Vol. 756 Wednesday No. 48 29 October 2014

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Introduction: Lord Goddard of Stockport...... 1191 Questions Police and Crime Commissioners...... 1191 Child Abuse: Police Investigations ...... 1193 Gaza: Reconstruction ...... 1196 European Arrest Warrant ...... 1198 Scotland: Devolution Motion to Take Note ...... 1201

Grand Committee Consumer Rights Bill Committee (6th Day)...... GC 441

Written Statements ...... WS 115 Written Answers ...... WA 153

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No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2014, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1191 Introduction: Lord Goddard of Stockport[29 OCTOBER 2014] Police and Crime Commissioners 1192

and crime commissioners, which is the best system of House of Lords police governance in England and Wales that could Wednesday, 29 October 2014. have been invented, except for anything else that you could have thought of? 3pm Lord Bates: I respect the noble Lord’s great experience Prayers—read by the Lord Bishop of Lichfield. in this area, but we need to remember what the system was before. The previous Government commissioned Introduction: Lord Goddard of Stockport an HMIC report—entitled, appropriately for the time, Police Governance in Austerity—which found that only 3.09 pm four of the 22 police authorities inspected were judged to have performed well in two of their primary functions: David Goddard, Esquire, having been created Baron setting a strategic direction and ensuring value for Goddard of Stockport, of Stockport in the County of money. There has been a change there, and that is to Greater Manchester, was introduced and took the oath, be welcomed. supported by Lord McNally and Lord Lee of Trafford, and signed an undertaking to abide by the Code of Lord Paddick (LD): My Lords, one of the two Conduct. objectives that the Government set for police and crime commissioners was to save money. In addition Police and Crime Commissioners to the vast expense of many of these police and crime commissioners appointing deputies, we have also had Question to have two by-elections—once, tragically, because of 3.13 pm a death and once because of resignation—which have cost between £1 million and £3 million. How much Asked by Lord Hoyle money has the change actually saved? To ask Her Majesty’s Government what standards Lord Bates: Police budgets overall are reducing, and guidelines are given to Police and Crime which is not something that we chose to do but was Commissioners upon taking office. the situation that we were faced with when this Government came into office. It should be said that The Parliamentary Under-Secretary of State, Home the police are also overseeing one of the largest falls in Office (Lord Bates) (Con): My Lords, the Police Reform crime that we have ever had in recent years. That is to and Social Responsibility Act 2011 provides the broad be welcomed. The average salary of a police and crime structure within which police and crime commissioners commissioner is about half that of a chief constable. must operate. The legislation is necessarily permissive In many areas, people will regard them as delivering to allow PCCs to innovate and deliver policing more value for money. If people feel that they are failing in effectively than the unelected police authorities that their responsibilities, they can vote them out, which they replaced. they could not do before. Lord Hoyle (Lab): I thank the Minister for that Baroness McIntosh of Hudnall (Lab): My Lords, considered but short reply. Already between 2012 and the noble Lord mentioned the number of people who 2014, these police and crime commissioners have cost voted for police and crime commissioners when the us £9,636,264. That is just in salary and expenses and elections were originally held. Will he remind the does not take into account the people who are directly House what percentage that represents of the people employed by them. The public do not understand why who could have voted? police and crime commissioners were appointed, what they are supposed to do and what they have achieved, Lord Bates: Yes, it was 15% of those who could but they do know that they cannot be sacked. Does have voted. This was a new role introduced to increase the Minister agree with the Deputy Prime Minister accountability, and 15% is a sight more than were that this is a failed experiment and that they should be present in the smoke-filled rooms to elect the chairmen scrapped? of the police authorities which existed before. Lord Bates: I hear what the noble Lord says, but of The Earl of Listowel (CB): My Lords, what advice course 5.49 million people voted to put those people in is given to PCCs on the value of high-quality youth place. I would argue that they are much more accountable services and well supported mentoring and peer mentoring than the police authorities and the local government services? What evidence can the Minister cite of consistent systems that existed before. As for the comments of investment by PCCs in that vital area to prevent the Deputy Prime Minister, of course this was a children and young people entering crime? coalition agreement that was supported through this House, but the Liberal Democrats are entirely entitled Lord Bates: The noble Earl is right to raise the to change their mind whenever they choose. concern. PCCs can be responsive in local areas in a way that did not exist before. For example, in Lord Blair of Boughton (CB): My Lords, it is said Northamptonshire, Adam Simmonds has introduced that Churchill described democracy as the worst system a new victim witness service. In Cumbria, Richard of government except for everything else that had Rhodes has introduced an office of victim services. been tried. Does the Minister agree that the coalition Those are exactly the type of changes which are responsive has achieved the converse by the introduction of police to local needs that the commissioners are now delivering. 1193 Police and Crime Commissioners[LORDS] Child Abuse: Police Investigations 1194

Earl Attlee (Con): My Lords, is the Minister aware National Crime Agency is currently leading an that I was unable to name any member of a police unprecedented operation against online child abusers authority who was not a Member of your Lordships’ in the UK. In the past 12 months it has safeguarded or House? protected more than 1,000 children, and 706 arrests have been made by forces. Lord Bates: My noble friend makes a fine point. Police and crime commissioners, through the press, through discussion and through the elections, are much Baroness Smith of Basildon (Lab): My Lords, in more widely known and recognised. Therefore, people July 2012, the Canadian police passed to CEOP—now will increasingly come to them with their issues, to part of the National Crime Agency—hundreds of which they can respond. names of people involved in downloading abusive images of children here in the UK. It was not until Lord Harris of Haringey (Lab): My Lords, is it not September 2014, over two years later, that Essex police the case that a fifth—it may be more, but it is seven or interviewed deputy head teacher Martin Goldberg. eight at least; no doubt the Minister can tell us—of He was found dead the following day, with thousands the elected police and crime commissioners are under of images of children on his computer, some taken current or recent investigation by the IPCC for fraud with a secret camera. or other misdemeanours? Are the Government, or at Reliable evidence shows that more than 50,000 least the Conservative part of the coalition, still intent people may pose a risk to children in the UK—and on giving PCCs more powers and more responsibilities yet, by the noble Baroness’s own figures, only some and doing nothing about the accountability mechanisms? 700 have been arrested. The Government say that those who pose the greatest risk are prioritised. How Lord Bates: I thought that when the noble Lord are they prioritised? How many of the 50,000 on the began by speaking about seven or so police and crime NCA list have been identified as posing the greatest commissioners, he was referring to the number of risk, and how many have now been interviewed? former Labour MPs and Ministers who are now holding those important positions in this country. The reality is that of course they are accountable to the police and Baroness Williams of Trafford: It is fair to say that crime panels, but ultimately they are accountable to Project Spade—as it was called—was a very regrettable the people who elected them. incident, to the extent that the NCA has actually referred itself to the IPCC. There was no excusing Lord Bew (CB): My Lords, is the Minister aware what went on there. In terms of who is prioritised, that the Committee on Standards in Public Life recently they are the people who proved the most harmful to announced an inquiry on local policing accountability, children. That is how the priority is worked out. leadership and ethics, which is reviewing how ethical standards are being addressed within the current structures Baroness Walmsley (LD): Will the Minister work for police accountability, including police and crime across government to ensure that the whole children’s commissioners? I declare an interest as chairman of workforce in all sectors are trained to recognise the the Committee on Standards in Public Life. early signs of child abuse so as to help the police by reducing the need for cases to come before them at all? Lord Bates: I was aware that that process is under That will protect children. way and I pay tribute to the noble Lord, Lord Bew, as chairman of that committee. In the context of this, I encourage all Members of your Lordships’ House, Baroness Williams of Trafford: My Lords, it is a particularly those with policing experience, to feed in general duty of those working with children to safeguard their views to the Committee on Standards in Public them. Certainly every single officer who works in the Life so that it can look thoroughly at this issue. NCA has a legal duty to safeguard and protect children.

Lord Patel of Bradford (Lab): Can the Minister give Lord Campbell-Savours (Lab): My Lords, can we us an ethnic breakdown of the police and crime draw a distinction between “most harmful” and commissioners? “harmful”? Lord Bates: I cannot give that at the moment, but I will write to the noble Lord. Baroness Williams of Trafford: In terms of harm, I would say that “most harmful” applies to children in Child Abuse: Police Investigations immediate danger of being harmed. Question Baroness Butler-Sloss (CB): My Lords, what training 3.21 pm are the police being given in relation to child abuse, Asked by Baroness Smith of Basildon whether it is porn images or the appalling stories of Rotherham and others right across the country? It is To ask Her Majesty’s Government what assessment perfectly obvious that the police are not being trained they have made of recent research by the NSPCC at the moment. What is being done about it? into police investigations of child abuse. Baroness Williams of Trafford (Con): My Lords, we Baroness Williams of Trafford: There are highly will always ensure that police and other crime-fighting trained officers within the NCA. The CEOP officers, agencies have access to the powers and resources that of which there are 141 at the moment, are highly they need to tackle child abuse in all its forms. The trained in terms of safeguarding and in terms of 1195 Child Abuse: Police Investigations[29 OCTOBER 2014] Gaza: Reconstruction 1196 image viewing on the internet. I can provide the noble The Earl of Listowel (CB): My Lords, is the Minister and learned Baroness with more information on that aware of the important report produced by the Office subsequently. of the Children’s Commissioner on children who are abused when taken from residential care in children’s Baroness Farrington of Ribbleton (Lab): My Lords, homes and on how gangs sexually abuse children? would the Minister care to comment on my noble friend’s question: do the authorities take physical harm Baroness Williams of Trafford: Yes, those are some towards children outside the country as seriously as of the most vulnerable children in our society and it is they do harm towards those within it? Is her definition right that we should deal with this and bring the of “most harm” inclusive of children who are abused perpetrators to book. anywhere else in the world? Baroness McIntosh of Hudnall (Lab): My Lords, is the Minister aware that the General Medical Council Baroness Williams of Trafford: My Lords, British did some work a couple of years ago, with which I was national children, whether they are in this country or involved, on the involvement of general practitioners outside it, are of the highest priority for the Government. and other doctors in spotting child abuse? Is she also That is why some of the work being done on the aware that one issue that was most clearly a problem internet has global reach. In fact, we are global leaders was the multiagency relationships that she talked of in in this area. one of her earlier answers? Although there are good intentions in relation to multiagency work, is she Lord Laming (CB): My Lords, can the Minister confident that it is being carried out in a coherent assure the House that progress has been made in way? training front-line staff and others to listen to children and take their concerns seriously—not necessarily without Baroness Williams of Trafford: The noble Baroness a critical view—and make sure that the full range of raises a very valid point. That is why I mentioned services is brought into play at the right time? earlier the different pictures across various multiagency teams. This is an area for improvement. Baroness Williams of Trafford: My Lords, the development of multiagency teams in this area has been very helpful over the years. Obviously, some Gaza: Reconstruction organisations do it better than others but I am happy Question to write to the noble Lord in terms of where we have got to on this. 3.28 pm Asked by Baroness Tonge Lord Swinfen (Con): My Lords, there appears to be To ask Her Majesty’s Government what far more abuse of children today than there was 30 or contribution they are making to the reconstruction 40 years ago. Is it known why? of infrastructure in Gaza.

Baroness Williams of Trafford: My Lords, I think Baroness Northover (LD): My Lords, at the Gaza that there appears to be more abuse of children these reconstruction conference in Cairo, the United Kingdom days; I do not necessarily think that there is more committed £20 million to assist those affected by the abuse. We are just far more aware of it and willing to recent conflict in Gaza, including the hundreds of deal with it. thousands left homeless or without access to water. This funding will include support for the disposal of Lord Foulkes of Cumnock (Lab): My Lords, there unexploded ordnance, rubble clearance programmes are reports that the Home Office is reviewing the and reconstructive surgery for those injured in the position of Lord Mayor Fiona Woolf as chairman of conflict. the inquiry. Is this correct? Baroness Tonge (Ind LD): I thank my noble friend for her Answer but how does she intend to reassure Baroness Williams of Trafford: My Lords, Fiona taxpayers in this country, who are increasingly worried Woolf stated to the Home Affairs Select Committee about expenditure on international aid, that the money that she had no close association with the Brittans. I for reconstruction in Gaza will not be squandered think that noble Lords would agree that it is time that when Israel launches another attack in a couple of we got on with this inquiry. years’ time? Can she also say why so many of the contracts for building materials and the reconstruction Baroness Benjamin (LD): My Lords, can my noble of Gaza are going to Israeli companies, thus ensuring friend the Minister tell the House what support is that Israel profits from the destruction that it caused? given to children who have been abused? Baroness Northover: No one benefits from destruction Baroness Williams of Trafford: My Lords, there is a in Gaza. In terms of the rebuilding, we are looking wide range of support available to children who have very carefully at the implications of any damage to been abused, but in the time that I have here I will not internationally funded structures. Meanwhile, our partners go through it all. I will write to the noble Baroness to assure us that relief items are largely sourced in Gaza, outline some of the detail. the West Bank or internationally. 1197 Gaza: Reconstruction[LORDS] European Arrest Warrant 1198

Lord Turnberg (Lab): My Lords, it is clear that we actions in this regard are less than helpful, but Israel need to get much building material into Gaza to help has primary responsibility as the occupying power rebuild all those destroyed homes, but is the noble and we continue to urge it to ease restrictions and Baroness aware of the statement made by the Hamas reach a durable ceasefire agreement. spokesman last week? He said that the avowed intention of Hamas is to start rebuilding the tunnels into Israel Lord Collins of Highbury (Lab): My Lords, at the immediately. Is there any way of preventing this? Cairo conference, the DfID Minister declared on his return that a key ingredient for stability is a long-term Baroness Northover: We urge restraint, as we always strategy for Palestinian economic growth. What action do, on both sides. Peace is in the interest of both is the department taking to ensure that that comes sides—of the Palestinians and the Israelis. into place?

Baroness Eaton (Con): My Lords, last month Israel, Baroness Northover: This leads back to the previous the Palestinian Authority and the UN agreed to a question. What is extremely important here is lifting tripartite mechanism to enable vital reconstruction many of the Israeli restrictions. Lifting restrictions in materials to reach Gaza, while also ensuring they do Area C alone, as he probably knows, could increase not end up in the hands of the terror group Hamas. Palestinian GDP by $3.4 billion. Does the Minister agree that this is welcome news and that we must encourage further such co-operation, Lord Ashdown of Norton-sub-Hamdon (LD): My which recognises the concerns of both parties? Lords, earlier the Minister quoted the relative numbers Baroness Northover: I would agree with my noble of people killed on both sides. Taking these into friend. account as well as the extent of the destruction, including two declared UN safe-haven facilities, do Her Majesty’s Lord Anderson of Swansea (Lab): My Lords, it is Government share the White House’s view that Israel’s surely quite right that vast sums should be pledged by actions in this matter were disproportionate and the international community for reconstruction. But indiscriminate? what assurances were given by Hamas and its successor that the sums they receive are conditional on good Baroness Northover: We certainly condemn the actions conduct—in particular, on not provocatively raining of Hamas in terms of the rocket fire but we have also ever more rockets on Israel? urged that Israel, which has a right to defend itself, should do so in a way that is indeed proportionate. Baroness Northover: It is worth bearing in mind that, as I said, we urge restraint on both sides. In that Viscount Slim (CB): My Lords, it is a known fact conflict, 71 Israelis lost their lives and 2,131 Palestinians that the Palestinians inside Gaza are not in control of were killed. It is extremely important that we move their own destiny. Hamas dictates in Gaza. Unless Her forward into a proper peace process. Majesty’s Government, and DfID in particular, are very careful, they will discover that most of this Lord Hylton (CB): My Lords, am I correct in reconstruction money goes towards the rebuilding of understanding that Turkey has offered a ship with Hamas’s destroyed houses and, as one noble Lord sufficient generating capacity to supply electricity to said, the tunnels and hides for its armaments and the whole of the Gaza Strip for six months? If that is munitions. There is a great danger that if this money correct, will the Government ensure that the offer is and equipment get into the wrong hands, our country accepted and the thing is made use of? will be liable for supporting one of the nastiest and most vicious terrorist organisations in the world at Baroness Northover: I do not know the details of present—one that is primed and supported by Iran. that but I will write to the noble Lord. I know that we This will mean that we are supporting a terrorist are gravely concerned about Gaza’s fuel and energy organisation. situation. Baroness Northover: I assure the noble Viscount Baroness Falkner of Margravine (LD): My Lords, that no UK aid money goes to Hamas, but of course my noble friend will be aware that the Egyptian Hamas needs to be part of the ceasefire negotiations Government are starting to clear eastern Sinai to and it is extremely important that the peace process create a buffer zone to close the Rafah crossing, which moves on. The region is a tinderbox, and the sooner will further limit supplies going into Gaza. Given that that it moves on, the better for all concerned. very limited construction materials are already agreed, how does she see Gaza being rebuilt in these very constrained circumstances? European Arrest Warrant Question Baroness Northover: We were very clear at the Gaza reconstruction conference in Cairo that movement, 3.36 pm including access restrictions, needed to be improved to Asked by Lord Harris of Haringey have the kind of meaningful reconstruction that my noble friend is talking about. We have welcomed the To ask Her Majesty’s Government what steps agreement on the UN mechanism for importing they are taking to ensure that the United Kingdom construction materials as an important first step. Egypt’s is able to opt back into the European Arrest Warrant. 1199 European Arrest Warrant[29 OCTOBER 2014] European Arrest Warrant 1200

