greeks, the French and the Germans". That is not good enough. I hope that my noble and learned friend is not going to get up and give the same, lame arguments about how this is what devolution is about. No, it is not. Devolution is about making decisions in Scotland in the interests of Scotland. It is not about discriminating against people from the rest of the United Kingdom in a way which was never envisaged during the passage of the Scotland Act through this House.

I am sorry that the noble Lord, Lord McConnell, is not in his place. Last week, when we were discussing the Bill, he came up with a brilliant image when, in trying to explain the apparently irrational behaviour of the First Minister and his separatist colleagues, he said that it is a bit like tenants who want to get a move from a bad estate to another estate: the first thing you do is upset the neighbours. This is about upsetting the neighbours, and upsetting the neighbours it is. There is real anger about this.

I stood recently in a rectorial campaign in St Andrews-I only got 900 votes, which is actually not bad for a banker and a Tory these days. The winning candidate was very good indeed. I spent a week in St Andrews with the students. There you have, side by side, students working very hard, much harder than I ever did when I was at St Andrews, in a university which has been transformed. A third of the students are English, a third are Scottish and a third are European or international. The Scottish students will pay nothing. The fees are going up to £9,000 a year and it is a four-year degree, so that is £36,000 if you are English. The European students are paying nothing. They are all working side by side.

The other thing that struck me was that St Andrews just looks the same as it did-most medieval towns do. The restaurants and the pubs are the same. The students are certainly much more focused. However, whereas in my day there were no students working in the restaurants and the bars, there now are. They need to do so in order to make ends meet. It is quite divisive and wrong to have students from different parts of the United Kingdom faced with substantial borrowing and debt, or no debt, simply because of which part of the United Kingdom they live in. I believe that this is a deliberate policy to create anger. There is genuine anger and resentment, not least on the part of those students who feel that they are being given a better deal relative to their colleague than they perhaps deserve.

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There is also anger on the part of parents. I suggested to someone who shall remain nameless who was at St Andrews with me that they might like to make a contribution to the university in its 600th anniversary year. She said, "Not on your life! Not while my children are not able to go to St Andrews without having to pay these enormous fees".

So it is quite wrong. It would be entirely appropriate for the Government to restrict the powers of the Scottish Parliament so that it cannot operate in this way on any area of policy. As the noble Baroness, Lady Liddell, a former Secretary of State for Scotland, pointed out, the Barnett formula is extremely generous. The spending per head on education is about 20 per cent higher. It really is adding insult to injury to ask the English to send more money per head north of the border on education for the privilege of seeing their children treated less generously than people from Greece.

If the Prime Minister says that he will defend the union to the last fibre of his being, here is a test. I ask my noble friend to ask the Prime Minister to look at this, and ask him seriously whether we can go on allowing this to happen. This is very timely. Hitherto, the fees have been at levels of £3,000 a year, so it would be £12,000. Now they are going up to £9,000 a year, so it is a huge imposition upon these students and is building enormous resentment. I hope that my noble and learned friend will give this some consideration.

A third party is very angry about this: the universities. I am delighted to see in his place the noble Lord, Lord Sutherland, with all his experience of higher education in Scotland. The universities are the poor mugs who have got to set the fees with this difficult and divisive position for their students, and who take all the flack for its consequences. I am not going to press this to a vote today, because I want to give my noble and learned friend time to think about it and come back at a later stage, but I hope that he will take it seriously. This is the first opportunity that we have had since the introduction of tuition fees and top-up fees to debate this matter. It is widely resented around the country. It is a deep, deep injustice which needs to be put right.

Lord Sutherland of Houndwood: My Lords, I thank my two preceding speakers for their kind remarks. I run the risk of being drawn into this love-in going on across the Benches and I do not especially wish to be, so I hope that they say something nasty about me at some point.

I support the two amendments. Neither is perfect, and they need a bit of further thought, but I particularly welcome their pairing. Amendment 22 illustrates very well the general principles implied in Amendment 24, which are what I wish to speak about. As a declaration of interest, I am a former principal of Edinburgh University. I have links with most of the universities that I will talk about, but that of course includes many south of the border that are our friends, colleagues and competitors. There is a view across the whole country on this which must be taken it account.

The problem, which has been well illustrated, is clearly the differentials in treatment of students from what is now called the RUK group-there is now a formal title in Scotland for the "rest of the United

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Kingdom"-and students from the European Union. This is disproportionate. The differential between them and the way in which they are now being separated out is unjust and is not something that we happily live with on either side of the border, or in the university system across the country.

This division started quite some time ago. There was a trickle of complaints when fees were originally raised through this mechanism but they were small sums of money, comparatively speaking. This trickle grew into a pretty strong stream when the target hit £3,000 and is now a vast torrent. There will be much irritation and anger, and a great degree of thinking twice about where to study as a result of this policy.

The figures in question come out of a series of decisions taken on the administration of higher education which started in 1992, when the two funding councils were separated. On grounds of consistency, I have to say that I opposed that separation. Indeed, if you read the relevant speech of the Member for West Lothian in the other place at the time, you will see that he quotes me as being against it. That was because I began to worry then about the kind of separation that will take, and has taken, place. The two funding councils are proceeding well according to their own administrative arrangements. I do not blame the accounting officers or members there. They have financial settlements imposed upon them by government, not least by this House.

The division that occurred then has grown in practice, perhaps in a way in which none had envisaged and certainly in a way that most of us regret. The issue today is not whether you can turn the clock back completely. Devolution has happened; I accept that. The issue is whether we want the kind of devolution that produces this sad differential between students from different countries and different areas within the United Kingdom.

3 pm

Lord Sewel: Was the noble Lord as uncomfortable as I was when reading the justification of some leaders of Scottish universities for imposing the highest fees? They used the argument that it was necessary in order to prevent Scottish universities being swamped by English students. I found that deeply uncomfortable.

Lord Sutherland of Houndwood: I am very uncomfortable with that. On the other hand, there were reasons, which I shall come to now, for the level of fees being set as it is.

The policy of the Scottish Government and the funding council is such that in the period from last year to next year a gap of roughly £40 million will have opened up in the funding of those universities. The University of Edinburgh, much to its credit-as the noble Lord, Lord Sewel, will be pleased to hear-recruits a large number of students from south of the border, and they contribute significantly to the life of that university. That is part of the way in which the university focuses on its United Kingdom, let alone its international, obligations.

With regard to that gap of £40 million, I know it is put about by some that the universities are raiding the coffers of the rich English and that is why they are

2 Feb 2012 : Column 1728

setting the fees as they are, but that is not the case. A funding gap has been created. I pay tribute to the University of Edinburgh because I believe that at the same time it has put in place the most generous and best scheme for helping students who could not otherwise afford it to come from south of the border. It is a very good scheme which I think could be emulated by others.

Where did this fees level come from? It came from two decisions. One was the coalition Government's decision to increase the fees to £9,000, although I have to say that they were following the example of their predecessors. This is not an argument about whether there should or should not be fees. I resist the temptation to get into that, although I have strong views on it. That was one element of what created this division. The other is that the Scottish Parliament, through its allocation to the funding council, deliberately created a gap in the funding of Scottish universities-it is in its accounts-of over £50 million. It created that gap and in effect instructed the universities to raise the money from students coming from the rest of the United Kingdom. That being so, there is a dual responsibility here, and it simply illustrates the point made more eloquently by the previous speakers about how we can sometimes set out on a constitutional road that leads not just to unintended consequences but to very unfair and unacceptable consequences as many of us see them.

Students from the rest of the United Kingdom, or RUK-it has a name, which is a sign of how well entrenched it is-will have to live with students whom they know will be paying none of the £36,000 that they are paying. The case has already been given of at least two such universities. It is sometimes suggested that the £36,000 is unnecessary. That is not true. If we are to compete with the best in the United Kingdom, that is the carefully estimated sum of money that has to be put back into the budget of individual universities, and they have set their fees accordingly.

I should mention that I was rather pleased to hear in the Antarctic debate mention of the University of Edinburgh. It has very strong research interests there and I am glad that we are protecting those interests. The only other interest that I could think of Scottish universities having in the Antarctic was if a very strong strain of clever penguins started applying to universities. They would have to decide what fees to charge the penguins, but happily we are unlikely to face that problem.

To summarise, an indefensible gap has arisen. I am not sure that either of these amendments would deal with it completely, but it is time for further thought. Do we want our university community, which shares knowledge and a passion for truth, to be divided within the United Kingdom financially in this extrovert way-a way that will distort human behaviour and the ways in which applications to universities are made? I hope not.

Lord MacGregor of Pulham Market: My Lords, I am delighted to be able to follow the noble Lord, Lord Sutherland. He referred to the eloquence of the other speakers but, if I may say so, he has spoken with great eloquence, great authority and great experience on this subject.

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When I woke up this morning, I had not been expecting to take part in this debate but I was working in my office and at other meetings in the House and happened to bump into my noble friend Lord Forsyth over a sandwich. Having realised what the subject is, I am only too delighted to be able to intervene. I hope to speak on the subject briefly because many of the points that I wanted to make have been made already.

I was born and brought up in Scotland and, like my noble friend Lord Forsyth, I went to the University of St Andrews. I listened to the point that the noble Lord, Lord Sutherland, made about the contribution of English students to the University of Edinburgh. I recall very clearly that one of the great richnesses during my time at St Andrews came from the university having so many students from America and elsewhere but particularly from England. I believe that that had a very beneficial effect in widening my horizons.

Subsequently, of course, I came to England and for many years represented an English constituency, and I shall say something about that in a moment. The noble Lord, Lord Foulkes, referred to the sensitivity of dealing with the Scottish Parliament on this issue. However, I think that there is no more sensitive an issue than this question of tuition fees for parents who live in England but who, like me, may have been born in Scotland and who hope that their children will go to Scottish universities. From knowledge gained from my friends and particularly from my constituents in Norfolk, I can say that the resentment is very great.

I know how this issue arose originally-the Scottish universities had to accept the ruling that EU students had to be treated the same as those in Scotland but that did not apply in the United Kingdom. That argument is not understood by any parent or potential student who wants to come to Scotland. I hesitate to mention the Barnett formula but the noble Baroness, Lady Liddell, has done so already. I was going to look at the Barnett formula in a slightly different context. I have always-since first being in government-been a strong opponent of the Barnett formula, but that is another story. However, there is no question that Scotland benefits greatly from the formula. One way of putting this resentment right would be to meet the fees required from English students coming to Scotland through the extra expenditure that the Scottish Parliament has received from the Barnett formula.

I want to say one other thing on this subject. For many years, I tried to persuade my constituents and many others in Norfolk and elsewhere of the unfairness to those in England-very often receiving grants from local authorities and so on-of the Barnett formula in treating Scotland so much better. I could never persuade my constituents of the importance of this case because it seemed remote from them. However, the one issue that they really understand and which creates resentment is when they want one of their children to go to the Scottish university that they attended but they find that the financial penalties are such that they are not able to do so. That is what comes home to them. I used to get a lot of representations from people in this situation and I could never convince them otherwise; I could only agree with them. That is why I strongly support these two amendments.

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Lord O'Neill of Clackmannan: I am very pleased to follow the noble Lord, Lord MacGregor. There seems to be an outbreak of unity in the Chamber today and we should be grateful to the noble Lords, Lord Forsyth and Lord Foulkes, for their amendments. The amendments may have imperfections but the point has been well made that devolution was to be about the extension of democracy, greater accountability and, ultimately, greater transparency. Through that, we hoped that there would be a measure of equity. In fact, what we have here is a classic example of the inequitable character of our constitutional arrangements.

I voted very reluctantly in favour of the principle of charging fees-I was probably one of the last converts from the Whips' arm-twisting process and what have you. However, I am not sure whether I would have voted in favour of the principle of fees if I had thought that it was going to be abused in the way that it is being abused by the Scottish Government. From the very speedy but quite succinct analysis given by the noble Lord, Lord Sutherland, of the accounting procedures adopted by the separatist Administration in Edinburgh, it is quite clear that they are out to discriminate against the rest of the United Kingdom and to prevent young people coming to our universities. If they do come, they will be making a disproportionate contribution to the finances of these institutions.

It is certainly the case that some institutions for historical reasons, such as Edinburgh, are probably better endowed and better able to introduce generous systems of support. There are a number of institutions that one might almost call marginal in their financial capability to provide the kind of support-

Lord Sutherland of Houndwood: I thank the noble Lord for giving way. The money that Edinburgh will put forward for needy students comes from the total fees package that is taken in. Clearly, they test alumni-looking around the Chamber, I remind Members of this-for additional funds to do that, but a significant part of the money comes from the fees that they charge.

Lord O'Neill of Clackmannan: The point I was going on to make is that some of the newer institutions are less well endowed in the round, have smaller numbers of alumni for a start, and are discriminated against in another way. Those institutions are not as attractive and are therefore unable to benefit from students from the rest of the UK or from abroad. Even within the system there are difficulties and inequities. There are imperfections in the two amendments, and the Government have to take the point that this Chamber is not happy with the way in which things have developed, nor with the unfairness that has been inflicted on children and families across the country. One part of the United Kingdom is able to benefit from devolution in this way and have free education at undergraduate level, while others in the same country are discriminated against when they come to Scotland to study or are deterred altogether, which I think is even more significant. Our universities and our Scottish institutions make a unique contribution to the mix.

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I have had this discussion in my own family with my sons. They say, "We're not really interested in going to Oxbridge; we think Edinburgh and Glasgow are perfectly adequate to provide us with an education". One could argue that they might have got the emphasis a wee bit wrong, but that mood still prevails. However, we do not want children to grow up in some kind of Caledonian closet, where they will not be open to other relationships and cultures. My younger son, who went to Glasgow, learnt a lot from being in the same halls of residence and playing in the same football team as young men from Northern Ireland, whose cultural and social background was dramatically different from his own. Such people will not necessarily have the chance to come to our institutions and the Scots who go to our institutions will not have their company.

Money is at the beginning, the middle and the end of this situation, but there are other dimensions. When we started on the road to devolution, we wanted, as I said earlier, to create a better United Kingdom, not a United Kingdom that was inequitable because of the cynicism of separatists in Scotland who wished to use the mechanism at their disposal to discredit the concept of the UK. This is an opportunity for us to avoid that and to ensure that they can be exposed for the charlatans they are when they argue in favour of free education for some but not for the rest, not because they do not happen to be Scottish but because they just happen to live in the wrong part of the United Kingdom.

3.15 pm

Lord Maclennan of Rogart: My Lords, I should declare an interest. I have recently been appointed as a trustee of the development trust for the most recent university in Scotland-indeed in Britain-the University of the Highlands and Islands, which has achieved its status at the hands of the Privy Council in the last year.

I cannot rest today on the arguments about university fees and the rights and wrongs of charging some. I know that opinion is deeply divided about that and that some of those involved in universities have made strong cases for substantial fees. Something as inequitable and discriminatory as this must exercise everyone in this House and in the country. What has been done by the Scottish Administration is deeply divisive.

The first successful advocacy that I indulged in as a boy was to persuade my father not to send me to an English boarding school but to keep me at the Glasgow Academy. I remember trying to persuade my parents' friends that they should take part in that advocacy because I got so much benefit from their generation and not just from my own generation. After that campaign had been won and I was allowed to remain at school in Glasgow, I remember that I received a letter from the right honourable Hector McNeil, who was at the time Minister of State to the Foreign Secretary, Ernest Bevin, saying, "Well done. You have chosen a good school and you have done the right thing, but I must tell you that there is a great deal to be said for thinking about going to a university in another part of the United Kingdom and I would encourage you to look at Oxbridge". I did and I went there.

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In the case of my own offspring, my son, the situation was reversed. In the House of Commons I represented a remote constituency and it was decided that my son should go to school in London where I would have a better chance of seeing him. In turn, he went to Edinburgh University. I wonder whether he can be described as a Scot or not? As the rules stand, it is all about where he lives. It seems to me that this is a shocking determination. In my son's case it did not happen. He went to Edinburgh. Pupils who are at the University of the Highlands and Islands, Edinburgh University or wherever are now faced with grossly unequal circumstances. It does not encourage people to move around and gain new educational experiences in a new and different part of the country.

The University of the Highlands and Islands in particular will seek to attract people to study there who are engaged in many different, discrete and sophisticated scientific and other studies. I fear that this will have an adverse impact on those studies. I noted the reference to the University of Edinburgh studying Antarctica. Cambridge University is promoting similar studies. People may consider that they might as well go to Cambridge as Edinburgh if they have to pay the same fee. This higher educational process will not benefit the younger members of our society if people are discriminated against in this way.

The arguments have been very well deployed in this excellent debate. I ask my noble and learned friend to take away these arguments and discuss them with senior colleagues who are in a position to do something. It is important that there should be a direct dialogue before Report not only with our senior Ministers but with representatives of the Scottish Executive. The public utterances that have been made by the First Minister, Mr Salmond, have been utterly deplorable in their discriminatory effect, and calculated to stimulate hostility among those who are not Scots. That is not how our Government should be managed. Although I cannot expect the Minister to give an entirely positive answer today, I hope that when the Bill comes back he will have taken these views into account and come up with proposals that right this serious wrong.