The Parliamentary Under-Secretary of State, Home Lord Bates: The noble Lord is absolutely right. Office (Lord Bates) (Con): My Lords, the Government That is why the Government are bringing this forward are close to agreeing a package of 35 measures with and seeking urgent agreement on it. the European Commission and other member states that the UK will seek to join in the national interest. Baroness Smith of Basildon (Lab): My Lords, the That package includes the reformed arrest warrant, Minister will be aware of the comments in the letter with increased domestic powers to block arrest warrants from the Irish Government expressing their concern where the offence is disproportionately minor or where that if there is any gap between the Government the relevant conduct that occurred in the UK is not a opting out of the international arrest warrant and crime. The discussions continue in Brussels. opting back in again, that will have serious implications for arresting those involved in terrorism. What response Lord Harris of Haringey (Lab): Given that nearly have the Government made to this, and what discussions 100 foreign criminals are removed from this country have they had with other countries which may be under the European arrest warrant every month, can expressing similar concerns? the Minister give us a guarantee that we will have opted back in by 1 December? When will this be put Lord Bates: The noble Baroness is absolutely right. to the House of Commons? When it is, because of That is why we want to ensure that there will be no gap the level of opposition to the European arrest in respect of this, and I am confident that there will warrant by the Taliban majority of the Eurosceptics in not be. Only one country out of the 22 with which we the Conservative Party, will the Government be relying are currently in bilateral negotiations has a concern on Labour votes for us to opt in, in the national about this. We believe that that concern can be overcome interest? within a matter of days.

Lord Bates: My Lords, the noble Lord is right to Lord Blackwell (Con): My Lords, does my noble point to the importance of this; 5,000 foreign criminals friend accept that there are serious concerns about the have been deported since it came into effect in 2009. principle of British citizens being arrested on British Of course the desire is to opt back in by 1 December, soil and sent into the custody of foreign judicial systems, but this needs to be negotiated and there need to be where there is no democratic control by other British agreements. Those negotiations are continuing. Her citizens, without a chance for British courts and British Majesty’s Government’s position is that we want to be justice systems to take a view on it? Will my noble there by 1 December. In terms of when the House will friend assure us that this House will have a full opportunity have the opportunity to discuss this, discussions are to debate and vote on this proposal before it is taken ongoing between the business managers to make time forward? for that to happen before 20 November. Lord Bates: We will certainly have that debate and Lord Deben (Con): My Lords, does my noble friend vote. That was one of the important safeguards we accept that the only people who gain from our non- negotiated that have been introduced: to say that a membership of the European arrest warrant arrangements crime must be a crime in this country as well as in the are fraudsters, child molesters and gangs? Should we country to which the extradition has been sought for a not say that this is another example of the excellent warrant to be agreed to. reasons why we should be full and really committed members of the European Union? Lord Blair of Boughton (CB): My Lords, is the Minister aware that European arrest warrants are a Lord Bates: My noble friend is absolutely right in two-way process, and that should the Government fail respect of these measures. To keep a balance, though, to renegotiate an entry back into the European arrest let us remember that being part of the European warrant system for Britain, then the criminals of Europe Union is not just about signing up to everything that would know that and what used to be called the “costa comes down the track. With regard to justice and del crime” would arrive on the shores of Britain? home affairs, there were 135 measures in the package, Lord Bates: My Lords, I am sure that the representatives 100 of which we did not feel passed the test regarding of the Spanish Government, with whom we are our national interest. However, 35 did and those are negotiating bilaterally, will of course have noted the what we want to rejoin. noble Lord’s comments carefully.

Lord Elystan-Morgan (CB): My Lords, does the Baroness Suttie (LD): My Lords, does my noble Minister accept that committees of this House have friend the Minister agree with Sir Hugh Orde, the heard overwhelming evidence from law enforcement president of ACPO, when he said that the European agencies from England, Wales, Scotland and Northern arrest warrant, Ireland, as well as the Republic of Ireland, of the “gives us a stronger, more effective means of arresting dangerous wholly invaluable role that the European arrest warrant criminals across borders and thus keeping our communities safe plays in the war against serious crime? Does he also at home—it is not an instrument which we can afford to lose”? accept that, although there are minor infractions that can so easily be put right, it would be a severe blow to Lord Bates: My noble friend is absolutely right. I the administration of justice if, for any reason— agree with ACPO in respect of this and of course the particularly in relation to any tactical or political European affairs committee, the security services and consideration—the European arrest warrant were to the law enforcement services, whose views the Government be prejudiced in any way? have listened to and acted upon. 1201 European Arrest Warrant[LORDS] Scotland: Devolution 1202

Lord Low of Dalston (CB): My Lords, will the Tankerness, who will respond to today’s debate and Minister say if the Government are willing to reconsider who, let us not forget, is a former Deputy First Minister their opt-out from the measure on xenophobia and of Scotland. racism? I think that to opt out of this measure portrays Eighty-five per cent of people in Scotland voted in the United Kingdom in a very bad light and sends a the referendum: a truly remarkable figure. More than very bad signal. 2 million people voted for Scotland to remain part of the United Kingdom. They voted for a stronger Scottish Lord Bates: I will write to the noble Lord on that. Parliament backed by the strength and security that He is right to raise concerns about it and I will make comes from being part of the United Kingdom. With sure that he gets an absolutely accurate and speedy their support, we can now firmly say that the debate reply. has been settled for a generation—or, as Alex Salmond himself said, perhaps for a lifetime. Arrangement of Business Before the referendum, the three pro-union parties Announcement made clear commitments with a clear timetable to devolve further powers to Scotland. We have since 3.44 pm published our Command Paper on Scotland ahead of Lord Taylor of Holbeach (Con): My Lords, my right schedule, setting out the proposals from each party. honourable friend the Leader of the House of Commons This is not just talk. The noble Lord, Lord Smith, and recently announced a February Lenten Recess for that his commission have already begun work to take those House. It may be for the convenience of the House commitments forward, working with one aim: to produce that I now do the same. I hope that we will be able to a unifying set of proposals by 30 November. For the rise for a short recess at the end of business on first time, I am pleased to say that all major parties are Thursday 12 February and return on Monday 23 February involved in shaping that result. Based on that work, 2015. I must emphasise that these dates are provisional the Government will publish draft clauses by the end and subject to the progress of business. That is of of January—by Burns Night, to be precise—so that course the usual caveat for all our recess dates, but I the legislation is ready to be implemented after the must underline it on this occasion, for this will be the next general election. Let me be clear: we have delivered, final recess in this last Session of the Parliament. we are delivering and we will deliver on our devolution I hope that the House will also find it useful if I commitments, just as the United Kingdom Government take the opportunity to highlight that this morning’s have always done. edition of Forthcoming Business advertises three more Let me turn now to Wales, where we have also been sitting Fridays before we rise for Christmas: 21 November, making good on our promise of further devolution. 5 December and 12 December. We have delivered a referendum on lawmaking powers, we have set up the Silk commission and we have Scotland: Devolution introduced the Wales Bill, where I am particularly proud of the role that this House is playing. That Bill Motion to Take Note implements nearly all the Silk 1 recommendations, 3.45 pm which alone devolve significant tax and borrowing powers to the Assembly and Welsh Ministers—but we Moved by Baroness Stowell of Beeston went further. By removing the lock-step, we will provide That this House takes note of devolution following the Welsh Assembly with the power to vary income the Scotland referendum. tax rates. Not only will those new powers help the Welsh economy to become more dynamic, they will The Lord Privy Seal (Baroness Stowell of Beeston) make the Welsh Government more accountable. Those (Con): My Lords, I am delighted to open this debate are big steps forward, but we must make sure to keep on devolution following the clear decision of the Scottish Wales at the heart of the broader debate before us people to remain part of this great United Kingdom. today. As delighted as I am, I will allow a little time for As Noble Lords will know, the Silk commission noble Lords leaving the Chamber to do so before I recommended a move to a reserved powers model in continue to open this debate, because I would be very part 2 of its report. It will fall to the next Parliament disappointed if noble Lords remaining for the debate to make that change, but the Secretary of State for did not get to hear just how delighted I am. Wales has made it clear that in considering the best The clear decision of the Scottish people to way forward he wants to hear views from across the remain part of this great United Kingdom was a political spectrum in Wales. once-in-a-generation decision that confirmed once again It is also vital that we consider the future of devolution what we all know to be true: that we are a family of in Northern Ireland. I need not remind the House that nations bound by a rich history and the strength of the settlement there is the result of the hard-fought our democracy. The referendum campaign electrified and hard-won Belfast agreement. Providing additional politics in Scotland. Door by door, street by street, the powers would involve changes to that agreement, so Scottish people showed just how much people are any changes would need to command the support of truly interested in the big decisions that affect them. I all parties in the Assembly. It is right that the focus know that many noble Lords from across the Chamber there is on making the existing settlement work well were involved in that campaign. I pay particular tribute and in the best interests of the people of Northern to my noble and learned friend Lord Wallace of Ireland. 1203 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1204

This does not mean that the devolution settlement Lord Forsyth of Drumlean (Con): I am most grateful in Northern Ireland is fixed. The ability to vary long-haul to my noble friend. None of these arguments is new. air passenger duty has already been devolved, and the They were gone through in great detail in the 19th century Northern Ireland Executive are committed to devolving at the time of Irish home rule. The conclusion then corporation tax. The Prime Minister has made it clear was that the way to deal with this fairness was to that there will be a decision on this no later than the reduce the number of MPs coming from Ireland. Why Autumn Statement. can the same not be applied in the case of devolution to Scotland? As I have already set out, the Government respect and support the calls for greater autonomy and devolution in Scotland, Wales and Northern Ireland—but we Baroness Stowell of Beeston: Certainly—and I speak cannot ignore England in this equation. England is for the leadership of my party—we are clear that the the most decentralised nation in the United Kingdom. best way in which to deal with this is through English The Localism Act 2011 marked a historic shift in votes for English laws within the House of Commons. power to the local level. In doing so, we did not create That is something that we can tackle and deal with new layers or structures or more politicians; we moved quickly. money to local areas in order to make things happen. Thirty-nine local enterprise partnerships bring together Lord Thomas of Gresford (LD): So much of the civic and private sector leaders to promote growth. We legislation affects England and Wales. When the noble have devolved the money—£2 billion a year from next Baroness says England, does that include Wales? year—for them to do their work. We have delivered on city and local growth deals. Eight so-called core deals have been signed, creating around 175,000 jobs and Baroness Stowell of Beeston: Certainly in the context 37,000 apprenticeships over 20 years. With the second of legislation that affects England and Wales only, of wave now in place, there are 80 more on the way. course that includes Wales. I assure the House that my right honourable friend Those steps are part of the answer, though I am the Leader of the House of Commons and chairman sure that more can and will be done. However, they do of the Devolution Committee, to which I have already not answer the fundamental, so-called West Lothian referred, will do everything that he can to resolve the question—how to deal fairly with legislation affecting West Lothian question before the election, and I applaud England. For the people of England this is a matter of his efforts and commend them to this House. It cannot fairness. Who decides their laws? With further devolution be clearer that now is the time for a better and fairer to Scotland, Wales and Northern Ireland, we must settlement for the whole United Kingdom. We are ensure that the voice of England is heard as well. This absolutely committed to the timetable set out for means establishing a clear principle. When decisions further devolution to Scotland. We are committed to affect only the people of England, they should be providing further powers to Wales and to meeting the made by—or with the consent of—the MPs whom special needs of Northern Ireland. We on the Conservative those people have elected to represent them. Benches are committed to bringing forward a solution There has been much talk that a constitutional to the West Lothian question before the end of this convention must discuss all these issues before we can Parliament. There will be a time and a place for a make progress on the matter of English votes for constitutional convention but that should not be a English laws. I reject that suggestion. A convention device to prevent the other issues before us being may well be desirable, but it should not delay progress addressed now. We are all responsible for ensuring on the West Lothian question. At a time when we are that decisions are made fairly and in the interests of all looking again at devolution to Scotland, Wales and people in the United Kingdom. Now, more than ever, Northern Ireland, it cannot be right that England we must uphold that responsibility. I beg to move. should be left out once again. To those who argue that we are moving too quickly, I remind the House that 3.56 pm we have been discussing the question for at least the last 17 years and that, in that time, we have had Baroness Royall of Blaisdon (Lab): My Lords, I am plenty of material to inform us. From within my own grateful to the Leader of the House for agreeing to party, for example, my noble friend Lord Norton’s table this significant and necessary debate in government Commission to Strengthen Parliament made considered time. I have long recognised the importance of recommendations in 2000. More recently, noble Lords constitutional change, and I am proud of what my will recall the work of the McKay Commission in Labour Government achieved. But in recent years, 2013. A commitment to address the problem has been with the country facing so many challenges, many as a in the last three Conservative manifestos. consequence of coalition policies, I felt that such changes should not be a priority for legislation. However, In Scotland, Wales and Northern Ireland, all the the experience of the Scotland referendum has made major parties have come together across party boundaries me think again, and I am now firmly of the view that to work towards new settlements. It is only at Westminster, we must urgently consider profound changes in our on the issue of fairness in England, that the Opposition governance. have not accepted our invitation to move the issue Thomas Paine said: forward. It is a shame. As a member of the Devolution “Society in every state is a blessing, but government even in its Committee, I was looking forward to working with best state is but a necessary evil; in its worst state an intolerable Members on the Benches opposite. one”. 1205 Scotland: Devolution[LORDS] Scotland: Devolution 1206