Lord Sanderson of Bowden: My Lords, I strongly support both my noble friend's amendment and that of the noble Lord, Lord Foulkes. I should perhaps declare an interest. I have two grandchildren, both aged 17. One is at school in Scotland and has been offered a place at Cambridge. The other is at school in England, lives in England and has been offered a place, conditional on her A-level results, at Edinburgh University.

Lord MacGregor of Pulham Market: I may have a potential interest that I did not declare. I have grandchildren living in England who may wish to go to a Scottish university.

Lord Sanderson of Bowden: In my case, no doubt everyone will realise that the grandfather will have to pay. That is one part of it. I strongly support what my noble friend Lord Maclennan said when he asked my noble and learned friend on the Front Bench to take this matter away, consider it carefully and come back with an answer that will give us some satisfaction.

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The question was asked earlier in this very good debate: do we want this sort of devolution? For my money, I think not-and I certainly know by the amount of disquiet in Scotland over this matter that there is concern that this must be sorted out. It should not be within the power of the present Scottish Government to exercise power in this way, with discrimination writ all over it in big letters. We must think of another way of dealing with this. I realise that legally they are quite correct, but morally they are not. If they want to try to divide the United Kingdom, this is the way to go about it-and frankly I dislike it intensely. It goes to the heart of the argument over whether the United Kingdom should be broken up. I sincerely hope that the two amendments in this group will start a debate in this House and outside it, as my noble friend Lord Maclennan said, and that the Minister will listen carefully and realise the anger that exists up and down the country over this discriminatory measure.

Lord Browne of Ladyton: My Lords, it is a pleasure to follow the noble Lord, who put the nub of the issue facing the Government and the Committee very forcefully and clearly. Once more in this Committee, the noble and learned Lord is caught in a pincer movement between my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Forsyth of Drumlean. Yesterday I was in conversation with a Scottish broadcast journalist, who shall remain nameless. He suggested that they were rapidly becoming the Chuckle Brothers of Scottish politics. No doubt as our deliberations go on the divisions between them will become apparent, although many of us know where they lie in any event.

In raising this issue, my noble friend Lord Foulkes brings to your Lordships' House a matter that is perceived by many in Scotland and, indeed, in this Committee, to be a cause of great unfairness. There can be no doubt about that. There are large numbers of people in Scotland who do not think that this is a fair way in which to treat students from England, Wales and Northern Ireland, and for good reason, because Scottish people pride themselves on the progressive nature of their thinking and on their values. Instinctively, they think-and they are right-that it is unfair that students who come to Scotland from England, Wales or Northern Ireland are treated differently from Scottish students or students from the European Union. The difference is obvious. We have the benefit in our deliberations of the summary by the noble Lord, Lord Sutherland, of the short history of this difference.

It is undoubtedly true that the fact that there are different systems of student support and student fees in different parts of the United Kingdom means that there is discrimination. While it has existed for some time, that discrimination has, by recent decisions of the UK and Scottish Governments, been driven to new heights, and consequently it is now much more apparent than it was. As my noble friend's amendment and the support for it show, it raises real issues about whether within the United Kingdom we can continue to operate such a discriminatory regime without addressing its inherent unfairness. To that extent, my noble friend is to be congratulated because he focuses his arguments very sharply, and it is clearly right to debate them, as the contributions we have heard thus far make clear.

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Whether it is appropriate to have this amendment in this Bill is a matter that the Minister will no doubt address. In one view, having devolved education, including higher education and student support, to the Scottish Parliament, it is a matter for it, and we should live with the consequences, which should be reflected in the political circumstances in which it operates. Whether there is some strong constitutional reason for leaving this to the Scottish Parliament, the amendment proposed by my noble friend raises real practical issues, and the debate that took place in the committee in the Scottish Parliament on the order that set out the specification of these fees encapsulated that. These practical issues will be reflected in the budget for Scotland. I do not think that any noble Lord who has contributed to this debate seeks to set the budget for the Scottish Government or, indeed, the Scottish Parliament but, effectively, that might be what we were doing if we dealt with this issue.

Lord Forsyth of Drumlean: My amendment is different from that of the noble Lord, Lord Foulkes, and we will no doubt come to it, but I have a simple, straightforward question for the noble Lord. Do the Opposition think that as part of the devolution framework, of which they were the midwives or architects, it is right that the Scottish Parliament should be able to exercise any power which results in discrimination against people resident outwith Scotland relative to people in the rest of the EU? It seems that there is an important principle here, of which fees are an illustration.

Lord Browne of Ladyton: I have not been long in your Lordships' House, but I have learnt to be wary of the noble Lord's simple questions. It is a pretty straightforward question and, when we were sharing responsibility with the people of Scotland for the devolution settlement, it was certainly never envisaged that this discrimination against young people in relation to higher education would be a consequence. I do not think anybody imagined that. In fact, I suspect that had the issue of internal discrimination in the United Kingdom been raised, we would have set our face against it in the original Act.

However, the politics of Scotland have moved on and, as the noble Lord, Lord Sutherland, and my noble friend Lord Foulkes spelt out very clearly, decisions have been made about student fees and the way in which we support higher education, and they have had consequences. One of them has been a significant potential financial disadvantage to Scottish universities, which could have untold detrimental consequences in the longer term for their ability to hold on to the best of their staff or to provide the level of education that they pride themselves on having provided, in some cases over centuries. That was an issue that had to be addressed and those who have looked at the way in which this discrimination has come about and how it was debated in the Scottish Parliament will know what the issues about funding are. It may be possible to address them in other ways but I do not know the detail of that. I am not supporting the way in which they have been addressed here. It is right that we should debate them but I am not entirely certain that this is the right way to do it.

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3.30 pm

That brings me to the noble Lord's amendment, which is complementary to my noble friend's amendment but is much wider because it seeks to establish a principle that is not related to a particular area of policy. Instinctively, I support that idea. However, as the noble Lord spoke to his amendment I was trying to think of another area of activity where this discrimination has surfaced. The only place I could see it had previously surfaced in my experience in Scotland was in relation to my own profession, the legal profession, and the rights of audience.

It is so long since I practised law in Scotland that I am not entirely sure of the current position. But I remember that, when I did practise there, there was discrimination about the recognition of the qualifications which I held and the rights of audience that I had both north and south of the border. I was conscious that we lived within an EU framework where those qualifications and rights of audience should be respected throughout. I know that that situation persisted for some time-I am not sure what it presently is-on these islands.

However, I have to say that it was not just the Scots who were responsible for this situation. All the individual jurisdictions of these islands practised discrimination in that area in recognition of those professional qualifications in the legal profession. This discrimination, in principle, predates devolution. It persisted through devolution and was practised, to my knowledge, not just by Scots against others but against Scots legal professionals for a period of time. It may not have continued and I am not entirely sure of the position.

Lord Forsyth of Drumlean: I am most grateful to the noble Lord and I am completely out of my depth because I have never really understood the legal profession. Is he saying that a situation existed where there were rights of audience that were unique to Scots that would not apply in England, but would apply to the French, the Germans and everyone else in Europe? Is that the position? If that is the case, rather like me I am sure he would believe in the single market and, advancing that, would regard this as anomalous.

Lord Browne of Ladyton: The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.

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Going back to my noble friend's amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.

I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O'Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.

Lord Selkirk of Douglas: Would the noble Lord care to bear in mind that the Law Reform (Miscellaneous Provisions) (Scotland) Act removed the discrimination which he claimed with regard to rights of audience for solicitor advocates? I also understand that my noble and learned friend Lord Mackay of Clashfern was instrumental in ensuring that the same thing happened south of the border.

Lord Browne of Ladyton: I am grateful to the noble Lord for that intervention. I am a member of a profession that prides itself on discrimination-at least certainly in its history it did-between those who had rights of audience in the higher courts and those who were historically perfectly capable of making the arguments but were denied. That division was addressed in the way the noble Lord has suggested. I am absolutely certain that the discrimination I was alluding to, which was based more on geography than on someone's membership of certain branches of the profession, has now been addressed. I am not entirely sure whether it has or not, but the purpose of introducing it was not to take us down a cul-de-sac, but to explore the issue of whether the interest in principle of the noble Lord, Lord Forsyth, was a necessary way of redressing a situation that went beyond student fees.

Lord O'Neill of Clackmannan: Perhaps my noble friend would remember that we do not need to have a solution that covers every form of discrimination. He should not allow the waters to be muddied by the

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somewhat unhelpful intervention of the noble Lord, Lord Forsyth, by way of a question. It is quite clear that on the educational issue here, this Committee is united. That is the message which should go up the channels of the Labour Party to those who will think about considering another amendment at some stage and whether or not it could be supported. Let us be clear: we just want something on fees and on the discriminatory effect of that issue.

Lord Browne of Ladyton: I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.

Lord Forsyth of Drumlean: Perhaps I can help the noble Lord. It is great to have a rebuke from the Opposition Benches. I was actually thinking that it would be easier for the Opposition to accept a point of principle in respect of devolution rather than accept a restriction on the policy freedom that was implied for the Scottish Parliament. I was just trying to be helpful.

Lord Browne of Ladyton: I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.

As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.

I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.

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My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.

Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.

Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.

Lord Forsyth of Drumlean: No.

Lord Wallace of Tankerness: European Union law could not be changed unilaterally. I know that my noble friend proposes in his amendment how we might address it, but that is not the same as changing European Union law, which I am sure he would be the first to accept.

When the package of free tuition for Scottish domiciled students was introduced in January 2000, my noble friend Lord Stephen-or Mr Nicol Stephen MSP as he then was-as the deputy Minister for Enterprise and Lifelong Learning, indicated that the proposals were produced based on the best advice available given the risk of challenge by other EU nationals. He went on to say that he was disappointed with the legal advice and would like it to be different, but that was the position in terms of having to operate within the confines of European Union law. I would not wish to suggest who gave that advice because I am sure it was sound, but given that we had to operate within the confines of European Union law, that was how we got into that position. Let us not be under any illusion that it was something that the then Scottish Executive did because they wanted to do it. It was because they were obliged to do it.

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3.45 pm

Something that has not been fully understood until now is that the same tuition fee was charged for students from Scotland, England, Wales, Northern Ireland or the European Union, except that in the case of Scotland and European Union students, the Scottish Government paid it. It was not that it was a different rate. It was the same rate across the board and the Scottish Government paid it for Scottish and EU students. Those coming from England, Wales and Northern Ireland had their own arrangements for funding and for meeting the fees. Of course, we now see a difference. There is a difference in the new order which, it was pointed out, was not opposed by any party in the Scottish Parliament when it ultimately went through, which set a differential fee.

It is wrong to suggest that this difference has suddenly come upon us. I appreciate that it is starker, but it cannot be said that it was unknown at the time of devolution. Anyone who went through those years particularly remembers the 1999 Scottish election campaign. The issue of whether there should be free tuition for Scotland domiciled students with a key one in that campaign. It was a key issue in the negotiations that led to the formation of the coalition Government.

The principle was accepted at the time that Scotland and the Scottish Parliament could operate on a different basis from that which would operate in different parts of the United Kingdom. That principle was accepted and what we are saying today is not that the principle has changed but that the numbers have changed so we should be re-examining the principle. I recognise why that is the case. At the core, my noble friend said, "Do not come away thinking that this is a matter of principle: that once you devolve powers you have to live with what is devolved". But there is an important principle. It was one that was not challenged when the distinction was first made and therefore we must be very careful as to the grounds on which we are now challenging the principle.

The noble Lord, Lord Sutherland, and my noble friends Lord Forsyth and Lord MacGregor, all mentioned the importance of the quality and the excellence that we want to see in Scotland's universities. We want to attract students to Scotland's universities because of the quality and the excellence of teaching and research. I can think of some educational institutions south of the border that would also claim to have excellence. A student resident in England choosing between Oxford and St Andrews will face the same fees whichever they choose. Perhaps St Andrews is an exception because the four years would all be at £9,000. Some Scottish universities have capped fees at £27,000, bearing in mind that there is a difference in the three-year or four-year course. That is a matter for the universities. But the residency does not affect the price of their higher education. They have the choice of going to an English university. It is not as if they are suddenly not going to be paying fees if they go to an English university which they suddenly have to pay if they go to a Scottish one. It is important that we put these issues into that kind of context.

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Lord Sutherland of Houndwood: There is, however, one significant difference. Many of us come from a generation where we had to live at home when we went to university, which I did intermittently for a few hours each night. But that is not a choice available to students going from England to Scotland, so they cannot economise on the cost of university education by making a choice that others can, for example, who live in London.

Lord Wallace of Tankerness: They can actually make the choice to go to London and possibly not pay any more or any less.

Lord Sutherland of Houndwood: Clearly the choice is driven then purely by financial constraints rather than by educational aspirations.

Lord Wallace of Tankerness: I agree and accept that, but we are perhaps kidding ourselves to think that those students in Scotland who chose to go to a university very close to home were not also taking into account financial considerations; albeit that they were fortunate to have so many universities of considerable quality on their doorsteps. If you came from the part of Scotland that I came from, nowhere was on the doorstep. I pay particular tribute to my noble friend Lord Forsyth for what he did when he was Secretary of State for Scotland in giving an impetus to the idea of the University of the Highlands and Islands, which, as my noble friend Lord Maclennan has indicated, has now come to fruition. It has taken a somewhat long time but it was worth it. I know how keen he was on it. It has made higher education available on the doorsteps of many people who otherwise would not have had that opportunity.

I never particularly like, and do not think this debate lends itself to, technical issues, but the amendment from the noble Lord, Lord Foulkes, is deficient in a number of ways. It reserves to the UK Parliament the power to make variations in fee levels between different parts of the United Kingdom. I am sure that it is not really quite what he was intending. I acknowledge and appreciate that my noble friend Lord Forsyth has sought to couch this in a way that is more related to an issue of principle rather than focusing on tuition fees. However, as the noble Lord, Lord Browne, pointed out, with the possible exception of rights of audience, you would be hard pushed to actually think of any other circumstance where this principle might arise. I will clarify the position on rights of audience. I clearly recall that it certainly was the case. I know of many practising advocates now at the Scottish Bar who are also at the English Bar-and some, indeed, at the Northern Ireland Bar-as well as some solicitors trained in Scotland who now work in firms in England. It does seem easier at a practical level to go between jurisdictions than it was hitherto. The point of my noble friend's amendment is very much focused on tuition fees, which he did not attempt to disguise in speaking to his amendment.

However, one should always be aware of the law of unintended consequences. One possible consequence of his amendment is that the Scottish Government

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could address this by paying the tuition fees of every student from England, Wales and Northern Ireland. My noble friend says that would be fine. Obviously it could be budgeted and other things would have to give way to fund that. However, it would suddenly mean that it would be hugely cheaper for students from England, Wales and Northern Ireland to attend universities in Scotland. My noble friend says that is ridiculous, but of course that would be the consequence.

Lord Forsyth of Drumlean: That is the position for Greeks, German, French, Italians and everybody else in Europe-that it is considerably cheaper for them to come to Scotland, where they get a free education relative to England. It is a ridiculous argument.

Lord Wallace of Tankerness: It is not a ridiculous argument at all, because it is very difficult if you are a student coming from Greece, where English might not necessarily be the language in which you would more readily study. It is far simpler if you are coming from Carlisle to go to Edinburgh than it would be to go to Birmingham. I can assure my noble friend that when tuition fees were increased in England and variable fees were brought in, in around 2004, there was clear evidence-which I was presented with as the then Minister with responsibility for higher and further education-that that would have a considerable impact on cross-border flow, and that was something that we had to address. Indeed, we did address it.

Lord Flight: I point out to the Minister that Ireland charges extremely low tuition fees at universities. This has not led to a huge increase in the number of British students going to Irish universities.

Lord Wallace of Tankerness: The point I was making was that there was clear evidence, which we were looking at in about 2003 or 2004, in an overall review we did of higher education at that time in Scotland, that a differential where Scotland was much cheaper than England, Wales or Northern Ireland would have a considerable impact. I totally subscribe to what noble Lords have said in this debate-that the essence of many of our universities, the advantage of them and the thing that gives richness to student life, is the fact that you are shoulder to shoulder with people from many different backgrounds, nationalities and cultures. I subscribe to that overwhelmingly. But it is naive in the extreme to think that, if university tuition in Scotland was free for students from England, it would not have some quite material effect on the numbers applying.

Lord Sutherland of Houndwood: I thank the noble and learned Lord for giving way and I promise not to intervene again, but there is a further argument in this area that is relevant. If Scotland is not charging fees for students who come from the continent but England is, there will be a displacement of students from continental bases to Scotland. Last time I did a back-of-the-envelope calculation, European Union students were costing Scotland between £80 million and £90 million a year. That could grow as an unintended consequence of the policies. I am not questioning good faith or decisions

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taken constitutionally in the right way; I am just saying that we really are creating consequences, and that is another one that we ought to look at very carefully.

Lord Wallace of Tankerness: I think that actually supports the argument that I was just making-that if the numbers are going up from European Union countries, a fortiori the numbers would increase from other parts of the United Kingdom. That is something that would have to be addressed. I do not think that my noble friend has actually thought that through.