[BARONESS ROYALL OF BLAISDON] all times be led by the outcome of the referendum. The Government, Parliament and our politics have for result indicated that people wanted a strong Scotland too many of our citizens become intolerable. There is inside a strong UK with the continuation of sharing much that we can learn from Scotland’s referendum: both our resources and achievements. the tremendous participation was a shot in the arm for The necessary further devolution to Scotland, together democracy.People thought that the result really mattered. with the clear discontent of the British people, means There was great passion in the yes campaign and the that it is imperative that we consider and address the no message, and in many ways they both reached the English constitutional anomaly. England has been same conclusion, that the status quo is simply not tolerant for a long time and I understand some of the acceptable. What it clearly illustrated, despite the frustrations expressed. However, English votes for English resounding outcome in favour of the union, is that laws is not the answer. people feel powerless that they have no influence over distant decisions taken for them rather than with The Cabinet committee, referred to by the noble them. As with their fellow citizens in England, Wales Baroness, chaired by William Hague, hastily convened and Northern Ireland, people in Scotland want power and meeting behind closed doors, simply will not do. closer to where they live, rather than what they see as a People will no longer tolerate a Westminster stitch-up, cosy circle in Westminster and Whitehall. They want when what our country needs is an open, transparent this because they are fed up with inequality and being discussion. A piecemeal approach to constitutional left behind while those at the top continue to thrive. change for political advantage is unacceptable. Embittered They are disappointed by what they see as the “yah, nationalism is always wrong. The fact that some in the boo” of party politics, which either bores them rigid party opposite want to put what the Telegraph calls or reinforces alienation, and they are angry about “English home rule” at the very heart of their election being let down by elite decision-makers—not just in campaign is not a sound basis for action. In fact, it is politics, but in the banks, media, police and church. In morally wrong and further erodes trust in our politics. a nutshell, people’s faith in some of the major institutions The future governance of our country is much bigger of our country has crumbled. than one party’s demands or vision. As Vernon Bogdanor pointed out in an excellent article last month: Granting votes at 16 was a real lesson for the UK as a whole. I have long supported this policy, which has “the British constitution is not the private property of the Conservative party or”, now been adopted by both my party and the Liberal Democrats. My view was reinforced this morning by a any other party. He continued: meeting with a hundred National Citizen Service leaders, “A constitutional settlement, if it is to be lasting, needs the and I was delighted to hear my noble friend Lady support of all parties, and endorsement by the people as a whole Liddell of Coatdyke say recently in the Chamber: after measured debate”. “I was one of the people who thought that it was wrong for the English votes for English laws, of which, contrary franchise to reduce the voting age to 16. I was comprehensively to expectation there are few, is a purely separatist proved wrong. I heard some of the best debates I have ever heard proposal and one that would produce a two-tier system in a lifetime in politics from 16 and 17 year-olds”.—[Official that would enshrine existing inequalities; drive a wedge Report, 16/10/14; col. 295.] between the Scottish and English systems of government; Like her, I urge the Government and the Hansard and risk the future of the Union, when what is needed Society to consider the specific lessons to be learnt is a constitutional reform that strengthens its integrity. from empowering young people at the ballot box, then Earlier this year, colleagues in the Lords Labour act on their findings. group published an excellent report entitled A Programme I take this opportunity to pay tribute to those for Progress. Among its recommendations was the Conservatives who during the referendum campaign setting up of a constitutional convention. The group were committed to the union. The party’s leader in was, indeed, prescient. My party leader, Ed Miliband, Scotland, Ruth Davidson, and the Prime Minister has announced proposals for a constitutional convention both pulled out all of the stops to secure a no vote. rooted in the UK’s nations and regions. It would However, soon after the counting ended and the address the need for further devolution, not just in results began to emerge, Mr Cameron, I am afraid to Scotland, Wales and Northern Ireland, but in England say, reverted to type. He parroted the response of his too, and reform of Westminster, including this very general election strategists and political advantage House. It is the best means of arriving at a consensus took centre stage, by making the link between the on the governance of our country and it would give promises made to the people of Scotland and English our citizens a stronger voice in politics. votes for English laws. Once again, Mr Cameron was I recognise that this is also policy of the Liberal caught looking over his shoulder at the threats from Democrats, so I strongly urge the noble Baroness to within his own party, along with UKIP’s bluster, rather commit the Conservatives to something that has broad than responding to the needs of our country. support, including among civil society and our citizens. The Prime Minister, the Deputy Prime Minister Now is not the time for partisanship. Consensus has to and the leader of the Opposition made a commitment— be the way forward and we should learn from the indeed, a vow—to further strengthen and empower experiences of Ireland’s post-2008 constitutional the Scottish Parliament. My party is participating in convention and Scotland’s own pre-1997 convention. the process under the leadership of the noble Lord, The process must be time limited and involve not Lord Smith of Kelvin, in a spirit of partnership and just the political class. A convention driven by the co-operation with others. I would be grateful for an people, for the people, with views and voices from assurance from the Leader that the commission will at communities across the country would mean that change 1207 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1208 could be part of addressing feelings of powerlessness but might hold similar views. Such an approach could in the face of globalisation and its impacts. It would also help to deal with the false promises of the SNP encourage participation in the decision-making process, and its political bedfellows, for whom a centralised—a both within our new constitutional arrangements and more centralised—Scotland is everything. the democratic system that it delivers. It is only two short years since that wonderful Greater devolution is at the heart of my party’s summer of 2012, when we all came together to celebrate policies, with radical plans to disperse power and the Olympic and Paralympic Games. The Games may responsibility downwards. My right honourable friend, have lasted just one month but they were the culmination Hilary Benn, has announced a new English deal, in of a decade’s hard work from the initial bid to the which the equivalent of £30 billion pounds of spending event itself. This was not the achievement of any one would transfer away from Whitehall. This is crucial party: we all played our part in making it a success, because, notwithstanding what the noble Baroness and that work goes on through the benefits of the says, right now our country is too centralised. Only a Olympic legacy. quarter of public spending is at a local or regional In many ways, the glorious summer of 2012 already level compared with an OECD average of a third, and seems a long time ago: our huge feeling of optimism our subnational taxation is 1.7% of GDP compared and togetherness—dare I say “one nation”?—as people with 16% in Sweden. in communities across Britain took an interest in A report released last week by the City Growth sports to which we usually pay little or no attention Commission, chaired by Jim O’Neill, focuses on how just to see how well the Team GB competitor had to push power down to our top 15 metropolitan areas. done; our excitement in looking at the medals table Starting from the position that “This is the age of the evening after evening to see how far we could climb, city”, it makes an eye-catching observation that these competing with the likes of China and the US; our 15 areas, performing to their potential up to 2030, pride in the modern, diverse, outward-looking, optimistic could net an additional £79 billion for our economy. Britain that was on display during that extraordinary However, it is not just about cities; our more rural and opening ceremony; those wonderful volunteers, the coastal areas are just as important, as recognised by Games makers; and of course that “Super Saturday”, the excellent review of my noble friend Lord Adonis when Jessica Ennis, Greg Rutherford and Mo Farah entitled Mending the Fractured Economy. They, too—the all won gold in what must have been the greatest counties within county regions—need greater powers 46 minutes of British sporting history. We felt like a to chart their own course on infrastructure, skills and nation at ease with itself and we felt like a country that employment. could achieve anything we set our sights on if only we City regions and county regions are of course already put our differences aside and worked together. taking shape across England. Councils of all political Two years on, that feeling has gone. We have seen a persuasions understand that working together, whether sometimes bitter referendum campaign in Scotland, to deliver better local services, be more efficient in the the debate about Europe and immigration gets more use of public money or market their economic and intolerant and feeds people’s fears, and distrust in cultural potential on a wider international stage, makes politicians and government goes from bad to worse. sense. As a consequence, they are building up local We are not, however, going to find solutions with university, IT and service sectors with the jobs and partisan politics and playing people in different parts prosperity that all that promises. The cohort of authorities of the UK off against each another. A constitutional around big cities such as Manchester, Liverpool and convention will not resolve all of our problems but it Birmingham has been doing this for years, as, too, are would certainly make a start. less urban areas such as Derbyshire and Staffordshire. Therefore, it is no wonder that some are now saying 4.10 pm that if it is good enough for one part of the UK, why not the rest? Many who voted yes in Scotland’s referendum Lord Tyler (LD): My Lords, today I am celebrating: did so not out of a new-found belief in Scottish the concept of a federal approach to our previously nationalism or support for gesture politics; they voted grossly overcentralised system of government seems yes because they believed that nobody else was listening to have come of age. After a political lifetime promoting to their concerns that politics was not working for this concept, I am delighted that this f-word is no them and their families. Nobody was offering them longer considered unutterable. Perhaps we should also hope of better times, if not economically then at least allow two c-words to be used in polite political society: an opportunity to flourish and grow. The conversations the Commonwealth of Australia has something to that our great parties wanted to have with them often teach us, as does the Confederation of Canada. We started from a different premise and, as such, failed to are so insular in this country that we have failed to reflect what people were actually worried about. examine the good examples in other mature democracies, It would seem to make perfect sense, therefore, that even when we Brits had a hand in devising their Scotland should be looking to devolve internally in constitutions. I will make three broad points. the same way as England—not just to city regions First, I hope and trust—and this has been evident around Glasgow, Dundee and Aberdeen but perhaps from the contributions so far—that there is complete to county regions, too, with more powers closer to unanimity across the House and the three main home for local authorities to work together, influence parties that the delivery of the vow to the people of change and offer the promise of a better future not Scotland will not be delayed by any proper considerations just to those youngsters who voted yes but to their of the implications for other parts of the United younger siblings who were not yet old enough to vote Kingdom. That is important for all sorts of reasons. 1209 Scotland: Devolution[LORDS] Scotland: Devolution 1210

[LORD TYLER] change. That is not the initial change that is so critical. Nothing could stoke up further resentment, increase In setting that up, we would have to be clear what the disenchantment with our whole representative democracy options for such a committee would be. and, indeed, play into the hands of separatists, more First, it could be an impotent talking shop—there dangerously than delay and dithering over this. is plenty of precedent for this. If, as with the McKay Secondly, there is also a widespread recognition proposals, the full House of Commons, the United that there are consequences of greater devolution for Kingdom House of Commons, and your Lordships’ the way in which we legislate and apportion tax House were simply to overrule everything that was responsibilities and expenditure here in Westminster said in the English Grand Committee, how would that and Whitehall. Thirdly, there must be recognition that play with our fellow citizens? That would just make the most oversimplified, knee-jerk, hasty reaction of the problem worse, not better. calling for English votes for English laws is simply A second option would clearly be a full legislative inadequate: EVEL is not enough. It is far from simple; decision-making parliamentary vehicle. If so, we must decisions taken on English matters in the United face up to the fact that there would be a need for an Kingdom Parliament have financial implications for Executive to deliver those legislative decisions. Do we the whole union. It is hard enough to define what an want an English Executive with an English First Minister? English Bill is. As my noble friend Lord Thomas has I do not think that the public are ready and willing to already said, very often it is an English and Welsh Bill go in that direction. and falls outside that definition during its progress Thirdly, the committee could have the power of through both Houses. veto to prevent MPs from Scotland or Wales, or Of course, the United Kingdom Parliament is not wherever that legislation was likely not to have any unicameral. There are two Houses and we here do not effect, pushing it through at the risk of constant cost represent any one territory: we are United Kingdom and tax implications exclusively for England—or England Peers. Only an elected House—so far elusive—could and Wales. That veto option seems the most likely to resolve that anomaly. However, in the mean time, the prevail. It underlines why so much legislative power McKay commission completely ignored our evidence needs to be transferred out of Westminster before it on this point. What would this House do if its happens, because it is only half the answer—or no recommendations were accepted by the other House? answer at all—to the English question. Although we must be conscious that obsessing about We must also consider that each devolution settlement England per se does no service at all to the already so far has built in a firm commitment to fair increasing pressures for true subsidiarity and a bottom-up representation. That is why my right honourable friend approach to devolution, we must recognise that within David Laws, on behalf of our Party, has set out this England there are pressures for devolution. Simply essential element for a new parliamentary vehicle, if creating an English institution does not deal with the there is to be one, to be truly and fairly representative underlying problem of overcentralisation. People are of English voices, in a submission to the Cabinet already rightly asking, if Scotland and Wales, with five committee. and three million people respectively, can take significant In his Guardian article on 2 October, David Laws legislative and fiscal power, why not London or Yorkshire? set out an unanswerable case when he stated: Indeed, might it not again be time to ask the people of “Every time Westminster has devolved powers in the past—to the north-east—or parts of it—whether they want the Scotland, Wales, Northern Ireland and even London—it has top-down, minimal devolution-lite they were offered insisted that the devolved authority that wields those powers be in 2004, or whether they would prefer something put together on the basis of proportional representation … What serious, along the lines already experienced in Wales was right for Scotland, Wales, Northern Ireland and London is and which we hope will be increased there. In Cornwall, also right for England”. of course, there is substantial demand for an assembly That approach was endorsed by the Economist on to take on similar responsibilities. 21 September this year. Dealing with this demand for real legislative From these Benches, we will continue to argue that devolution—not just administrative decentralisation—is further devolution to Scotland must proceed immediately. a construct that people in England already recognise, We should go even further than the present Wales Bill and we must require a bottom-up process, not a top-down does for Wales. We should introduce a devolution-enabling imposition, as a vital first step in sorting out the Bill to bring about transfers of more power from this English question. I say to my noble friend on the Front Parliament to other institutions in England, and those Bench that the Localism Act did not instil in the institutions should be elected on the basis of fair British people a recognition that we have adequate representation. Residual English powers operated in local accountability in England. It simply is not there. Westminster by a Grand Committee should be similarly That is not enough. It was never thought to be enough. subject to fair proportionality so that English votes and English voices represent the will of English voters. Clearly this would leave much less for the Westminster Next year, 2015, is the 800th anniversary— Parliament to do. There would be far fewer English issues. There would be less for Whitehall to do, offering an opportunity for substantial bureaucratic slimming. Noble Lords: Order. However, I and my colleagues acknowledge that there would still be some distinctly English issues. For those, Lord Tyler: I am coming to a conclusion. Next year it may be that an English Grand Committee might be is the 800th anniversary of this Parliament, as set out an appropriate mechanism—but that is a consequential in the Magna Carta. Barons led the route to greater 1211 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1212 democracy 800 years ago. I hope that Barons and be some link so that the people understand where the Baronesses will make a very positive contribution to money comes from and what the consequences are of the next move forward on devolution. overspending. At Stormont today they are in crisis because they 4.18 pm cannot control their own budget, something that has never happened before, despite being in charge of this Lord Empey (UUP): My Lords, this debate is on for years. It is a mess. My fear is that, unless there is a devolution following the Scottish referendum. Unlike clear link between what is spent and clear accountability many colleagues in this Chamber who, after the Scottish by the devolved regions for what they spend, there is referendum, expressed the view that it was a great no way that we will have any United Kingdom identity victory, I do not think that is the case. It was a damned or brand. It will simply be Holyrood or Cardiff or close-run thing. Not only that, having succeeded in London or Belfast or wherever. winning, the ink was barely dry on the ballot papers when we were busy snatching defeat from the jaws of We have a lot of work ahead of us if we are to have victory. I am no constitutional expert but there are two a coherent constitution that meets the needs of our things that I know. First, you cannot sensibly reform a citizens. I feel very strongly that in Northern Ireland constitution such as ours on the hoof. after 1920, Whitehall and Westminster thought the problem was solved. Northern Ireland was dealt with The second thing I know is that we are perfectly by a junior officer at the back of an office in the Home capable of destroying a similar constitution on the Office. I believe that, if this Parliament had had a hoof. These things need to be thought through, and meaningful role, oversight of and a say in what was we have had years to think them through, but little or happening in Stormont, we would never have got into nothing has emerged. All of a sudden we get a shock. I the mess we got ourselves into in the 1960s and 1970s. have to say to noble Lords that it does not matter what We are going to repeat the same mistake, because it we do with the vow that was made by our leaders. Of was clear when the Northern Ireland (Miscellaneous course it must be implemented, but whatever is put Provisions) Bill was brought forward earlier this year forward will not be enough because the people who that the same thinking and mentality are still there. will reject it have no gain to make by accepting it. I can say only that I am a great believer in our That is my biggest concern. I have always been in union—a great believer in the United Kingdom. The favour of devolution, and I accept that there will chairman of our Constitution Committee, the noble inevitably be an asymmetric situation in the United Lord, Lord Lang of Monkton, who will speak shortly, Kingdom. I also accept the frustration of the people spelt out a vision for the union for the years ahead. We in England. Let us face it: we have a Cabinet Minister need that vision first, and then we have to decide what outside this building telling the people of Scunthorpe the function is, and the form will follow. I think we are how many times a month their bins are going to be doing it back to front. emptied. That does not strike me as being somewhere where power should be, so we have a long way to go and we know it. 4.24 pm As the noble Lord, Lord Tyler, asked a moment The Lord Bishop of Chester: My Lords, bishops ago, what will become of your Lordships’ House? Are need to tread warily when discussing matters Scottish. we to go around with badges on us, or with flags on Although I am thoroughly English by birth and our foreheads, to say when we can go into a Lobby background, I can, I think, claim rather closer connections and when we cannot? What are we going to do? These with Scotland than some whom I observe wearing the things are fundamental and can be dealt with in a kilt at the Chester Caledonian Association dinners coherent manner only when everybody sees the working which I regularly attend. out of the constitutional changes that are inevitable Let me explain. I have a Scottish wife—my one and now. We have set our shoulder to the wheel. Did we only wife, I hasten to add—and two Scottish degrees, intend the machine to run down the hill out of control? all three from Edinburgh. I trained for ordination in Probably not, but that is where we are. Scotland as somebody sponsored by the Scottish Episcopal The nationalists in Scotland will never accept anything Church, and I have owned a house in Scotland for that we do here unless they get their own way. People 25 years and will happily retire there in a few years’ like me know how nationalists think. It does not time. I am Anglican co-chair of the current Church of matter what we do in Stormont either—the same thing England-Church of Scotland ecumenical conversations. will apply. So tread I shall, if nevertheless warily. If I have learnt The noble Lord, Lord Sewel, is in his place, and I one thing in my discussions with the Church of Scotland, want to say something about the convention in his it is that were the Kirk ever to contemplate having name, which has been mentioned. That roughly said bishops, which remains, I think, doubtful, they would that this Parliament would not interfere in the day-to-day need to be very different from English bishops to be affairs of the devolved Assemblies. I understand that. acceptable. However, as a result of that, we have turned the My learning curve about Scotland began soon after devolved Assemblies into giant ATMs. The politicians I had enrolled at Edinburgh University in 1974. I was in them spread out the largesse—and I was one of in the student common room watching a football them. We were spending billions of pounds, and if we match between England and Russia. Russia scored did not have enough to spend, this place was to blame. first, and the whole room exploded with joy and It was a shot to nothing, as snooker players would say. everyone cheered. Had it been in an equivalent English We cannot possibly win in Westminster. There has to university and Scotland had been playing Russia, the 1213 Scotland: Devolution[LORDS] Scotland: Devolution 1214