Just as the noble Lord, Lord O'Neill, said to the noble Lord, Lord Browne, that he might have to talk to the leadership of his party before the matter comes back at the next stage, so my noble friend Lord Forsyth said that I should draw this matter to the attention of the Prime Minister and my noble friend Lord Maclennan asked that we think about this before Report stage. I do not think that it would be a service to the House if I did any other than say that obviously we have to reflect on the very strong views that have been expressed in this debate.

Lord Maclennan of Rogart: I am grateful to my noble and learned friend for what he has just said, but the principle that my noble friend Lord Forsyth has advocated is one that could conceivably be important-not in the light of our previous experience, because that kind of discrimination has been anathema in the United Kingdom, but in establishing this precedent, which one can see being extended to other spheres. That might include the domicile of people taken into care because of illness in Scotland. If they happened to be domiciled in England, they might be subject to much higher charges, and that by law. There is a very important principle here, which I hope will not be confined just to education, although education is the immediate reason why we need to discuss these things.

Lord Wallace of Tankerness: I recognise the principle that my noble friend is enunciating. That is why I said that we do not know what the consequences would be of the amendment proposed by my noble friend Lord Forsyth. It goes right to the heart of the architecture of the Scotland Act-to Section 29, which makes certain legislation not law, as I am sure the noble Lord, Lord Sewel, remembers well from the days of the passage of the Bill in 1998. To add this as a principle of devolution when its possible consequences have not been thought through is something that I would not wish to accede to without much greater thought as to what its implications might be.

I conclude by making that commitment but I also have to conclude with the other principle-the principle of devolution. Inevitably, if you devolve matters, Governments may not choose the course that you would wish to see. It is probably not unfair to say that Mr Tony Blair was not entirely happy when he learnt what the Scottish Government were proposing in 1999 about abolishing tuition fees and bringing back more generous student grants, but he accepted that that was one consequence of devolution. If we pursue a line that has been sometimes advocated today, we run the risk of undermining the purpose of devolution. Differences in policies can develop, and we will not

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always agree with those differences. But if we constantly fight against the differences and produce ad hoc legislation if something comes up that we do not like-even if we do not like it with a considerable passion-we must do so with great care, because there is a principle of devolution that could be well undermined if we do that.

4 pm

Lord Foulkes of Cumnock: I will deal with that very point. I started by saying very much what the Minister has said in his last few words. I am very aware of that sensitivity. I will come back to this in a few minutes, but I am really grateful to the Minister for agreeing to take this away and reflect on it. When he expresses the view to his colleagues, I hope he will make it clear that this is an all-party, cross-bench, overwhelming, united, passionate and powerful message from the House of Lords. We have had people from all the parties, with lots of graduates from Scottish universities and other universities, all powerfully talking in one direction. That is a message to get over: we may be non-elected, but some of us have been elected in other places for long periods and have a lot of experience. I hope that message will get through.

I will make two points before I come to my last general point. First, on unintended consequences that arise, the noble Lord, Lord Forsyth, said this was a question of domicile, not nationality, which is absolutely right. Let me tell the Committee of one of the unintended consequences. Early last year, a Tory Peer-I will not name him-told me that he already knows of relatively well-off people who are buying up flats in Edinburgh to establish domicile there, so that they will not have to pay fees. That is the kind of thing that happens-and no, it was not the noble Lord, Lord Forsyth, saying that. Just as others have said, those who are relatively well off might pay the fees while others can get what I might call a domicile of convenience, so as to not pay them. They will eventually sell the flat, or whatever, and manage to reap some profit on that.

My second point is on what the noble Lord, Lord MacGregor, and, again, the noble Lord, Lord Forsyth, said about the Barnett formula. There is an amendment tabled for later in this Committee from my noble friend Lord Barnett himself-I call him Lord Formula-to have this revised. He has wanted that done for some time. We know that, per capita, it is exceptionally generous to Scotland. That is why the Scottish Government and the Scottish Parliament have been able not just to keep free higher education but free prescriptions and free personal care as well, all of which is building up tremendous resentment south of the border. There is a feeling here that the taxpayers south of the border are paying for all those better services. We heard that expressed in a previous debate in this House by Members from England, and it is a very strongly held feeling.

I urge the Minister to think about the consequences. There is of course another way of dealing with this, which is how Mike Russell, the Education Minister in Scotland, wants to deal with it. He wants to end the anomaly by stopping allowing European students in for free. He wants to go to Commissioner Vassiliou and say, "Let's have this changed so that we don't have

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this obligation". I do not think he will succeed in that-I think it will be impossible for him to succeed in that-but let us think of what he is trying to do. He is trying to make it financially difficult not just for English, Welsh and Northern Irish students but for European students to come to Scottish universities. My noble friend Lord O'Neill spoke about the Caledonian closet. Can your Lordships imagine Scottish universities reverting to what they were centuries ago when Glasgow, for example, had just students from around the Glasgow area? They would become narrow, introverted and isolationist universities and not in the old tradition of Scottish universities. I hope that we will not move in that direction.

The Minister was genuinely helpful and I hope that he will take it away, as he said, and discuss it. I listened very carefully to my noble friend Lord Browne. I think that he supported me in principle and that he will take it away to look at in more detail. I will help him in that task. The noble Lord, Lord Forsyth, asked the Minister to talk to the Prime Minister about it. Can I add the Deputy Prime Minister, just to make sure that it is all squared with both parts of the coalition? Will the Minister also talk to the Scottish Government about it and say that there is a strength of feeling, there are anomalies and there may be other ways around it? Will he ask them to consider the options for ending an unfair and discriminatory arrangement? We have some time until Report stage to do that. We are not going to finish this Committee stage until late in March so we will probably not get to Report until April.

I hope that the Minister will go away and talk sincerely to them. I know that he is busy with other things, but I hope that he can take some time out to talk to people about this anomaly, which clearly upsets so many people, not just in this Chamber but, far more importantly, outside it, and try to find a fair and equitable solution. On that basis, I shall withdraw the amendment.

Lord Forsyth of Drumlean: My Lords, I thank the Minister for his response to the debate which was very generous, giving what a beating he was subject to during it. I always used to say of my late learned friend Nicky Fairbairn that if I were on a murder charge I would have him defend me. In the absence of Nicky, given that my noble and learned friend made a good job of a pretty limited set of arguments, that accolade may fall to him. We do not need to think about the future to see what is going to happen in the future. Only this week the UCAS figures were published. They show, surprise surprise, that more Scottish and European students, but fewer English students, are going to Scottish universities.

I feel a bit alarmed by the interests that were declared by my noble friends Lord MacGregor, a former Secretary of State for Education, and Lord Sanderson. I suppose I ought to declare a grandson, whom I am taking to the rugby on Saturday.; he will be supporting England and I will be supporting Scotland. He is only 13, but I would not like to think that his choice of university should be in any way limited by where he lives in the United Kingdom.

I do not normally disagree with my noble friend Lord Flight, but he has made some remarks about

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Irish universities. I ought to declare another interest: my youngest daughter went to Trinity College, Dublin. When she decided to go there, I thought that it would cost me an arm and a leg but it was free because there are no fees in Ireland. The consequence of that has been that a number of English students go to Trinity College, Dublin, but the university limits the number that it will accept and the result is that now you need to get four As, I think, in order to be able to go there. A distortion is being created not just in residency or wealth but also in the ability of the students. Only very able students from Europe are able to get into these universities.

I do not know whether or not it is legal to have a quota, but it is a remarkable argument. "Independence in Europe" was the slogan, and the whole idea of Europe-which, I confess, has been distorted-is that it is an open, single market where you have free movement of labour. That is the attractive part of the idea. It seems to be a complete distortion to argue that we are in favour of a single market throughout Europe but not within the United Kingdom. That argument will lead to fragmentation, which is precisely why Mr Salmond and his friends support it.

I will not detain the Committee; we will return to this. However, I want to pick up a couple of points that the Minister made. It is not right that an English student wanting to go to a Scottish university will to have to pay the same fees, because in Scotland we have four-year degrees. Personally, I would be very sad to see the end of the four-year degree system, but that may also be an unintended consequence of the distortion that has been created.

The Minister, speaking from the Dispatch Box, said something which absolutely horrified me, and which I hope will not be the general policy of the Government. He said that it would not be appropriate for him to comment from this Dispatch Box on the policies of the Scottish Government. Excuse me-this is part of the United Kingdom. The devolution Bill-the Scotland Bill-gave powers to the Scottish Parliament to exercise, but the powers to legislate on these matters remain with us. It is entirely appropriate for Ministers at the Dispatch Box to comment on the policies of the Scottish Executive-not Government, Scottish Executive-particularly if they affect the people of the rest of the United Kingdom. That is the kind of principle that I would expect to hear being enunciated by Mr Salmond and the separatists. It is the duty of this House to look at the consequences of the Scottish Executive's policy and their impact not just on Scotland but on the rest of the United Kingdom. I hope that my noble friend will take this away and consider it very carefully indeed. There has not been a single speech in support of the current position. I believe that if we were to divide the Committee and people knew what they were voting for, there would be a jam in one of the Lobbies and the Minister would be searching for tellers. This matter needs to be looked at very carefully.