[THE LORD BISHOP OF CHESTER] in a slightly paternalist, patronising way needs to be English students, I think, would have been enthusiastically consigned firmly to the past as the new devolution supporting Scotland. But in Scotland things were arrangements are negotiated. I hope that is the key in clearly different. I suddenly awoke to the fact that I which all that is now going to be discussed is conducted. was in a foreign land. Finally, I would be cautious before drawing any What I was beginning to learn 40 years ago was that lessons from the recent referendum for wider questions Scotland is self-consciously a different nation from of devolution in the UK. What will now happen in England. In all my subsequent contact with Scotland, Scotland reflects the particular historical dynamic of not least during the recent referendum campaign, English-Scottish relations. Perhaps elements will be which I observed closely, I have been on a progressive replicated in relation to Wales and Northern Ireland, learning curve about the separate dignity of Scotland and even some regions of England, but not necessarily as a nation. I think that the English often find that so. The resounding outcome of the referendum in the hard really to take in. Even some aspects of the recent north-east on a regional assembly a few years ago campaign rather undergirded that to me. illustrates the specific nature of the Scottish question. Let us never forget that, for most of human history, To regard the English-Scottish relationship as simply Scotland has been a fully independent country, with the primary and maximal example of broader devolved its own culture, and Hadrian’s Wall stands as testament relationships in the UK would be to invite a repetition to that. The question on the ballot paper, “Should of recent errors of judgment. Scotland be an independent country?”, ought to have been, “Should Scotland revert to being an independent 4.31 pm country?”, which is how it has been for most of the time. I say all this as a supporter of the union. Lord Lang of Monkton (Con): My Lords, it is a great pleasure to follow the right reverend Prelate and to reassure him that the Romans did indeed get well Baroness Quin (Lab): I am grateful to the right into Scotland—but it did them no good. I am sure the reverend Prelate for giving way. May I point out that whole House looks forward to the maiden speech in Hadrian’s Wall never has been the border between today’s debate of the noble Lord, Lord Lennie. England and Scotland? It is not near the border today I welcome this further debate on devolution, although and, in fact, runs through the middle of the city of it takes place in greatly changed circumstances. What Newcastle upon Tyne. should be happening now? I think the ideal answer is calm reflection, consultation and consideration of a The Lord Bishop of Chester: I do know where way forward, not just for Scotland but for the whole Hadrian’s Wall runs, but the fact that the Romans did United Kingdom. Unionism won the referendum but not get to the rest of this island is significant, even for a secure future it is clear that the union now has to though I fully accept that the border, which has moved change. I believe now that a wide consultation process over time, is not coterminous. But the very fact that should take place and that it should involve the interests the Romans did not conquer Scotland reinforces the of all the component parts of the United Kingdom. underlying point I am seeking to make. Few can now dispute the causal link between the I chose not vote in the recent referendum, although establishment of a Scot-centric, lopsided, asymmetrical, I was entitled to do so, because I felt it was a question tax-free, unstable form of devolution in the Scotland which the Scots should decide. If I had voted, I would Act 1998 and the slow but accelerating landslide towards have voted no. However, I found the recent no campaign separation that has ensued. That approach has not disturbing to the point of embarrassment. It was brought stability or fairness. Successive changes have conducted largely on negative, almost threatening terms— fed the flames and come close to destroying the United “worse apart” rather than “better together”. When Kingdom. Under that approach, devolution has become this did not seem to be working, after the second a separatist policy. It has been the gift that keeps on televised debate in particular, the strategy changed taking. The slogan that Labour coined in the 1990s, towards promises and inducements, with the Prime “We didn’t get the Government we voted for”—that Minister suddenly to the fore. How much better it self-deluding piece of constitutional chicanery—is the would have been had he headed up the principled case same slogan that the separatists have picked up and for the union from the start and made that case on a run with ever since. That is why we have to pause, step positive basis, as indeed did former Prime Minister back and bring the whole nation into the debate. That Gordon Brown. is why I am uneasy about the rush to action to which I would draw two conclusions from what I have said we all find ourselves firmly committed, although of so far in relation to today’s debate. First, the English course we do have to honour the commitments that in particular need to be very careful not to be seen to have been given. take the union with Scotland for granted—a lot of this I would like to try to be constructive, in particular is about perceptions—or to take the union as a foregone to seek information from the Government to head off historical conclusion, which it clearly is not. The English any threats that the latest devolutionary proposals and the Scots may share a great deal but fundamentally create, because I think I see a potential impending they are different cultures and nations which, for the problem. The core of what is contemplated now is the past 300 or so years, have formed a richly creative raising of a higher proportion of what the Scottish political union. That union now needs to be nurtured Parliament spends from direct taxation by it, instead on a new basis, especially given the dismantling of the of from a grant from the Treasury. There will of British Empire. The English tendency to view Scotland course be a read-across in due course to Wales and 1215 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1216

Northern Ireland. Of the variations on offer, I support block, thus second-guessing how the Scottish Parliament the Strathclyde commission’s proposal to transfer the might spend it? Then the block grant would no longer whole of income tax as it forces the issue directly be a block grant. towards the pockets of those who will have to pay. It I ask my noble and learned friend to tell the House will be a democratic stimulus. But my concern is this: I how that transition will be managed. What will happen do not understand how it can possibly work. The to that £4 billion cushion that I referred to? It is an funding system for public expenditure in Scotland is excessive figure, but some of it is deserved and, at the much misunderstood, in particular the Barnett formula. least, a transitional period is needed if it is to disappear. A formal submission from the Scottish Labour Party Will there be what is urgently needed across the whole to the Smith commission referred to the “Barnett United Kingdom: a new, needs-based study of relative grant”. But there is no such thing as a Barnett grant. It need and new arrangements introduced to meet what does not exist. Barnett is a mathematical formula—no will be fair and just forms of support, once the facts more, no less. It has no funds to grant. The funds have been accurately established? The matter is now come from the Treasury’s Scottish block grant, annually becoming a burning issue. disbursed. The block grant is the key to the whole That brings me back to my central theme. It is only thing. The baseline of that block grant is not recalculated by establishing fair and balanced systems and powers every year except to take account of relative population of government across the whole United Kingdom, changes. Rather, it is the accumulated mass of past varying in detail but harmonised in their underlying settlements and favours won for Scotland by past principles, that we can hope to achieve the stability administrations, to which is added a new sum each that will secure the long-term future of the United year. It takes no account of relative need. The Kingdom. disbursement of that annual sum is where the Barnett formula comes into play. 4.37 pm I will spare your Lordships the details of how the Baroness Liddell of Coatdyke (Lab): My Lords, mathematics of the formula works. It is intended to, more than 2 million people in Scotland voted no; and it does, erode gradually—very gradually—the excesses almost two to one. That is where the mandate lies. The contained in that grant. In due course, it will become people of Scotland wish the United Kingdom to remain increasingly irrelevant as the block grant itself is cut united. We must be very cautious in our deliberations into. It is the block grant that enables Scotland still to that we do not jeopardise that. Some of the issues raised spend much more per head than England on many since the devolution referendum put that in peril. public services, and England and Wales are right to Let us start with English votes for English laws, feel short-changed. It is the block grant that is now following what the noble Lord, Lord Lang, said. It is about to be hacked into by the 10% income tax provision very difficult to have English votes for English laws in the Scotland Act 2012, not yet implemented, and by because of something called the Barnett consequentials. whatever further devolution of taxation the Smith I will not go into the detail of the Barnett formula—I commission decides on. have only six minutes and it has taken me about six years to understand it—but the key issue is that we I wonder how the product of that 10% income tax must not have two levels of Members of Parliament. and future tax transfers will be calculated and the That is absolutely essential. We begin to destroy the block grant therefore cut. The impact of that and the United Kingdom if we go down that route. further tax transfers proposed could be substantial, reducing the block grant by a large amount. Out of The other issue, again taking up a point from the date though it is, and largely irrelevant as a true noble Lord, Lord Lang, is about proposals for measure of relative need, the block grant is a pot of the devolution of taxation. One of the key issues in the gold compared to the uncertainties that lie ahead with referendum was the pound; it was central to the campaign. its replacement by Scottish income tax. The tax base I should be very grateful if the noble and learned in Scotland is weaker than in England. There is a Lord, when he is summing up, could explain to me larger public sector and correspondingly smaller private how a currency union, which is what sterling is, can sector. With the machinations of the nationalists stirring operate without a fiscal union as well, leading to up uncertainty and loss of confidence, that is likely to proper monetary union. We must be very careful that get worse. Investment decisions and productivity look we do not scupper that. endangered just when they will need to be enhanced. If you read the Scottish press and look at the But the cushion embodied in the block of some £4 billion, atmosphere in Scotland, you would think that no had which Barnett does not touch, could now evaporate lost. We have a responsibility to every one of those along with much of the block. The consequences for 2 million to recognise the mandate that they have current spending levels and future taxation could be given us. They were the silent majority. The noble extremely serious. Baroness the Leader of the House referred to how wonderful the devolution referendum had been with I have long argued that the surplus that has built up the high turnout. Frankly, it was the worst election I in the Scottish block grant should be addressed to have ever seen. It was divisive, it was aggressive, it was bring fairness to the rest of the United Kingdom, but thoroughly unpleasant and it did not represent the in the context of tax changes now facing us, we good people of Scotland, whom we saw weeks beforehand urgently need clarity on that potentially very difficult at the Commonwealth Games welcoming the world. issue. What plans has the Treasury to erode or retrieve And, yes, in some places there was an anti-English part of that £4 billion? Does it plan in some way to feeling, and Mr Salmond and Ms Sturgeon were the identify and hypothecate spending within the reducing joint architects of that. 1217 Scotland: Devolution[LORDS] Scotland: Devolution 1218

[BARONESS LIDDELL OF COATDYKE] 4.44 pm The division is having an impact even yet on Scottish businesses. Some of your Lordships will have seen the Lord Steel of Aikwood (LD): My Lords, it is a analysis of Standard Life the other day recounting particular pleasure to follow two former Secretaries of their strengths, their opportunities and their weaknesses, State for Scotland in this debate, given the important and the risk still being the risk of independence. The speeches that they made. noble Lord, Lord Empey, was absolutely right to say I begin by echoing something that was said by the that we are going at this the wrong way round. This is Moderator in the sermon during the reconciliation piecemeal, reacting in the space of weeks to a situation service at St Giles’ Cathedral. He pointed out that that has taken generations to build up. The start of this despite the flaws, which the noble Baroness was quite long progress towards devolution may have been 300 years right to mention, the fact is that the turnout produced ago, but in my lifetime it was when two royal commissions an enthusiasm for political discussion and debate in were published—Kilbrandon and Wheatley.They were Scotland that we have not seen before. It was 84%; done separately; if they had been done together, the we have not seen a turnout like that since my by-election outcome would have been very different indeed. in 1965. That gives me the chance to say how proud I As we move into this next phase of looking at the was that the Scottish Borders was the area that consequences of devolution, I would like us to concentrate produced the strongest positive no vote in the on how we bring our society together. Some of that is referendum—apart, of course, from the Orkney Islands, bringing the business community together. Some of before my noble and learned friend intervenes. However, that is recognising that women very clearly voted for I discount Orkney because I think that if there had no. I had never gone to someone’s door and had been a yes vote, they would have followed that by someone say to me, “I’m voting yes”, and then shake voting to go back to Denmark. On the mainland of her head and say, “I’m actually voting no, but I’m Scotland, the borders had the highest turnout. scared to say that I’m voting no”. There was a silent The immediate consequence of the referendum is majority that was frightened to say how it was voting. the appointment of the Smith commission. I am perhaps I know of one lady who put yes stickers on her car a little more optimistic about it than many others are. I because she was frightened of getting a stone through know that it has been given a tight timetable but my the windscreen, despite the fact that she was voting no. former constituent the noble Lord, Lord Smith, is an We must bring society together. We had the appalling extremely able and patient man. More importantly, I situation of Louise Richardson, the principal of notice that each of the four political parties has St Andrews University, being bullied by the First appointed to that commission people of good Minister’s office to support devolution. That is against common sense. I include in that the SNP because everything that devolution is about. while it could have produced some wild cards, both I realise that these are difficult issues for all the John Swinney and Linda Fabiani, who I know from United Kingdom. There is a democratic deficit in this my time in the Scottish Parliament, are sensible people country, and it applies to England. The way to resolve who will work with the others in that commission to it is not with a sticking plaster; it is by looking in depth try to produce a consensus agreement. It is perfectly at the issues that we have to confront and by being obvious that no political party will emerge from that confident enough about the strength of the union. We commission with everything that it wants. That cannot were all far too apologetic about the union. It was a be done but if there is good will in that commission, great support to all of us who were involved in the which has certainly got off to a good start, there is no campaign to receive messages from down south. I am reason why it cannot come up, in a very few weeks’ in front of my noble friend Lady Quin, who was on time, with a package of further measures amounting the doorsteps more than I was, and my noble friend to the maximum of home rule consistent with common Lord Soley, who was very active in getting the English sense. vote together. Let us not squander the benefits of the Going beyond that, we have to look at what happened union. It has brought us together and served us well on the morning after the referendum. The Prime Minister for many years. Do not let those who are doing a lap made a great mistake by coming out into Downing of victory in defeat undermine the union by the back Street at seven o’clock in the morning. Nobody, not door. We have a responsibility to stand up and defend it. even the Prime Minister, should be out at seven in the This House has a role to play. A constitutional morning making pronouncements on anything, in my convention sounds like a very good idea, but, frankly, view. I am glad that my noble friend Lord Ashdown is what I would like to see is a royal commission on the not his place because I used to stop him phoning me at constitution that looks in detail at the devolution 6 am. In fact, I gave a general instruction that nobody settlement and at the role that your Lordships’ House was to phone me before 10 am, which is a much more can play in that as a House that represents and has the sensible approach. However, it was a disastrous statement potential to represent—hopefully, directly elected—every that the Prime Minister made at 7 am. Trying to link part of the United Kingdom, with the background, the immediate issue of further powers to Scotland experience and knowledge that this House brings together. with the English question was a serious error. I keep hoping to escape Scottish politics—I went to However, we have the McKay commission, which the other end of the world to escape it—but thank was published some years ago and has been around a goodness the people of Scotland made their voice long time. It simply proposed that there should be an known clearly and without question. We must not English, or an English and Welsh, Grand Committee. prevaricate. They have the mandate, which is for the I see nothing wrong with that. My noble friend Lord union of this country. We must not squander it. Tyler was right to say that it might just be a talking 1219 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1220 shop but I was a member of the Scottish Grand When I spoke near the end of the debate at the end Committee in my early days, which was a talking shop of the summer, when we were still wondering what the but quite a good one. We had debates on our own result of the referendum would be, I spent a little time issues and dealt with the early stages of legislation, trying to inject a note of caution. It seemed to me that although at the end of the day the whole House of there was a real danger that, if the vote had gone the Commons had a vote. There is no reason why an other way, things would have moved extremely fast, to English Grand Committee could not be composed on the timetable that Mr Salmond was going to set for us, the same basis. and we would not be in a position to resist whatever Admittedly, in the early days of the Scottish Grand demands he was going to make. Of course, the vote Committee we had conscripted English members to has gone in the other way—to preserve the United make up the party balance. That was madness; they Kingdom—but I still feel a sense of unease about the were usually appointed by the Whips on the basis of commitment that was made in the closing days of the their being guilty of misconduct. They would say, campaign. In a way, that is playing into the same trap “Two days on the Scottish Grand Committee for you where we find ourselves with a commitment to achieve if you don’t turn up for the three-line whip tonight”. a great deal within a very limited period of time. Eventually, they were abolished. My noble friend Lord I am sure that the noble Baroness the Leader of the Hamilton, who is not in his place, claims not to House was right to underline the commitment that remember an episode which brought the conscripted was given, because it would be quite unthinkable, as members to an end but I remember it. We were having the noble Lord, Lord Tyler, said, to withdraw from a debate on tourism in Scotland and, to our horror, that now. We have some reasons for comfort, some of Mr Archie Hamilton MP got to his feet. This was which were mentioned by the noble Lord, Lord Steel—in unheard of, as the conscripted members were not particular, the commission which the noble Lord, supposed to speak. He began his speech by saying, “I Lord Smith of Kelvin, is chairing. We can have absolute recognise that by intervening in this debate, I run the confidence in the ability of the noble Lord, Lord risk of not being appointed to this committee again”. Smith, to chair that commission. He has made it clear That was what led to the end of the conscripted that we should leave the commission to get on with it. members. In its latter years the Scottish Grand He is assuring everybody that the essential is that each Committee, as my noble friend Lord Forsyth will well of the participants around the table should have the remember, operated without a government majority. authority to agree what can be agreed. That did not do it any harm. It was a perfectly workable instrument, as I believe an English Grand There is a reason for unease about that, however. Committee could be, too, without upsetting the basic Not everything that everybody is asking for can be nature of our constitution. agreed, and there will certainly be things left lying around which the Scottish National Party will be In the end, we will have to take a long-term look at asking for. I urge caution again that we do not move our systems of government. I am one of those who too fast in giving way to whatever it is suggesting. The strongly support either a constitutional convention or, whole point of the commission is to assume, as indeed as the noble Baroness suggested, a royal commission. I the voters told us, that Scotland remains part of the do not know which would be the better instrument but United Kingdom. That is one of the essential principles. it would need to take time. If you count the pre-period We can draw comfort from that. But there we are; we of the Campaign for a Scottish Assembly, then the have to hold firm to whatever he recommends at the Scottish Constitutional Convention, of which I had end of his discussions. the honour to be the joint chairman, took nearly 10 years to come up with the devolution proposals. We There is another reason for comfort, and that is cannot even pretend that we got those 100% right. It is that we have in existence a framework within which not a quick-fix issue. I believe that we have to move in the result of the commitment can be delivered—that a more federal direction. That is where a replacement is, the Scotland Act 1998. It is a well tried system, for this House—a senate elected by the component which at least has the advantage of a system within parts of the United Kingdom—makes good sense. It which things can be adapted, according to some needs all parties, including my own, to rethink their adjustments of the Schedules that set out the reserve policies on this so that we come up with a proposal for powers and so on. a proper United Kingdom Parliament, where the upper That is under the overall supervision of the Supreme House really represents the component parts of the Court, and perhaps I might just say a word about that. United Kingdom. An essential part of keeping the devolved systems Out of the Scottish referendum can come good, within the United Kingdom was that, ultimately, should and I am more optimistic than perhaps some others in there be an issue about the compatibility of legislative this debate. I wish it well. measures, it would be decided by the United Kingdom Supreme Court. I notice that one of the points being made by the Scottish National Party is that it wants to 4.50 pm abolish all appeals to the Supreme Court—all appeals, Lord Hope of Craighead (CB): My Lords, it is a not only civil appeals but also appeals under the very real privilege to follow the noble Lord, Lord Steel devolved system. There is a great danger in that. I of Aikwood, who has done so much to inform the hope the Minister will assure us that the position of debates in this House. I am sure that many noble the Supreme Court as the ultimate court for deciding Lords will be grateful for the note of optimism which these issues will remain, as it is part of the United he has sounded. Kingdom structure. 1221 Scotland: Devolution[LORDS] Scotland: Devolution 1222

[LORD HOPE OF CRAIGHEAD] Bench today have made clear, this is fundamentally a This morning the Deputy First Minister was quoted question of fairness. It has nothing to do with “morally as saying that the United Kingdom is just, wrong”. What is morally wrong about fairness? Frankly, “a family of nations, not a unitary state”. we all know that it is not about morals; it is purely There is something in what she said, but it is certainly about politics. I believe that that is a very important not the whole truth. The whole truth is that the UK is point. to a very large degree a unitary state because of the I shall speak first about English votes for English structures that hold it together: Parliament—these laws. I have just looked up the Hansard of one of the Houses—the Supreme Court and the other institutions earlier debates that we had in the House of Commons that exist. No doubt the Scottish National Party wishes on devolution shortly after I entered Parliament in to separate them, which is why the proposals about the 1974, a Scot representing an English constituency. It Supreme Court are there, but we must hang on to the was in January 1976 on the then Labour Government’s idea that the UK is united in various essentials; it is proposals for devolution in Scotland and Wales. A not just a family of nations, as we are being led number of colleagues who are now in your Lordships’ to believe. House spoke then, and it is interesting to see how As for the future, I feel, as others have been saying, many of the points made then are still fresh today. I that we have to move forward with some kind of shall give just one quote from my own speech. I said commission to decide how the structures throughout then: the entire United Kingdom have to be designed. Again, “Although I accept the list of subjects which”, I see the Supreme Court as having a vital position at the Government, the end of whatever package may be designed, but we “have put forward for devolution to the Scottish Assembly … it have a framework that could be borrowed and used for seems that there will be a growing demand, which is right in logic and fairness, for the same devolution to be given to England. That England as well as the other parts of the UK. The is a demand that must grow. We have already seen much evidence devolved systems give some kind of sign as to the kind of that during this debate … There is the feeling that the Scottish of framework that might be used. Mention was made people will have a power over the subjects that are devolved to by, I think, the noble Lord, Lord Tyler, of other them that is almost total and complete … whereas Scottish countries that have systems of this kind. The South Members will be totally involved at Westminster in the discussion African constitution is another where you see a schedule of issues that affect England”. with various powers that are devolved to the provinces, I went on to suggest two possible solutions, and concluded: of which I think there are nine. So these structures can “Let us remember that the English also have their rights”.— be used. It is not my position as a non-politician to say [Official Report, Commons, 15/1/76; cols. 676-77.] whether or not that is the right way forward, but we Tam Dalyell was listening intently throughout that have some advantages on which we can build. debate and henceforward argued constantly about We may find as a result of the 2016 elections in what became known as the West Lothian question. It Scotland that the SNP once again moves back with an must be solved now. We surely cannot continue with a overwhelming majority, and that will almost certainly situation in which a Scottish Parliament can have total result in a demand for another referendum. I hope control over health, education and so many other that we do not go down the line of the Edinburgh crucial issues in Scotland—transport, et cetera—while agreement and the Section 63 order that followed it. If in England, Scottish MPs can continue to vote, sometimes there is to be any discussion of a further referendum, conceivably having the crucial deciding votes, on these surely that must be done in both Houses by means of same issues in England. It is relevant in this context to primary legislation so that it can be fully debated in note that the Scottish population is 5.2 million while the interests of everyone—above all, people in England, the English population is 53.1 million. In a vote where Wales and Northern Ireland, who have a very clear the Scottish MPs voting on a purely English matter interest in what goes on in Scotland. could be crucial, what is fair in that for the 53 million? I believe that the solution to this lies in the proposal for the Speaker to be able to denote a bill in the UK 4.56 pm Parliament as an English Bill and that only English Lord MacGregor of Pulham Market (Con): My MPs would be able finally to vote on that matter. Lords, I am hugely relieved by the clear decision of the Scottish voters against independence. The consequences Lord Lea of Crondall (Lab): The noble Lord is if the vote had gone the other way would have been discussing a very interesting point. Would it be fair to severe indeed for the Scottish economy, but also for characterise it as a UDI for England approach, although the rest of the UK in terms of the economic implications, he might not like that phrase? Would that make UDI currency, the division of assets and liabilities, debt, for Scotland less likely or more likely? defence, the EU and international bodies and the need to tackle all these issues when we have so many other Lord MacGregor of Pulham Market: It is really issues to deal with, not least the continuation of the quite simple. If the Scottish people have Scottish economic recovery.It would have been severely disruptive issues, as delineated now, voted upon entirely in the and difficult. Scottish Parliament, then the same ought to apply to We must all confine ourselves to a small number of purely English issues in the English Parliament, and it issues, and I wish to concentrate on two: English votes should be English Members of Parliament who should for English laws, and issues around tax and expenditure, vote on them. including the Barnett formula. As the Prime Minister, I entirely agree with the Leader of the House in the the Government and my noble friend on the Front other place when he said: 1223 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1224

“We must establish the principle that when this House makes or powers in what was being offered to them in either decisions affecting only the people of England, or only the people the Scottish Parliament or the Assemblies. That is the of England and Wales, those decisions should be made only by, or first lesson. with the consent of, the MPs elected to represent them”.— [Official Report, Commons, 14/10/14; col. 176.] We are always behind public opinion on devolution It is high time that we did this. and decentralisation. The evidence from all Governments is clear. It is clear to me. When I argued in the Labour I turn now to tax and spending, both complex and Cabinet for more resources and powers to be given to crucial issues. I have just a few quick points. I hope the North East Assembly, I could not get them. They that we can soon have a full debate on all this. First, were fixed in a central system, and very few of my there are good arguments in favour of more devolution colleagues were prepared to give the north-east the of various tax measures, provided that tax and spending powers it was entitled to, and which they were quite are taken together. In principle, having the possibility prepared to give to Scotland and Wales. The people to raise or lower taxes, while at the same time recognising saw that I was offering a consultative body with quango that there are spending consequences, is attractive. powers—that was all it really was—and they rejected Borrowing limitations must also be taken into account, it. It was another form of local authority. The lesson as should the consequences for UK tax revenues. to learn from that is clearly that we should understand Secondly, what cannot be accepted is the freedom the problems involved and find a proper solution. to lower taxes and decrease revenue, with the expectation Some of the discussions, and the questions posed of consequential upward adjustments in the block by the noble Lord, Lord Lang, about tax are fundamental. grant from the UK Exchequer at the same time. The Barnett formula always comes into it. I remember Thirdly, this raises the whole question of the block arguments in the Cabinet about whether the Barnett grant and the Barnett formula. I well remember the formula is fair. In this referendum, the argument was discussions on the Barnett formula in 1976, when the that Scotland gets far more per head than England. noble Lord, Lord Barnett, was under great pressure to That is an argument about having a fair system, as the reach conclusions on the expenditure settlement. He noble Lord, Lord Lang, said. That means that we has said that, because of that pressure, he had to find a really have to look at that taxation proposal. solution to one particular part of the expenditure Looking at the regions, the population of the north arrangements and that it was a temporary expedient, alone is 9 million and 83% of our population falls never expected to last; he is strongly opposed to its under central government. You want to throw up your continuation. There is a strong feeling in the country—I hands. In the north, we are not very happy about Tory have long felt this in East Anglia—that the formula is Governments, just as the Scots were not. This business unduly favourable to Scotland. Current figures show of English laws and English votes is just a political fix. that public expenditure per head in East Anglia, where It is nothing to do with redistributing power, which is I come from, is £7,865, in England £8,529 and in what devolution and decentralisation are about. Indeed, Scotland £10,152. I believe that this issue must be the McKay commission suggested that it was told that addressed. it could not deal with finance. The White Paper before Fourthly, many have argued that the formula should us does so in a fundamental and radical way, with be adjusted to a needs basis. I have long argued that changes in our tax. When people see how money is myself. A committee of this House reporting in 2009 distributed between nations and regions, we will begin argued that, to get the problem of people seeing that more is being “the Barnett Formula should no longer be used to determine given in a very unfair way. That was part of the annual increases in the block grant for the United Kingdom’s argument that came out of the Barnett formula. The devolved administrations…Anewsystem which allocates resources commission left that alone. The McKay commission to the devolved administrations based on an explicit assessment was concerned only with governance and how you of their relative needs should be introduced”. identify an English or Welsh person voting in the I actively believe that this should be introduced and Commons Chamber. God knows what we would do in that there should be a transitional arrangement. this Chamber, but let us leave that aside. In conclusion, I believe that this must all be tackled The commission deliberately said that it was not in the negotiations and that the Barnett formula should going to deal with English regionalism because it was go at last. This will be a critical part of the negotiations; firmly rejected in the north-east. In all those referendums I hope that this House will have another opportunity in Scotland and Wales there was consultation. That to debate it before they are completed. was mentioned by the noble Lord, Lord Steel, who said that that discussion lasted 10 years. We have not had two days on English votes, with the Prime Minister 5.05 pm then coming out and making that point. He promised Lord Prescott (Lab): My Lords, in the 45 years that a vigorous discussion on decentralisation and alternatives I have been a Member of this Parliament, I have been for the English regions. What discussion took place on involved in the argument for decentralisation and that? I know it was in the manifesto, but you need to devolution and strongly believe in them. I have taken consult the people. If there is a lesson that comes from part in every referendum campaign in Scotland and Scotland, it is that the people took a very strong view Wales and, indeed, in the north-east, where I introduced and participated in a way that we have not seen and failed to get my Assembly. All of them, after a anywhere else in this country, with the type of discussion first refusal, were voted for a short time later in a that took place. The English regions are surely entitled referendum. The point to draw from that is that the to have the same discussion, to find the alternatives public did not believe there were sufficient resources and how they fit in. 1225 Scotland: Devolution[LORDS] Scotland: Devolution 1226

[LORD PRESCOTT] looking at the navel. We need to contemplate that I hear another argument coming up. I know Tam as well as the fairness of the arrangements between Dalyell well. He was on one of the delegations and we theusb different nations and regions of the United worked together on the West Lothian question. Why Kingdom. Consequently, I am concerned that the do we not approach it the other way? Why not distribute decision to appoint the Smith commission to the powers and resources mentioned in the White consider taxation and care has been taken with such Paper and the Government’s proposals to the English a tight schedule. It seems, however, that it is at least regions? They can all be fitted in. Whether in health or possible that the implementation of the Smith education, adjustments can be made. It may be a commission recommendations will have more time, challenge within our constitutional framework, but since the publication of the Bill to implement these there would not then be a West Lothian problem. matters will not be the date on which conclusions are Certain parts of the UK are being given far greater reached. resources and powers. That will be resented in the The Government have said that the Bill will not English regions. I am from the northern region, where necessarily come into effect before the next general are 9 million people living in an area stretching from election, and that will give a certain amount of time Liverpool to Hull, and on to Newcastle. That is a far for scrutiny—the proper scrutiny that we need to give. greater number than in Scotland, Wales and Northern I take the point that the noble Baroness, Lady Royall, Ireland put together. What would be fair and have the made from the Front Bench opposite: we need to greatest consensus would be a settlement with fairness rethink our constitution. The scrutiny should not be built in. We talk about it, but we do not deliver it. done by individual political parties; we need a Great damage is being done to decentralisation and constitutional convention, which should be a high devolution when the Prime Minister connects the English priority. I do not see any reason why the three main problem, as he would see it, to the Scottish promise, British political parties cannot now set up such a the Scottish vow. That will undermine the consensus. convention. I do not think that it should go on for A system must be found to achieve that fairness. ever, but it should certainly have enough time not only A year or so ago, the Prime Minister promised a to take into account the outcome of the next general vigorous debate. Has the debate in the Cabinet committee election and to reflect on the Smith of Kelvin now simply been what has been announced in Parliament recommendations but to consider subsidiarity. What or outside No. 10 Downing Street? Or are Members of issues can be decided in national or regional Governments Parliament and people in constituencies going to be and Parliaments that do not adversely affect the other given a say in deciding what is going to happen, as parts of the United Kingdom? If we grant huge tax-raising they had in Scotland and Wales? That is the least that powers to Scotland, it may also give the power to can be done for the English regions. If not, there will England, which is considerably wealthier than Scotland, be resentment; there will be a revolt—a call for the to distort the distribution between the member nations same treatment as there was for Scotland. and regions of the country. I recommend that the three main political parties Concentrating on the northern region, 9 million is get together now and agree on how to involve the an awful lot of people. The Government announced general public in such a convention and how to ensure that the Northern Way that I introduced in 2004 was that it is not just a political sword fight, and that becoming the northern powerhouse. They cancelled it information is given by those who are expert in all the when they came in and have now rebranded it. The areas that this needs to involve. We have heard the north is not just about economics, it is also about suggestion from the noble and learned Lord, Lord accountability. These are essential issues but, above Hope of Craighead, that we should look again at the all, it is about consensus. This cannot be achieved two judicial consequences. I totally agree with him in criticising days after a Number 10 statement; it can only be done what was said by Lord Salmond—by Mr Alex Salmond, by consulting the people. We demand that right. We I mean—about appeals to the Supreme Court. If we want a proposal in the White Paper that the Government are to have a national constitution, it should certainly will consider a reform of the English regions in some be subject to review by such a judicial process. way. This must be on the agenda, as it was with the Scottish referendum. We support devolution for Scotland I cannot urge more strongly the need to make the and in Wales, but we are not going to allow it to decision about the constitutional convention now, well advance to our disadvantage and with the contempt of before the election, when people can jockey for position. this Government. It should be made now, and the people participating in this should be drawn from a wide cross-section of the community and nation at large. 5.12 pm Lord Maclennan of Rogart (LD): My Lords, the referendum in Scotland was ultimately satisfactory in 5.18 pm that it gave us time to consider how to reform our Lord Turnbull (CB): My Lords, in my 35 years in constitution in a fairer way. The anxiety that I felt was Whitehall, I spent more time on public spending than in part due to the possibility that Britain would be on anything else, so the Barnett formula was never far broken up and we would cease to have influence on from my thoughts. It was therefore with some alarm international events affecting our future. It seems that I heard that “The Vow” by the three party leaders that less consideration has been given to the part we referred to continuing the Barnett formula. If that play in global government, and to the susceptibility means continuing it as it operates now, that is an of this country to decisions taken against us, than to outcome that I would strongly oppose. 1227 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1228