The noble Lord and I did not confer on this issue at all. We both tabled amendments because we are both aware of the feeling on this matter. I put down my amendment as an amendment of principle because it seems to me that the principle of devolution should be

2 Feb 2012 : Column 1746

that policies which affect Scotland are made in Scotland and that the Scottish Parliament should be responsible for them, but that in so doing-this is an important principle-people in the rest of the United Kingdom should not be disadvantaged vis-à-vis other European Union citizens. If I had put down an amendment that said the Scottish Parliament should have the power to legislate in a way which discriminates against people in England, Northern Ireland and Wales but not other EU citizens, it would have been laughed out of court. That appears to be the position of the Government-that they are prepared to have a status quo of that kind.

I do not see this as being something that might have unintended consequences; it seems to me to be central to the whole philosophy of devolution. I find myself in a very surprising position in having to explain the philosophy of devolution as I have not been a strong supporter of it because I thought that it would lead to exactly the difficulties which we are now encountering. However, that is water under the bridge. If we are to maintain the United Kingdom, we have to make it work. Setting boundaries and a framework seems to me a more appropriate way of going forward than limiting the scope in particular areas of policy. But in whichever direction we go, we need to resolve this problem one way or the other. One way of dealing with it would be to say that the fees of those students who go from England to Scottish universities are picked up by the Department for Education and that the money is taken off the block grant to the Scottish Parliament. There is a whole range of ways of doing it. I think that would probably be the most provocative way of doing it. There are other ways of doing it but I urge my noble and learned friend and his colleagues to think carefully about the best way of doing it, perhaps as my noble friend Lord Maclennan said, in consultation with the Scottish Government. We cannot go on like this.

Amendment 22 withdrawn.

Amendments 23 and 24 not moved.

Amendment 25 had been retabled as Amendment 90A.

Amendment 26 had been retabled as Amendment 94A.

Amendment 26A

Moved by Lord Foulkes of Cumnock

26A: After Clause 14, insert the following new Clause-

"Rail passenger services

(1) In Part 2 of Schedule 5 to the 1998 Act, section E2 (rail transport) is amended as follows.

(2) In the exceptions insert-

"Services for the carriage of passengers by railway which start and finish in Scotland, including the power to decide who will run such services, the provisions of the Railways Act 1993 notwithstanding."

(3) In the interpretation insert-

""Services for the carriage of passengers by railway" has the meaning given by section 82 of the Railways Act 1993.""

Lord Foulkes of Cumnock: My Lords, I shall be very brief on this because I know that we have some of the most distinguished lawyers from Scotland waiting in the wings to talk about the Supreme Court. I am looking forward to hearing them do so.

2 Feb 2012 : Column 1747

This amendment was moved by my colleague Thomas Docherty in the Commons and has the support of the trade unions. It comprises a simple, technical new clause. Most people think that the Scottish Parliament already has the power to decide on the model for the ScotRail franchise, or for the franchise in Scotland. After all, it has to fund that franchise through its Ministers and it is responsible for the letting of the franchise. It is also responsible for funding the building of new railways in Scotland. We have successfully given greater powers to Scottish Ministers to do everything except determine the model of that franchise. I will not argue that a switch to a not-for-dividend model would necessarily be the best. The issue is that Scottish Ministers must let the franchise according to a privatised model. I am not saying that that is wrong; I am just saying that they should have freedom to decide what the model should be. I hope that noble Lords, particularly the Minister, will note that I am suggesting additional powers for Scottish Ministers and the Scottish Parliament, which would be welcome.

4.15 pm

The Railways Act 2005 specifically bans a public body from acting as the franchise operator. Thereby, Scottish Ministers are banned from having a public body to deal with these matters. The only exception to that is if that body is the operator of last resort-as is now the case with the east coast main line. The proposed new clause would give Scottish Ministers the right not only to fund the railway, to let the franchise and to monitor its performance-all of which they have to do anyway-but to determine the shape of the model involved. This might well result in a privatised model, such as the one that exists on the ScotRail franchise, or perhaps a co-operative model. Ministers might ask Transport Scotland to run the franchise, or they might set up a new company called "Scottish Passenger Transport" to do so. It gives them that flexibility.

This proposal was not considered by the Calman commission because it involved a small technical change. I hope that the Minister will give serious consideration to the amendment. It was divided upon in the Commons because-I and Mr Docherty believe-it was misinterpreted as being a proposal to bring ScotRail into public ownership. That is certainly not the case. The only power that the amendment would give is freedom to Scottish Ministers to decide what the model should be, as well as all the other aspects.

The Earl of Mar and Kellie: My Lords, one of the curiosities of the current rail franchising process is that while the British Government and, presumably, the Scottish Government cannot offer to run the railways directly, there is no opposition to foreign national Governments-through, for example, Deutsche Bahn or SNCF-running franchises in the United Kingdom.

Lord Boyd of Duncansby: My Lords, I am grateful to my noble friend for tabling the amendment, which was debated in the other place. It seeks to rectify what appears to be an omission from the Scotland Act 1998 and subsequently the Railways Act 2005, which devolved significant powers over the ScotRail franchise, including

2 Feb 2012 : Column 1748

its funding and licensing as well as responsibility for new rail lines for the network, yet neglected to devolve the power to determine the model of that franchise. Of course, it would not be appropriate to devolve responsibility for cross-border services, but that is not what the amendment seeks to address. It is clear that the amendment relates to services that begin and end in Scotland.

When this matter was debated in another place, as my noble friend indicated, we seemed to get side-tracked-if that is not an inappropriate way of putting it-down a spectre of renationalisation, which was not the purpose of the amendment. The Parliamentary Under-Secretary failed to address the central issue that the amendment poses regarding whether it is consistent with the spirit of the devolution settlement that the power to determine the nature of a discrete Scottish franchise, in relation to which the Scottish Government already have considerable responsibility, should be reserved.

I ask the noble and learned Lord the Minister to say what the position is in Wales and, more fundamentally, why the Government believe it is necessary and proper to retain powers to determine the franchise model of a self-contained Scottish rail service where the franchise is granted by the Scottish Government.

Lord Wallace of Tankerness: The noble Lord, Lord Foulkes, gave a fair analysis or description of what his amendment is intended to do. The noble and learned Lord, Lord Boyd, said that this might just be an oversight in the original arrangements. The noble Lord, Lord Foulkes, said that it was too small a matter for the Calman commission. I think that quite a significant change is proposed; it is not a small matter at all. The fact that I do not recall any representation on or consideration of it as part of the Calman commission may say something about whether there is widespread support for it.

The noble and learned Lord, Lord Boyd, asked why legislative competence has not gone hand-in-hand with executive competence. I think I am right to say that executive devolution was not present in the 1998 Act, but was subsequently negotiated between the then Scottish Executive-I think that Mr Henry McLeish took a role in that-and the Labour Government. The agreement reached was one of executive devolution. The Labour Government did not think it right at that stage to extend legislative devolution, and that continues to be the position of this Government. The Government are committed to maintaining a GB-wide national rail network which is publicly specified and funded in the public interest but which is provided by the private sector.

It is important to recognise the substantial executive devolved powers which Scottish Ministers have in relation to railways. They include giving general guidance to the Office of Rail Regulation, giving notice of their requirements for the outputs of the rail network in Scotland and the level of public funding available to the Office of Rail Regulation and publishing a Scottish railway strategy. They also have power to designate, let, fund, manage and enforce Scottish franchises and publish a statement of policy on franchising; to set

2 Feb 2012 : Column 1749

fares; to publish a code of practice protecting the interests of disabled passengers; to appoint a member of the Passengers' Council; to give financial assistance to any person for the purpose of developing Scottish railways; and to publish freight grants schemes for Scotland. Indeed, they have considerably more powers than that. Of course, the Scottish Executive have also taken considerable initiatives in building and constructing new railways-my noble friend Lord Mar and Kellie is probably a personal beneficiary of the railway from Stirling to Alloa-so substantial powers are already available.

However, as I said, we believe that devolved powers are best exercised within a coherent GB structure, as provided for under the Railways Acts 1993 and 2005. It is essential that the overall regime for the provision of rail passenger services and their regulation remains a reserved matter. It would not be sensible to run the railway in such a way that the Scottish Parliament through legislative devolution could overturn the framework that governs the operation of passenger services in Great Britain as a whole.

The noble and learned Lord raised the question of Wales. I will certainly confirm the position, but the fact that we wish to keep a GB structure means that there is no legislative devolution to the Welsh Assembly.