However, the actual text of the vow may offer some rate support grant, which is a needs-based thing, which reassurance and a hint of a way forward. The front turned out to be a statistical nightmare. I no longer page of the Daily Record of 16 September says: think that this needs basis is necessarily the right “And because of the continuation of the Barnett allocation for answer when the freedom for Scotland to raise taxes is resources, and the powers of the Scottish Parliament to raise being expanded. Instead, we could move to a much revenue, we can state categorically that the final say on how much simpler system under which all nations get a block is spent on the NHS will be a matter for the Scottish Parliament”. grant of the same per capita amount and the devolved Thus, if Scotland has a significant control over its Assemblies are given the freedom to top that up, or revenue, it will ultimately control what the level of not, as they please. In the process, as the noble Lord, spending is on any devolved service. That condition Lord Empey, mentioned, they would assume a proper can be satisfied by a wide range of Barnett formulae. accountability. It does not commit us to precise figures or method of The other change is that the population ratios— calculation. Note also a reference earlier in the vow to, Lord Forsyth of Drumlean: I am grateful to the “sharing our resources equitably across all four nations”. noble Lord, and I agree with everything that he has There is no way that the Barnett formula, as currently said. Is not the problem with his recommendation that operated, can be regarded as “sharing our resources there would be a huge gap in the Scottish budget, equitably”. Its main flaws are, first, that it adjusts the which would mean that Scotland would end up as the population proportion with a long lag. If, as is the case highest taxed part of the United Kingdom and worse in Scotland, the growth of population is slower than in off in terms of public services? the rest of the United Kingdom, Scotland is always over-rewarded. Secondly, this flaw is compounded by Lord Turnbull: Not necessarily. Scotland would have the fact that, when eventually there is an adjustment to to bring its spending into line with England and it the population ratio, it applies only to the increment would be getting the same grant from the centre as of spending in England at the next spending review; England. My recommendation corrects a favourable no attempt is made to correct past overpayment. anomaly; it is not impoverishing Scotland compared The best analogy I can produce is from income tax. with England. Someone sends in a tax return and the inspector finds that the coding has been too generous. But instead of Lord Purvis of Tweed (LD): I am grateful to the recouping the error in the next year, the inspector noble Lord, and I do not intend to take up too much applies a new, less favourable coding, but only to the of his time. When he refers to England, is he including change in income from this year to the next. In this a calculation for London, and is he also including way, all the previous errors, which in the case of what is currently statistically considered as non-identifiable Scotland are all in the same favourable direction, are expenditure for defence and how that is distributed allowed to accumulate. They have now reached grotesque across the different nations? proportions. Scottish public spending is now £1,600 per head Lord Turnbull: I was referring to identifiable greater than in England and £500 per head greater expenditure, not defence expenditure. The latter, of than in Wales. These are huge sums in relation to course, runs at a very high level in Scotland, with our income per head, of the order of £20,000 a year. This major bases there. I have not addressed the issue that disparity funds policies in Scotland, such as care for the noble Lord, Lord Prescott, raised, which is how the elderly, university fees and prescription charges, you deal with separate regions within England. That is which are simply unaffordable elsewhere in the UK. a further thing that we have to address. To put it another way, a Scottish family of four The other change is that the population ratios must receives the same social security benefits as an English be kept much more up to date than they have been at family, but on top receives an extra £6,000 per year in present. My plea, therefore, is that we start a new what we used to call the social wage. relationship which gives proper weight to the principle What is the explanation for this? The answer, in a in the vow of “sharing our resources equitably” across word, is appeasement. Over 30 years, neither Conservative the whole of the United Kingdom. nor Labour Governments wanted to confront voters in Scotland. When the House last considered this in 5.25 pm the committee chaired by the noble Lord, Lord Richard, Lord Selkirk of Douglas (Con): My Lords, I enjoyed in 2009, it was suggested that the way forward was to the noble Lord’s lucid speech and I have no doubt that relate the transfers to needs. But, as Mr Salmond—not it will be noted by the commission of the noble Lord, Lord Salmond—frequently boasted, Scotland is a Lord Smith of Kelvin. First, I should mention that I prosperous nation. Scottish Government figures claim had a past interest as a Member of the Scottish that Scotland has a GDP per head 11% higher than Parliament. I remember the night of that election very that of the United Kingdom as a whole. Wales, on the well because those counting the votes said that they other hand, has a GDP per head of about 25% lower had had enough at 3.30 in the morning. As a result, than the UK average. those of us in the Lothian region and Edinburgh had Had I served on that committee in 2009, I might to await our fate being determined for a great well have signed up to the recommendation to move to many more hours. I was one of the last three in a needs basis. In my time at the Treasury in 1993, we Scotland to be elected. The other two were my noble investigated that, although it came to nothing. However, friend Lord Steel of Aikwood and Britain’s first Green I draw noble Lords’ attention to the analogy of the parliamentarian, Mr Robin Harper. 1229 Scotland: Devolution[LORDS] Scotland: Devolution 1230

[LORD SELKIRK OF DOUGLAS] should not be conditional on any other plans for the I should also mention a second interest. I served as rest of the UK. In view of Mr Salmond’s determined a member of the Government’s Calman commission, attempt to cast doubts on the execution of the promises which recommended additional powers for the Scottish made by the three party leaders, I would be very Parliament. The resulting Scotland Act 2012 included grateful if the Minister would confirm once more, in the power to set a Scottish rate of income tax from the clearest possible terms, that the pledges made to April 2016, as well as the powers to introduce taxes on the Scots people will be kept and that there will be land transactions and on waste disposal from landfill, adherence to the agreed timetable. It is my strong replacing the existing UK-wide taxes of stamp duty, conviction that those serving on the Smith commission land tax and landfill tax from April 2015. are persons of sincerity and ability. I noted that the With that background in mind, I rise to highlight noble Lord, Lord Steel of Aikwood, described them one particular issue—the supreme importance of as persons of “good common sense”. the guaranteed timetable set out for transferring To misquote the late John Mackintosh, it should further powers to the Scottish Parliament. That was not be beyond the wit of humankind to produce a endorsed by the three party leaders as part of the package on measures for further devolution in line vow, published on the front page of the Daily Record. with the referendum results. I would be very grateful if The details of the timetable for action had already the Minister, who has also served on the Calman been put forward by Mr Gordon Brown in his extremely commission, will make it clear, beyond doubt, that powerful intervention in the referendum campaign. promises made will be kept and delivered on time. However, no sooner had the people of Scotland expressed their desire to remain within the United Kingdom clearly and decisively than the leader of 5.31 pm the SNP, Mr Alex Salmond, began to construct a Lord Greaves (LD): My Lords, I am sure the whole narrative of betrayal. He accused the Prime Minister House regrets that the noble Lord, Lord Barnett, of backtracking on the pledges made, and he was cannot be here today to reply to all the comments at it again on television last week on “Newsnight”, about his formula. We all hope he is keeping well. I claiming: remind the House of my current interests in English “Yes of course he is trying to renege on the promises he has local government. I wish to associate myself fully with given. He is a Tory Prime Minister. That is what they do”. the remarks of my noble friend Lord Tyler. I found These unfounded allegations go beyond even wishful myself cheering on the noble Lord, Lord Prescott, for thinking. They are pure fantasy because not one of his advocacy for devolution in the north of England. the three leaders has actually reneged on anything. I To the surprise of many, certainly in this part of the hold in my hands the Prime Minister’s speech on kingdom, the Scottish referendum showed the intense 19 September. These are his words: feelings that people had about the dominance—I will “To those in Scotland sceptical of the constitutional promises try to use not very emotional words—of London and made, let me say this. We have delivered on devolution under this south-east England in the economy of this country, in government, and we will do so again in the next Parliament. investment, the financial sector, political power, The 3 pro-union parties have made commitments, clear government, media and culture. Watching all this on commitments, on further powers for the Scottish Parliament. We television, it came across to me that the degree of will ensure that they are honoured in full”. dominance is even greater if you just take England, A Command Paper has been published on time and, because Scotland already has a substantial amount of although the timetable is tight, I fully expect that the political and financial power based in Edinburgh. This heads of agreement to be drawn up by the government dominance is clearly linked to the distribution of commission of the noble Lord, Lord Smith of Kelvin, wealth, incomes and influence; it is what people used will be made public by St Andrew’s Day, as promised. to call the class system. Nowadays we are supposed to It has suited the First Minister of the Scottish Government talk about social inequalities and not use the word to claim that the Scottish process could be knocked off class. However, it is not just social inequalities; the course as a result of the Government’s plan to come linked and closely related geographical inequalities are up with proposals for constitutional change in other part and parcel of it. People are beginning to understand parts of the United Kingdom. this much better now. However, this attempt at obfuscation flies in the In the later stages of the referendum, the Deputy face of the facts. Mr William Hague, the leader of the Prime Minister led calls for devolution, decentralisation, House of Commons, who is chairing the committee even a degree of federalism, in England as well as in looking at possible constitutional change in the other other parts of the kingdom. To our surprise and House, has stressed on television that every commitment horror, at the same time, we suddenly had calls at made with regard to Scotland, 7 am. I agree entirely with my noble friend Lord Steel about the nonsense of making announcements at this “has so far been kept and will be”. time but it is all to do with 24-hour rolling news. Top Even more importantly, he has said that the two politicians nowadays think they have to dominate the matters are not tied in the sense that one is dependent day’s news agenda and hope to get through to the next on the other. In addition, all five party leaders who day when something else will have taken over as the met last week around the table at the commission latest media fad. However, we had the attempt to chaired by the noble Lord, Lord Smith of Kelvin, resolve the West Lothian question by the introduction tried to agree on a way forward for Scotland. They of English votes for English laws or, to use its appropriate made it clear that enhanced devolution for Holyrood acronym, EVEL. 1231 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1232

Therefore, we are presented with a choice: that is, before we can stand up and say, “Home rule for the devolution to England and EVEL, however it may be north of England”, which is what I should like to carried out, or devolution within England to the regions— campaign on. the towns, cities and localities of England. To pick up a point made by my noble friend Lord Thomas of 5.38 pm Gresford, when the Prime Minister and similar people Lord Lennie (Lab) (Maiden Speech): My Lords, I talk about England, it is not entirely clear if they are speak for the first time in your Lordships’ House and talking about England or England and Wales. In do so with a degree of humility, nervousness and some terms of legislation, it is nonsense just to talk about trepidation. My particular fear is that this piece of England. Perhaps, instead of EVEL, we should talk prompt technology will fail part the way through what about “EWVEWL” or something like that. I have to say. If it does, I have no doubt that someone You only have to look at a typical Bill, especially a will rush from somewhere to my aid, which has been longer one, that comes to your Lordships’ House to my experience thus far in this House at every turn, or see that towards the end there is a clause entitled every wrong turn, that I have taken so far. I pay tribute “Extent”. Most noble Lords probably do not notice it. to all the staff, officers and Members of this House on It states which clauses will apply to the different areas all sides who have been generous and kind, and have when the Bill passes into legislation. It is always welcomed me here. I also thank my two supporters, extraordinarily complicated. When we were in opposition my noble friend Lady Armstrong and my noble and and I was responsible for overseeing the Marine and learned friend Lord Falconer who is unable to be here Coastal Access Bill from the Liberal Democrat Benches, today—I will come to that in a minute—for doing me I had the help of my noble and learned friend Lord the great honour of introducing me to the House on Wallace of Tankerness to deal with the Scottish clauses. Monday. Both have been my friends and political That was all built into the Bill and extremely complex. allies for many years and I hope will be for many more A lot of a typical Bill applies to England and Wales. years to come. Sometimes it applies to the Welsh Office directly and With regard to the noble and learned Lord, Lord sometimes it applies to permissive powers to the Welsh Falconer, I have an important leak to reveal to the Assembly and Welsh Ministers. Some of it applies to House. A confidential source has revealed to me that England, Scotland and Wales; to England, Northern he has been approached by a leading publisher to Ireland and Wales; or to the whole of the UK. It is write a book. The working title is “The Ten Apples always complicated. If there is a serious attempt to and Ten Cokes a Day Diet”. deal with English votes for English laws, the whole way in which legislation is dealt will have to be reorganised Lord Foulkes of Cumnock (Lab): I could do with substantially. I suspect that often we could end up that. with three or four Bills instead of one. When we were writing the constitution for the new Lord Lennie: Noble Lords may have seen some party on the merger of the Liberals and the Social pre-publicity about this in the Sunday Times this week. Democrats, my noble friend Lord Steel once accused It was not just a puff piece—it was a strategically me of being a north of England nationalist. I am not a placed article. The plan is to publish this as a pre-Christmas nationalist; I am a north of England home ruler. I stocking filler. The problem with the plan is, of course, want as much local decision-making in the north of that the noble and learned Lord, Lord Falconer, subject England as we can get. The problem is that throughout to his successful diet, can no longer fill a stocking, so England, including the north of England, there is the plans are somewhat in disarray as far as publication absolutely no consensus about the direction we want is concerned. to go. My noble friend Lord Steel reminded us that it I start my comments about devolution. I am somewhat took nearly 10 years for the Scottish convention to get unusual in this House in that I have experience of an to the point where the Scottish Parliament was set up. English region’s rejecting devolution of power. A decade At the beginning, the parties taking part all had a ago, as my noble friend Lord Prescott has said, the general consensus of the general direction in which north-east chose by a large margin not to accept my they wanted to go; namely, home rule of some sort for party’s kind offer of a regional assembly. At that time Scotland. I was the Labour Party director in the north of England. There is no consensus in the north of England. We It is often said that we are shaped by our experiences. talk about city regions, which are a blind alley in many Having to explain the north-east rejection to my noble places because huge areas of the north of England are friend Lord Prescott certainly helped shape me. not in city regions. Some people talk about local Despite that defeat, I believed then, and I believe authorities having more powers, which is a good thing now, there is an appetite for devolution of government in the short term, and some talk about regional bodies in order that we improve lives, or seek to improve lives, for the north-west, the north-east or for Yorkshire. I and increase opportunities across England. For devolution would like to see one for the whole of the north of to succeed, however, we must understand the reasons England. Bodies such as One North, which was set up for its past failure in terms of what happened in the by some of the big cities to look at the transport links, north-east. There was a disconnect between politics lead us in that direction. However, there is no consensus. and people. That fundamentally explained the rejection Before we can start talking about what we want, we of the regional assembly. The opponents simply asked must have debate and discussion in the north of England voters whether they wanted more politicians at more and, I suspect, in other regions of England to get some cost, meddling more in their lives. The answer was a consensus of where we are going and what we want resounding no, thank you very much. 1233 Scotland: Devolution[LORDS] Scotland: Devolution 1234

[LORD LENNIE] intimate knowledge of the north-east, and his great I suspect that the climate for politics is less favourable experience both of what makes a political party tick today than it was then. I may be wrong, but that is my and of the trade union movement. I already sense a suspicion. For devolution to succeed, the distance and special sense of solidarity with him: he is a devoted disconnect between politicians and voters has to be supporter of Newcastle United, with the emotional narrowed, not just here at Westminster, but in councils rollercoaster that that brings—I see the noble Lord, too. After all, an out-of-touch political elite is equally Lord Beecham, nodding madly. I am a West Ham boy; offputting, whether clad in ermine or mayoral robes. I know how he feels. Devolution must not be something that politicians I declare my membership of the All-Party Group want to do to voters, but a change delivered with, by on Reform, Decentralisation and Devolution. and for the people. Proposals bringing this devolution Relief that we are intact as a United Kingdom is to English regions and cities must be judged not by still surging through every one of my capillaries, nearly how they solve the problems for political parties but six weeks after we knew the result of the referendum by how they will make things better for citizens in on Scottish independence. However, it is a relief suffused every region of the country. There needs to be a with anxiety, for the referendum campaign showed convincing argument that devolution means government just how brittle the union had become and how brittle done at lower cost, with clear, tangible benefits to the it remains. Now not only do we have great repair work electorate at large. That is a huge challenge. to do in terms of the emotional geography of the How do we go about this? First, devolution in United Kingdom, but we find ourselves on a vast England needs to be considered purely on its own construction site for the remaking of multiple aspects merits. Otherwise, voters will see English devolution of our constitution beyond the sculpting of a new proposals as the unforeseen or unintended consequence constitutional settlement for Scotland. It is largely of the Scottish referendum. They will see politicians without plan, substantial forethought or consensus. trying to apply a fix to a problem they themselves There is a critical, pivotal sentence in chapter 3 of created. the Government’s Command Paper of earlier this Further, we need to be clear that English devolution month, The Parties’ Published Proposals on Further and English votes for English laws—EVEL—are not Devolution for Scotland. It is this: the same issue. Today we have a hugely centralised “Proposals to strengthen the Scottish Parliament provide an English government; changing who votes on which opportunity to reach a strong and lasting constitutional settlement legislation may be a good thing or a bad thing in across the UK”. reflecting an English will, but it devolves little power. Perhaps I may offer just a few thoughts on what it It cuts no costs. It makes the delivery of government takes to frame “a strong and lasting constitutional policy no more streamlined than before. If we want settlement”. devolution, we surely have to look beyond the question of who votes in Westminster. That means that we must The coming extra surge of powers for the Scottish devolve the process of devolution. It is easy to say that Parliament will require constitutional legislation of a you are in favour of devolution, but if your deeds fundamental and first-order kind, as will any serious undermine your words, you will fail to impress voters moves towards greater devolution and decentralisation who you want to support your proposals. within the wider United Kingdom. Can we reach for the Gladstonian solution of “home rule all round”, We must reach beyond politics and ensure that with the predominance that that would give to an whatever we put before the English voters commands English Parliament serving more than 80% of our public support from a broad consensus of civic society, people? Can we somehow carve a surrogate English who can then seek to reassure those who are suspicious Parliament out of the existing House of Commons of politics—and I believe that they are currently the along the lines suggested in the McKay commission many, not the few. report of 2013? Should we follow the developing economic Finally, I would like to say that I chose the title of geography of several parts of the kingdom and foster Longsands Tynemouth. It was featured in a photograph the growth of city statelets? The possibilities are multiple in the Times last Friday; your Lordships may have and every one of them stretching. seen it. It is where I live; it is worth a visit; and if you First-order constitutional legislation, in my view, go there, go to the wonderful beach bar, Crusoe’s. It is needs to meet certain tests. It requires durability and where I spend much of my family time. predictability in its operation once it has received My home region, the north-east, is engaged and Royal Assent. For that to be achieved, it needs to live energetic and sceptical of easy promises. Those are and breathe in a stable yet sensitive relationship with qualities that I shall endeavour to replicate to the best the other adjacent moving parts of the constitution. of my ability. It is an honour beyond measure to be There is a prior requirement if these tests are to be one of those of all parties and none who will speak up met: a high level of parliamentary and, by extension, for my region in your Lordships’ House. public consensus. To achieve this takes thought, consultation, care and time. 5.45 pm I appreciate the need to move with some deliberate Lord Hennessy of Nympsfield (CB): My Lords, it is speed towards fulfilling the promises made to the an honour to be the first to congratulate the noble people of Scotland by the three party leaders on Lord, Lord Lennie, on his fine and witty maiden the front page of the Daily Record two days before the speech. There will be many more occasions when your referendum poll. Great responsibilities rest on the Lordships’ House will relish his wit and wisdom, his shoulders of the noble Lord, Lord Smith of Kelvin, 1235 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1236 and the five political parties engaged on the task of I declare an interest as I live in the boondocks of converting those proposals into workable practice. Scotland. To the real happiness of the government However, I fear the consequences of excessive rush, Whips who have tried to find me, I live about one not just for Scotland but for those other parts of the station before Vladivostok, but I manage I get here by kingdom that will feel the percussive effects of the 12 hours on the train each week. I spent the whole of vote to stay together. Every fibre of me sympathises our Summer Recess in rural Scotland. Day after day, with the party leaders’ desire to save the kingdom the electronic media, both visual and aural, told us in the last days of the campaign, but placing a series that this was a major decision. It was, but feelings ran of staccato pledges on the front page of a newspaper very high and I certainly listened with great care is not the most desirable way of refashioning a and appreciation to the remarks made by the noble constitutional settlement that had been 300 years in Baroness, Lady Liddell. In my little town of Kirrie— the making. known to the rest of the world as Kirriemuir—never We are in the rain shadow of a general election. The in my 74 years have I seen not one or two, but four metabolic rate of the party competition is rising and policemen at the town hall where the vote was taking will continue to rise. I regret that very soon after the place. It may have been an 80% turnout but, as the referendum votes were counted, as the English question noble Baroness pointed out, passion and feelings of shifted from a rumble to a roar, political partisanship varying degrees were whipped up to, I might say, inserted itself over the matter of English votes for “Bash the English”. That was behind it all. Certainly, I English laws, with the Conservative leadership making felt that in my neck of the woods in Scotland and it it plain they would make EVEL an election issue if really rather worried me. Labour did not go along with the idea. That Friday Happily, things turned out very well on 19 September was when the party leaderships should have risen to and since. What happened and what have we had since the level of events and met as fellow Privy Counsellors then? I am pleased that the noble Lords, Lord Foulkes to agree that, alongside the Scottish timetable, a broadly and Lord McAvoy, are here, because the three of us based constitutional convention or royal commission frequently hear, when the men in dark blue have not should be created to range wide and deep over the done terribly well, “We were not defeated; it was the constitutional questions facing our country. referee”. That has been the great cry of the yes voters, In the debate on Scotland that we had in your and we are still hearing it today. It has been gradually Lordships’ House last January, the noble Lord, Lord calming down, but it will be an ongoing battle, probably Lang of Monkton, who I am delighted to see in his for the rest of my career in your Lordships’ House or place, said that we needed to learn once more how to elsewhere. do things together as a union. Here was a shining I was in the boondocks of Scotland. I was very opportunity to do just that. We need a set of constitutional lucky; fortunately, in Kirrie, they regard me as something arrangements that will allow the constituent nations of an intellectual—they are quite wrong—because I and regions of our United Kingdom to live in a obtain and pay for a copy of the Financial Times. One condition of “mutual flourishing”—to borrow a phrase of the most hard-hitting articles that I read was by the used by the most reverend Primate the Archbishop of noble Lord, Lord Robertson. I warned him that I Canterbury in a different context. For this we need a would mention him although I knew that he would broader-gauge approach: to think high, to go wide, to not be not here today. He wrote the most devastating fashion a settlement that will endure. article for the centre pages of the Financial Times. He Has the moment passed for this? I think not. I do was speaking to a taxi driver in Glasgow who said, “I not know whether the will can be generated within our want to be part of the United Kingdom, but I am political leaderships to stand back, rise to the level of going to vote yes to give those so-and-sos south of the events, meet as Privy Counsellors and make a joint border something to think about. Anyhow, all the proposal for a constitutional convention or a royal negotiations will be done by the likes of you”—that is, commission, but there really is a glittering prize of a the noble Lord, Lord Robertson, Mr Darling, and the better governed United Kingdom to be grasped up rest. As the noble Lord, Lord Robertson, said, that is there on the higher ground. sheer brass neck. I fear that that was what was appearing in the electronic media but, happily, not in the printed media. 5.52 pm Two days later, I read another article, again in the Lord Lyell (Con): My Lords, I thank my noble Financial Times, which I have no hesitation in praising friend the Leader for being here for this debate. I have because it is read throughout the world. My friends in attended many debates on Scotland and we have not America and New Zealand know precisely what is had all the assistance and help that we shall get from going on, even without the BBC World Service. Martin my noble and learned friend Lord Wallace and have Wolf wrote a searing article for the centre page, saying, already had from my noble friend the Leader. This is “You had better take care in Scotland; I have a shock one of the most important debates that I have attended for the Scots if they were to vote yes”. He looked at in 50 years—I shall say that again: 50 years—in your the economic and political aspects throughout Europe Lordships’ House. Fifty years ago I was an apprentice if there were to be a yes vote. accountant in that great city of Glasgow and I never Happily, it did not turn out that way. Professor imagined that I would have the chance to discuss what John Kay, who I understand is a leading adviser to the we are discussing today—the onward march of devolution Government of Scotland, wrote that, “nationalist and political developments in Scotland—but we have sentiment” will not, it and here I am. “be assuaged by the transfer of responsibility for housing benefit”. 1237 Scotland: Devolution[LORDS] Scotland: Devolution 1238

[LORD LYELL] what happens between people in positions of responsibility There is an awful lot more to be done. He concludes: and in established institutions in London and the “Effective political leadership and a strong economy are the metropolitan centre. only way to define the resentment is expressed in current public opinion”. It is a matter of real regret for me that the fantastic atmosphere, very similar to that described by my I started, and will finish very quickly, to the happiness noble friend Lady Royall, that existed in Glasgow and of the Whips, by saying that I commenced my the rest of Scotland in July during the Commonwealth apprenticeship in Glasgow. I am very lucky to be Games dissipated so quickly and turned into such followed by the noble Lord, Lord McConnell. In that bitterness and bile. It is also a matter of regret for me great city, we have enormous industry. There is the that it took Dan Snow, Bob Geldof and others to Weir Group, which my noble colleague, the noble positively express what was good about the United Lord, Lord Smith of Kelvin, chaired and ran for many Kingdom and worth keeping, in a way that most of years. I think that he has one year more than me as a the politicians seemed unable to do. It is a matter of qualified accountant. You could not find anyone in deep regret for me that so many of what I would Britain or in the United Kingdom who would do a describe as UK politicians seem unable to see and better job than he will for Scotland, its industry and its praise, even from time to time, the good that has economy. happened in the devolved Assemblies and Parliaments Five minutes ago, we had a huge group of young since they were created. That resonates with the Royal Navy ratings up in the Gallery. Barr and Stroud people because it adds to that perception of being out is a world leader in naval equipment; once again, it is of touch and at a distance. It is also a matter of regret in Glasgow. We also have British Aerospace, or BAE, for me that, in an unnecessary panic, commitments and the shipyards. My noble friend Lord Stephen were made about additional powers for the Scottish came with me to Babcock International in Renfrew— Parliament that will be a challenge to keep. However, world leaders in energy, microwelding and nuclear we are where we are, and keep those commitments we security. Those four firms are world leaders and they must. are in Scotland. They will provide the foundations and the seed corn for any development or devolution that I believe very strongly that the Smith commission will be discussed in my lifetime or further on. must drive its work based on the following principles: the principle of subsidiarity, by which decisions should I am very grateful to your Lordships for giving me be made at the most local level possible; the principle five minutes. of mutual respect between the two Parliaments and between the two Governments; and the principle of 5.59 pm fiscal responsibility, but also fiscal opportunity for the Lord McConnell of Glenscorrodale (Lab): My Lords, Scottish Parliament so that it can make decisions that the result of the Scottish referendum was clear enough might spark off entrepreneurial activity and other to resolve the issue of Scotland’s place within the developments in Scotland, in addition to having United Kingdom for at least a generation, but it was responsibility for the expenditure that it has made so also close enough to make all of us in positions of far and will make in the future. The Smith commission responsibility, elected or otherwise, sit up and listen to should absolutely commit itself to doing nothing that the message that it sent. Probably the most used would damage the UK single market. It should also phrase in Scotland over recent months has, I suspect, have firmly in its thoughts the need to redistribute also been used across many of the towns of the north across the UK from rich areas to those that have more of England and elsewhere in the UK: “They just don’t needs. get it”. That is a telling reminder for us of the disconnect I believe strongly that the unionist parties will need that exists today between the Government, Parliament to move their current policy positions. A settlement and the people that they are there to serve. In recent based on any of the current submissions will not be years there have been bonuses paid that appear to have sufficient to create stability and allow the debate in been completely unjustifiable, scandals covered up at Scotland to move on to using powers rather than more the British Broadcasting Corporation, the ongoing powers. The final settlement will require somewhere scandal over many years of expenses for Members of between half and two-thirds of expenditure being the Parliament, and the “jobs for the boys” culture that responsibility of the Scottish Parliament through tax- appears to exist in and around British institutions. The varying or tax-setting powers. I believe that those feeling that they—the metropolitan elite in one form powers should be not just for income tax; they should or another—are in it for themselves ran deep in Scotland be partly income-related, partly business-related and in August and September. Those voting yes were not partly sales-related. There must be the power to vary all nationalists, but they did all want to kick the rates of tax up and down but not to assign revenues. If establishment and the established order. these additional powers are to be devolved to Holyrood, Holyrood itself must reform to ensure that government Lord Foulkes of Cumnock: Does my noble friend and decisions there have more accountability, and not agree that there have been some problems in more checks and balances, than they appear to have at Holyrood just as much as in Westminster? the moment. With regard to the situation in the UK, coming out Lord McConnell of Glenscorrodale: Yes,butIdo of the referendum it is vital that the UK looks at votes not think that the issue there in any way reflects the for 16 and 17 year-olds. The issue of English consent—not perception in the country, not just in Scotland, of necessarily English votes—for English laws will have 1239 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1240 to be addressed in due course. Reform of this House, If dirty tricks had been employed in the campaign, based on more equal representation for the regions of it was those of the nationalists that had been the most this country, will be essential. Individual matters such effective. Large numbers of small businesses in Scotland as the recall of MPs and the future of the territorial were scared to declare their voting intentions in advance Secretaries of State will need to be addressed. I would for fear of reprisals if the nationalists won. In certain have preferred it if these issues had been addressed in parts of Scotland, life had been made very uncomfortable a constitutional convention, and I hope that that for those Scots with English sympathies or connections. option might still be on the table. By comparison, the Better Together campaign seemed Finally, I really wish that the Prime Minister, instead mild, unthreatening and relatively ineffective. It came of standing on the steps of No. 10 the day after the alive only at the very last minute, when people like referendum, had come to Scotland and said thanks. It Gordon Brown and Jim Murphy started to put the would have been the right thing to do: to come to case for the union with some passion. David Cameron Scotland and say to people, “We are grateful that you may have helped, but I am not sure about that. voted the right way and we will be back. We mean it. In any case, Alex Salmond and Nicola Sturgeon We meant it when we said that we would change and may now have accepted the verdict of the referendum, improve this relationship, and in future our Ministers, but they certainly do not believe that this is the end of both government and opposition, will come to Scotland the story. They now regard the referendum as no more and other parts of the kingdom not just when there is than a further step towards total independence at a a problem and a vote is taking place. We will come all later date. After all, they got 45% of the Scottish vote year round and will engage with you, and we will and that is why the threat of Scotland breaking away govern for the whole United Kingdom”. If the from the union is far from over. You English must Government would do that, the whole kingdom would remember that the nationalists govern Scotland and be a happier place. that, unless the Labour Party can get its act together fairly quickly, they are likely to go on governing Scotland for the foreseeable future. 6.06 pm A lot now depends on the deliberations and conclusions The Earl of Glasgow (LD): My Lords, I very much of the Smith commission but, here again, the nationalists agree with the last point made by the noble Lord, hold all the cards. If the commission recommends that Lord McConnell, but I suspect that some of your significant new powers should be devolved to the Lordships may never fully appreciate how close we Scottish Parliament, these will be accepted by nationalists were to the break-up of the United Kingdom last as useful stepping stones to full independence. If they month. Those of us Scots who believe passionately in are denied the sort of new powers that they seek, they the union were having sleepless nights in the weeks will cry out that Westminster has broken its promises running up to the day of the referendum. I really to the Scottish people and that the referendum was believed that the nationalists were going to win. Alex lost only through Westminster lies and subterfuge. Salmond had masterminded a brilliant campaign. He They will then feel justified in demanding a new had persuaded a large number of Scots that it was referendum or something like it. It is heads they win, unpatriotic to vote for anything other than independence. tails we lose. The nationalists are not going to give up, His followers had whipped up my normally canny as my noble friend Lord Lyell has already pointed out. countrymen into a frenzy of excitement, promising us The noble Lord, Lord Smith, and his commission a new, fairer, more caring and more prosperous therefore have a difficult and delicate task to perform. Scotland—and never mind the collateral damage and mess They are going to have to keep reminding the nationalists left behind; that was just Westminster scaremongering. that they lost a referendum fought largely on nationalist He even engineered the question to be put to the terms and that Scotland will remain part of the United voters. Those of us who were desperate to keep the Kingdom for the foreseeable future, whether they like United Kingdom were obliged to vote no, and those it or not. That issue is no longer negotiable. who wanted to see it broken up were asked to vote yes. Against the wishes of our Government I have one On the day of the vote, I really believed that the plea, directed mostly to those English politicians who nationalists were going to win. More importantly, understandably seek to deny Scots MPs the right to Alex Salmond and Nicola Sturgeon did, too. When vote on purely English matters in Westminster, but they lost, they did not believe it, nor did their supporters. who also believe as passionately in the preservation of Clearly, it could have been explained only by some sort the union as some of we Scots do. It is: please let the of Westminster stitch-up. At the last moment, West Lothian question remain unanswered, however Mr Cameron had made an agreement with the owners unfair you may think it is. This Westminster Parliament of all the big businesses in Scotland that they would is a British Parliament representing England, Scotland, announce that their companies would leave Scotland Wales and Northern Island. It is not an English if there were a yes vote, and this had frightened a large Parliament, as the Scottish Nationalists wish their number of Scots into voting no. Furthermore, the supporters to regard it. Nothing could provide them three unionist parties in Westminster had got together with better ammunition than putting Scottish MPs in a state of panic and bribed the Scots into voting no into the position of being second-class Members in a with unspecified promises of further devolution. Thus British Parliament. Such a move would greatly strengthen the no vote had been secured only by a number of their case for independence. Can those of you seeking last-minute dirty tricks. These arguments are still being a purely English Parliament please shut up? Talk of expressed by angry nationalists in newspapers all over English independence is food and drink to the ears of Scotland. Scottish nationalists. It plays it straight into their hands. 1241 Scotland: Devolution[LORDS] Scotland: Devolution 1242