Lord Foulkes of Cumnock: What I am proposing would not overturn the structure of the railways in Great Britain as a whole, as the Minister just said, but is merely filling a little gap in the model, the kind of franchise that can be agreed by the Scottish Executive and the Scottish Parliament. It is a small but important addition and it would not disturb the rest of the railways in the United Kingdom. I hope that he will give it some serious consideration.

Lord Wallace of Tankerness: I think it would, if we take it that GB includes Scotland. If Scotland could have a different model from that operating in the rest of Great Britain, that would amount to a material change. We believe that the right balance is in place. It was a balance struck not by this Administration but by the previous one, and not just as part of the original legislation but as one for which specific consideration was given for a Section 30 order. The arrangement struck the right balance and I urge the noble Lord to withdraw his amendment.

Lord Foulkes of Cumnock: On every previous occasion, I have said that I am really grateful to the Minister for listening carefully to the arguments and being sympathetic, accepting some of the arguments and going away and looking at the amendment. In this case, I am disappointed. I could have gone on at much greater length arguing the case, but I have some concern for my noble friends the eminent lawyers from Scotland and we need to get on to the issue of the Supreme Court. However, this is an important issue. The trade unions feel strongly about it. I know that the Scottish Government would welcome this change. It seemed to have some support in the House of Commons, and would be a coherent arrangement.

2 Feb 2012 : Column 1750

The noble Earl, Lord Mar and Kellie, is a very quietly spoken Member of this House and always speaks exceptionally briefly, but in this case his point was really quite a remarkable Exocet. In his brilliant intervention, he said that whereas there could be no public ownership so far as Britain was concerned, in relation to United Kingdom interests, French, German or Dutch railways-all three are publicly owned-would have no problem at all in buying into and taking over this franchise. That is a serious anomaly. It might be best to have some kind of United Kingdom or Scottish structure different from the current ScotRail structure to deal with it. I hope that the Minister will give further consideration to this between now and Report so that we can avoid a rather longer debate then. Nevertheless, I beg leave to withdraw the amendment.

Amendment 26A withdrawn.

Amendment 26B

Moved by Lord Sewel

26B: After Clause 14, insert the following new Clause-

"Nuclear Power

In Part 2 of Schedule 5 to the 1998 Act, under head D4 (nuclear energy) omit-


The subject-matter of-

(a) Part I of the Environmental Protection Act 1990, and

(b) the Radioactive Substances Act 1993.""

Lord Sewel: My Lords, I hope that we can get through this in under 12 minutes and break the Foulkes record. Right at the beginning, I will come clean: this is purely a probing amendment, which means we can totally disregard the detail. I can only apologise if some poor civil servant somewhere has spent hours drafting notes on Part 1 of the Environmental Protection Act 1990 and the Radioactive Substances Act 1993. I am sorry, but that was my way of getting the issue on to the agenda.

Quite simply, the issue is my concern whether, at a time when energy security is one of the greatest challenges that we face, we have the appropriate legislative framework to enable the implementation of a strategic British energy policy. It would be totally inadequate to try to deal with the issue of energy security by fragmenting policy so that you have English, Scottish and Welsh energy policies. The task that we face is too great for that sort of small, narrow-minded approach.

Schedule 5 to the 1998 Act reserved virtually all areas of energy policy: electricity, oil and gas, coal and nuclear energy; there are a number of exceptions and they are in the original Act. There has also been a degree of executive devolution since then. The reservation of energy was done quite deliberately in 1998, with the view that strategic energy policy was best devised and implemented at a British level. The point that I want to explore with the Minister is whether we are still capable of implementing a strategic British energy policy. This is where I use the peg of nuclear: we have to take account of the specific contribution that nuclear power can play. We have heard from the Scottish Government that they will not be allowed to build new nuclear power stations in Scotland, and that is a major

2 Feb 2012 : Column 1751

factor in the debate on energy policy. Is the Minister satisfied that the Scottish Parliament and Scottish Ministers have powers which would enable them to prevent the construction of nuclear power stations in Scotland and, if that is the case, is it really possible or credible to think in terms of British energy policy?

4.30 pm

Lord Maclennan of Rogart: My Lords, I support the thoughts lying behind this amendment. When approached recently by an American company which indicated the desire to establish a small nuclear research plant in Scotland to develop nuclear power on a small scale, I was rather shocked to be advised by the Department of Energy and Climate Change that, because of the planned powers for the Scottish Parliament and the declared expression of intent to allow no nuclear developments in Scotland, this approach, which would have brought significant employment to Scotland, was to be denied.

I know that there are different attitudes to nuclear power in different parts of Scotland. I know, for example, that my noble and learned friend's former constituents were always a little unhappy about what was happening across the Pentland Firth at Dounreay. Equally, my noble and learned friend will recall the satisfaction of my former constituents that nuclear power was being developed and researched on the north coast of Britain as part of a strategic policy on energy development. It is rather unfortunate, to say the least, that the good will of those in that particular area towards nuclear power is to be overlooked and that the possibility of replacement in the research field is to be denied when the Dounreay nuclear establishment is finally decommissioned.

My comments, like those of the noble Lord, Lord Sewel, are probing. It appears that the original intentions of devolution in respect to energy policy have been effectively stymied by matters which will not necessarily proceed to be related directly to the strategic questions. Having policies for different parts of the United Kingdom in relation to energy, which transcends even existing national frontiers, is almost certainly unwise. Indeed, I think that when the Prime Minister came back from the European Council the other day, he talked about enlarging the scope of the European Union in respect of energy policy. Therefore, we seem to have two standards here-one relating to how we deal with Europe and one relating to how we deal with internal matters-and I think that these anomalies need to be sorted out. However, as I said, this is merely a probing inquiry.

Lord O'Neill of Clackmannan: I should like to follow my colleagues on this issue because for some time I was chairman of the Nuclear Industry Association. My connection with that organisation has now been terminated, so I do not have to declare an interest but I still have great affection and respect for the industry.

It is certainly fair to say that an amendment of this kind has to be probing in character because, to be realistic, we do not really want to face the prospect of a planning challenge at this time on nuclear matters. I do not think it would be reasonable to say that there is fantastic demand in Scotland for Hunterston C and D

2 Feb 2012 : Column 1752

being constructed at this time. However, by 2015 or 2016, we will have the large plant directive in place and, therefore, Cockenzie power station, which is relative small, will probably be closed and we will also have the prospect of Longannet, which is the massive linchpin of Scottish power generation, operating under severe constraints as a consequence of the large plant directive.

Torness will probably carry on until 2025, given likely extensions if the safety codes are met. Within the next eight years investment decisions will have to be taken as far as replacement base load generation is concerned. It ought to be made as clear as possible what restraints there are on the possibility of the planning powers of the Scottish devolved Parliament being constrained or changed or being ignored, if that were possible. If energy is a reserved power, does the power to frustrate through the planning process necessarily enable a Scottish Parliament to deny the people of Scotland and the United Kingdom the contribution that a power station on the scale of Torness could offer?

It is suggested that the nuclear industry is somehow alien to Scotland, that we do not have anything to do with it, and the plutonophobes, in their separatist windmills, forget that probably as much credit has to go to James Clerk Maxwell as anyone for the development of nuclear power. Through companies like the Weir Group and through a variety of other groups like Renfrew-based Doosan Babcock, the nuclear power industry is very vibrant and strong in a lot of areas of Scotland. Although it does not enjoy the weekend press releases that we get for the somewhat immature, renewable technologies-immature in the sense that they are barely proven and barely out of the laboratory-in its hands will lie the economic success of Scotland.

It is true that we will still have gas-fired power stations, but it is quite likely that, if the carbon capture and storage technologies are developed, they will try to apply them to that form of generation as well. If that happens, it will severely restrict even the capability of the gas-fired power stations to make a proper contribution to our energy needs. I make the point that, although today it is not an important issue, we still have some time to go before a Torness replacement has to be considered. There will be uncertainties about the continuing generating capability of our main stations by 2015. Not all of us are quite as optimistic about the contribution, 24/7, base load in character, that can be made at present by renewable power stations.

Therefore, it is important that an issue of this nature is afforded some clarity. That is why I am very grateful to my noble friend Lord Sewel for raising it. We are not asking for the earth to move or anything like that; we are merely asking for some clarity from the Advocate-General on this question.

The Earl of Mar and Kellie: My Lords, is this not a matter of Scottish democracy? I suggest that in 2016, the Labour Party in Scotland needs to come forward-providing it is prepared to put up with the description of being nuclear Labour-with the type of policy that will presumably be substantially different from the policy continuing to be put out by the current Scottish Government.

2 Feb 2012 : Column 1753

Lord Browne of Ladyton: My Lords, it is a pleasure to follow the noble Earl, Lord Mar and Kellie, who asked a legitimate question. If there are advocates for the policy, they should be heard in Scotland and the Scottish people should make their decision. Nobody could criticise my noble friend Lord O'Neill of Clackmannan for being a shrinking violet in this regard. He speaks with authority and obvious knowledge about the benefits of nuclear energy and the role that it should play in the mixed energy economy of Great Britain. I accept the noble Earl's challenge and thank my noble friend Lord Sewel for giving me the opportunity to outline, in a couple of minutes, some of the basic points about a single GB energy market in which nuclear energy will play a part.

The existence of a single GB energy market is manifestly to the benefit of Scotland and to the rest of our island. It allows the sharing of resources, risks and rewards. The development of renewable energy capacity in Scotland depends largely on substantial support from that market. As noble Lords said, energy is in the main a reserved matter under the Scotland Act. However, through the exercise of devolved power over the planning system, the current Scottish Government are able to prevent new nuclear plants being built in Scotland. They have said that it is a matter of ideology and that that is what they will do.

As noble Lords heard, Scotland produces a not insignificant proportion of its electricity through the nuclear power stations at Hunterston and Torness. I have noted in my short time in your Lordships' House the development of the concept of declaring an interest. I do not declare this as an interest, but it may be of interest to Members of the House that as a student I was involved, as a McAlpine fusilier, in building the Hunterston B power station. I remember being handsomely rewarded for my work and benefiting from the great advantage that in those days, students did not pay any tax on a substantial part of their income. Therefore, in a small way I contributed to the energy security of our country. Since Hunterston is a nuclear power station, it will be a lasting legacy-although perhaps not a legacy of which everyone would be proud.

At times of peak demand, Scotland, which produces a significant amount of energy, imports electricity generated by nuclear power stations in England. Under a separate Scottish energy policy-God forbid that there should ever be one-that would have to continue, in order to maintain base load power and to prevent the lights going out in Scotland. However, both Hunterston and Torness will come to the end of their operating life in the next few years, as we heard-although one or other may continue, depending on the safety case. The position of the SNP Scottish Government on nuclear energy appears contradictory. They seem happy to import the energy from England, but impose a policy of no nuclear energy in Scotland on ideological grounds. This does not seem to be a point of principle or ideology. It is a political issue in Scotland that works in their favour in the mean time, but will not in the longer term.

The noble and learned Lord the Minister is not here to answer for the Scottish Government, and I do not ask him to. However, perhaps in his closing remarks

2 Feb 2012 : Column 1754

he will indicate what he understands the position to be in relation to the extension of the life of nuclear plants currently operating in Scotland. I have reason to believe that there will be a positive response from the Scottish Government to the life extension of these stations, for the obvious practical reason that there is no substitute for them in the offing. If that is the case, where does the ideology lie? Where is the point of principle if the life of these plants can be extended but new ones cannot be built?

I am conscious of the time, and I do not want to detain the Committee unnecessarily. I have made the points I want to make. I am grateful to my noble friend Lord Sewel, who has provided the Committee with a good opportunity to remind itself of the one irrefutable fact: the benefit of a single GB energy market. The whole of Britain, including Scotland, benefits from this market. It makes no sense to break it up, and we should continue to try to protect that market.

4.45 pm

Lord Wallace of Tankerness: My Lords, I thank the noble Lord, Lord Sewel, for introducing this issue. I take the point he made that the pegs on which he hangs it are perhaps not details that he wishes to address. Rather he wishes to open up the wider issue of energy policy and, more specifically, nuclear energy policy with regard to the devolution settlement.

That said, it is important to note that decommissioning gives rise to important issues regarding substantial amounts of nuclear waste. We do well to remember that decommissioning the civil nuclear legacy and managing the radioactive waste produced as a result is a joint project across the UK, and the Nuclear Decommissioning Authority reports to both Scottish and UK Ministers, although it is funded centrally by the UK Government through DECC. There have been good working relationships on that point.

The noble Lord, Lord Sewel, raised the more general question about energy policy. The balance that has been struck, with the United Kingdom in the driving seat with regard to UK energy policy, is one that we endorse. The Calman commission received a number of representations on these issues and indicated that it believed that a UK-wide approach is essential to ensure a continuing national supply, that international targets and obligations are met and that consumers have access to a competitive and modern energy market. It concluded that the current arrangements remain appropriate and provide a balance between powers appropriately exercised at devolved and reserved levels, although it encouraged proper engagement between the two Governments.

The UK nuclear energy policy has been set out in the national policy statement EN6, which was ratified in 2011. I am grateful that my noble friend the Minister at DECC is in his place. He will, no doubt, correct me if I get any of this wrong. This national policy statement provides for enough sites across the United Kingdom for a significant build programme going forward for new nuclear sites. I do not know the detail of the extension times for currently operational nuclear power stations. Scotland currently has five nuclear power

2 Feb 2012 : Column 1755

stations, three of which are in the process of being decommissioned-Hunterston A, Dounreay and Chapelcross-and two are still operational-Hunterston B and Torness. There is also an MoD site, as my noble friend Lord Maclennan will know, the Vulcan Naval Reactor Test Establishment adjacent to Dounreay, which ran a test reactor for the nuclear submarine programme. I will get confirmation to the noble Lord, Lord Browne, about the remaining lifetime of those plants.

I think it is fair to say that the noble Lord perceives that there may be some inconsistency in the view taken by the Scottish Government with regard to extension as opposed to their stated view with regard to new build.

Lord O'Neill of Clackmannan: I may be of some small assistance here. It is my understanding that life extension would be the responsibility of the Nuclear Installations Inspectorate. A safety case has to be advanced. Were that to have construction implications that required planning, that might cause a wee bit of a problem, but the basic case has to be satisfactory in the eyes of the Nuclear Installations Inspectorate.

Lord Wallace of Tankerness: I am sure the noble Lord is absolutely right. At the core of this-maybe not the right word-at the heart of it is the safety case, which would be determined by the independent Nuclear Installations Inspectorate. The noble Lord raised the point, which we will come on to, about other issues leading to issues about planning. It is not only planning because in 1999 there was executive devolution that transferred to Scottish Ministers powers under Section 36 of the Electricity Act with regard to giving permission for power stations in excess of 50 megawatts, and that would include any future nuclear power stations.

I perhaps interpret the concerns to include how that would operate. To be fair, more generally in planning it probably makes sense to have planning powers. In the debate on the then Scotland Bill, the noble Lord, Lord Sewel, said that,

There is some good sense that there should be planning considerations.

I should also perhaps draw to the attention of the Committee a decision in the Outer House, Court of Session, last year by Lord McEwan in a petition of Dulce Packard and others for judicial review. He said:

"The best guidance is the Lewis case (the mixed redevelopment at Redcar on Teesside). It is quite clear from the case that the Minister's position is quite different from someone holding a judicial or quasi judicial office. All the Minister has to do is to consider genuinely the inquiry report and the objections".

Clearly, we have not yet had any application. But he went on to quote from the Lewis case and the judgment of Lord Justice Rix.

"So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question".

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It would be wrong to speculate what would happen if any company applied for planning permission and was turned down. It is a high test, which I think Lord McEwan made clear. Nevertheless, he went on to say that the,

But evidence of predetermination might be relevant.

I had better stop there because one never knows when one might find oneself having to go down that path. In saying this, I hope I can give some assurance that the Government believe that the balance in the Scotland Act is right. As I have indicated, the national policy statement, which was ratified last year, provides for enough sites across the United Kingdom for a sufficient build programme going forward for nuclear sites. With these remarks, I hope the noble Lord feels that he has probed successfully. I am afraid that we have taken twice 12 minutes, but it has been a useful debate and I hope that he will withdraw his amendment.

Lord Sewel: I thank all noble Lords who have contributed. In reply to a point made earlier, I am not advocating a nuclear power policy for Scotland. I am advocating a British energy policy to deal with the issue of energy security. It cannot be done at the level of the individual component parts of Great Britain. We need to work together to have a policy covering the whole country.

I think that we are very reluctant to go too far on the planning point. But the noble and learned Lord will remember that the vires test in the 1998 Bill that left the House of Commons was not the same as the vires test that became the Act. Let me put it this way: that change was in part as a result of discussions that were very close to the type of discussion that we have had today. I beg leave to withdraw the amendment.

Amendment 26B withdrawn.

Clause 15 : The Scottish Government

Amendments 27 to 29 not moved.

Amendments 30 to 39 had been withdrawn from the Marshalled List.

Clause 15 agreed.

Clause 16 agreed.

Clause 17 : The Lord Advocate: Convention rights and Community law

Debate on whether Clause 17 should stand part of the Bill.

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