[THE EARL OF GLASGOW] fees or whatever, then we have to be accountable to Alex Salmond, Nicola Sturgeon and an army of our electorate in our constituencies. We have to go Scottish nationalists are not going to go away. They back there at the weekend, look them in the eye and remain a continual threat to the union and we must face the consequences of our actions but that has not give them no opportunity to open up this whole been the case for Scottish Members of Parliament independence issue again. Personally, I am dreading voting on English matters for the last 14 years. the forthcoming referendum on Europe. When he was Secretary of State for Health in England, the noble Lord, Lord Reid, pushed through 6.12 pm the NHS foundation trusts with the help of Scottish Lord Blencathra (Con): My Lords, I wish to concentrate MPs. Health is a devolved matter in Scotland; so is on the English question—or the West Lothian question, education. I think that the policy of the noble as it was originally called when the great parliamentarian Lord, Lord Reid, on foundation trusts was jolly good Tam Dalyell first asked it in 1977. I am afraid that the but it was pushed through by a Scottish Member of question will have to be answered sooner or later. Parliament with Scottish MPs’ support, when the Scottish First, however, I support the proposals in the White Government and their MSPs were making it abundantly Paper by the parties on further devolution but I believe clear that they would never adopt that policy in a that they need to go further. The Conservative Party million years in Scotland. That cannot be right. has additional devolution proposals. I think those are The list of matters devolved to the Scottish Parliament the minimum that we can do and for this reason: if we includes agriculture, forestry and fisheries, education do not go as far as we sensibly and safely can, there and training, environment, health and social services, will be a demand in the next Parliament by the SNP housing, law and order, local government, sport and for another referendum. The noble and learned Lord, the arts, tourism and so on. On all these matters, Lord Hope of Craighead, was right as if the SNP English MPs have no say whatever since only MSPs takes more seats in the general election of 2015 and decide on them. When I was an MP, I did not want a increases its numbers above 69 in the 2016 Scottish say in them but it is wrong for Scottish MPs to vote on Parliament elections, another referendum is more than these matters when they apply to England, since they likely. It is probably inevitable, especially if the SNP have the freedom to do as they like and are not can point out that there are some matters that were accountable to an English electorate. What a wonderful capable of devolution and we failed to devolve them. I life that must be: to have power without accountability, am afraid that this matter will not have been settled for voting through policies applying to England knowing a generation, or a lifetime, as has been suggested and full well that you will not face angry constituents in as we hope. It will come back again and again until the your surgeries at the weekend. That is why, for the last yes vote for independence finally wins. 14 years, English Members of Parliament were second- The Barnett formula has completely outlived its class citizens in the House of Commons Chamber, usefulness and should be scrapped, as the noble Lord, where everyone should be an equal. We already have a Lord Barnett, has repeatedly suggested. Indeed, he two-tier House of Commons and that inequity cannot has called it a “terrible mistake” and a “national continue. embarrassment”. However, the Prime Minister made a There is an answer to Tam Dalyell’s West Lothian promise to retain it and it would be fatal to renege on question. It is to implement English votes for English that promise now. I hope that the formula will decline laws. England does not want piecemeal regional in importance if Scotland raises more of its own devolution. The noble Lord, Lord Prescott, tried regional expenditure. If Scotland is to get the additional powers, devolution in the north-east and it was rejected by which it must get, and continues to get £1,600 per 78% of the electorate. I say to him that it was rejected head of population more than England, then it is vital not because the powers were grossly inadequate but that England is treated fairly, which it is not at the because the majority of people, while feeling detached moment. We must therefore have English votes for from Westminster, trusted it a lot more than they did English laws. politicians in Newcastle—or, in our case in Cumbria, Some will say, as we have just heard, that we would politicians in Manchester and Liverpool—to divvy up then create two classes of MP but we have had that for the money fairly. The McKay commission pointed out 14 years in the Commons. We have had 59 Members of that giving extra powers to local government in England Parliament from Scotland being able to vote on all and its northern cities, which I support as it may be matters, including issues that are English-only and part of a future solution, does not answer the fundamental nothing to do with Scotland. English MPs do not have question of the governance of England itself. that reciprocal right to vote on a host of Scottish Some have suggested that the number of Scottish matters. That has unbalanced Parliament. It is morally MPs should be reduced, as in the Stormont solution, wrong and needs to be changed. The McKay commission on the basis that half the Scottish MPs’ workload is stated quite firmly that: now the responsibility of MSPs. However even if there “The constitutional principle that should be adopted for England were only 40, 30, 20 or 10 Members in the United (and England-and-Wales) is that decisions at the United Kingdom level with a separate and distinct effect for England (or for Kingdom Parliament from Scotland, they would still England-and-Wales) should normally be taken only with the be voting on English matters. That fundamental injustice consent of a majority of MPs … in England (or England-and-Wales)”, would need to be resolved. as the case may be. Finally, having English votes for English laws is not I consider it one of our fundamental democratic too complicated to implement. The clerks in the and parliamentary principles that if, as a Member of Commons, as in this place, are experts at detecting Parliament, we vote for higher taxation, student tuition hybrid Bills or amendments. They can easily identify a 1243 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1244

Bill which is UK-wide or for England only. It is not will strain the devolution settlement to breaking point—as rocket science, as the McKay commission pointed out. will the 100% tax devolution to the Scottish Parliament. There is overwhelming demand in England for such a This is a slow way to independence. Why? If there is change. I found that my English constituents in that 100% tax devolution, Scottish MPs will not vote on magnificent border area were very tolerant and patient the Finance Bill or indeed debate it as we do here. people, despite 600 years of border reiving—or probably There will be no Scottish Chancellor and, given that because of it. They were very happy for Scotland to the Prime Minister is the First Lord of the Treasury, get additional powers but their view now is that 4 million there will be no Prime Minister from Scotland. electors in Scotland have had their say and it is time for the 40 million people in England to get fair treatment. There is another way of getting independence. I think that I am one of only 10 noble Lords participating Members of Parliament and parliamentarians here today who has served as an English Member of have to realise that. If Westminster is to maintain its Parliament. I say to your Lordships that we ignore the voice, there has to be no dereliction of duty by the views building up in England at our peril. We should Prime Minister in the future. A dereliction of duty was legislate for English laws and do it urgently, in tandem undertaken with the Edinburgh agreement. There was with any further legislation on devolution for Scotland. a casual treatment of the Edinburgh agreement by the Prime Minister. It was way in the future, so the timing, giving a two-year timescale, was given away—just like 6.20 pm that. Also, the wording of the question was given away. The wording, style and tone of a question are Lord McFall of Alcluith (Lab): My Lords, in the crucial in determining the value and quality of the referendum, no has won the battle, but it has not won answer received. As one who campaigned, I can tell the war of words. Those words were pretty ugly, the House that it is very hard to enthuse people if one divisive and depressing throughout the referendum is proposing a negative. That should have been looked campaign. What we saw was an intolerant streak, at at the very beginning. The constitutional debate demonstrated in the social and political debates; so since 1999 has been all about process; what further much anger, venom and sneering contempt directed powers can be devolved to the Scottish Parliament or by individuals and groups at one another. The social the Welsh Assembly? There has been little focus on the media mirrored this throughout the referendum. effectiveness of the delivery of politics. The concept of To have a decent debate you have to have a good devolution as a process of events needs to be re-examined. tone at the top. That is where the First Minister and his deputy were lacking. They were lacking in the area I have some very close friends who voted yes. I of business. I was engaged with businesses for many challenged them on why they were voting yes. I put it months on this issue and they were afraid to put their to them about the currency union, “Do you agree with heads above the parapet. I was engaged with academia, Jim Sillars about stupidity on stilts?”. “Yes”. I asked and that was a mirror image. The only one who stood about Trident and NATO. “Can you get rid of Trident out against that was Dr Louise Richardson of St Andrews while simultaneously getting in to a nuclear club? Do University. In a personal call with Alex Salmond, she you think that is consistent?”. “No”. “What about EU told him, no, she was going her own way. We also saw admission? Do you think there will be problems about that with the SNP-inspired demonstration against the that? Will there by automatic entry?”. “No. There will BBC for Nick Robinson asking a hard question—the be problems, but we are voting yes”. One highly sort of hard question that he asks politicians in sophisticated friend said to me that he voted yes and Westminster day in and day out. Alex Salmond took hoped that the result would be no. That illustrates the exception to that. disconnection that there was. When I asked them why What has happened is that Westminster has become they were voting yes, they said it was for a fairer, more a toxic term as a result of this debate. Both Alex socially just society. But there was no means to deliver Salmond and, indeed, Nigel Farage in his own way, that. There is a disconnect and we must appreciate have enhanced that toxicity. What does that mean? that here. That means that Westminster is to be very much Arsène Wenger, in the Times this morning, made involved in ensuring that we progress this devolution the point that we are moving from a thinking society debate. We need to ensure that we correct our politics to an emotional one. We are losing our sense of and ask the question: how do we contain and how do perspective on events because of the requirement for we eliminate the disturbances that we have seen? There instant reactions and opinions. As Nobel laureate is something unnerving in the air—witness the social Daniel Kahneman said in his bestselling book, instead and political fragmentation. Westminster needs to reassert of thinking fast, we should start to think slow. We its authority and produce a confident voice in this have thought fast in the past and we have got ourselves debate; one that respects the constituent parts. into deep problems. We need a constitutional convention EVEL has been mentioned. If we go down this line or a royal commission; one which is thought out; one as a primary consideration, we will not achieve that. where there is citizen engagement; one where we have Let us reflect on the situation. The English voice to think out the purpose and the terms of reference. A is alive and well in the mother of Parliaments: constitutional convention or a royal commission is the 650 constituencies with 533 English ones. That voice is way forward. We should do it slowly so that we get alive. England remains the dominant nation. There is wise decisions out of it—wise decisions which can no need, as Vernon Bogdanor, the Prime Minister’s secure a union that is not safe yet and wise decisions Oxford tutor, says, to beat the drum or blow the bugle. which, through reconciliation and good disagreement, If we beat the drum and blow the bugle too much, that can secure the peace. 1245 Scotland: Devolution[LORDS] Scotland: Devolution 1246

6.27 pm to the review of the revenue side of the EU budget that Prime Minister Mario Monti has been asked to undertake, Lord Kerr of Kinlochard (CB): My Lords, I agree and which we have decided we will not contribute to. with almost all the points that the noble Lord, Lord That is a very unfashionable analogy, but I think I McFall, has just made. A great deal of wisdom has have just about got away with it. been on offer in this debate so far, but I am a little uneasy that we are looking back too much, with a little My second point is of course about EVEL. The too much retrospection and recrimination. The noble correct answer to the West Lothian question in today’s Lord, Lord Hennessy, got it right when he said that political circumstances is: “Get over it”. It is a problem the fundamental thing that was wrong with the 7 am that has existed for a very long time and it does not Downing Street statement was that that was a time for need a solution now. A quick off-the-cuff solution of binding up the wounds. It was not a time for inflicting the kind that could emerge from Mr Hague’s commission a new wound and making a link that had never been seems to be just the way to reopen the wounds of the mentioned when the promise was made. Scots that we should now be trying to bind up. The European analogy is perhaps relevant again, so The first thing that we should do in this debate is I might try to get away with it a second time. For three send a message of congratulations to Ms Sturgeon in years the French have argued for a two-tier Parliament Edinburgh, the next First Minister of Scotland and in Strasbourg. With perfect Cartesian logic, they have the first woman to hold that position—clearly a doughty pointed out that, since the British have decided not to fighter and a worthy successor to Alex Salmond. I join monetary union, the so-called fiscal union or the disagree with almost everything that she stands for, banking union, it is pretty odd that the British should but I think that it is extremely important that we have be voting on eurozone laws in all three areas. The a civilised debate. I would like us to send a message to British Government have—completely correctly, in my her. I am very pleased to see the Leader in her place, view—resisted that, pointing to the folly of deliberately and I hope that she will consider advising the Prime widening the Channel and to the importance of retaining Minister to send this message: we in this House believe the single market. So we have hotly opposed what the that our debates would be greatly improved if the French have suggested, and it seems that we have won. voice of the 37%—only 37%, to correct the noble Earl, Lord Arran—who voted in Scotland for independence I had the privilege yesterday of being in Brussels was heard in our debates. It seems to me that it is very with the noble Lord, Lord Boswell, in his capacity as easy for us always to be attacking the Scottish National chairman of the Select Committee, and it is a pleasure Party. The Scottish National Party should be here. I to see him in his place. We discovered that nowhere in have never understood the logic of the position that it the European Parliament is there any eurozone-only is possible for them to take seats in the House of structure. We discovered, although of course we knew Commons but not in the House of Lords. It is in their already, that Mr Juncker, the President of the Commission interests, it is in our interests and a warm invitation whom we decided to insult and oppose, has decided should be extended straightaway to Ms Sturgeon to that all EU laws must reflect the interest of all EU change her party’s position and agree that the party members, and has given the noble Lord, Lord Hill of should be represented here. Oareford, responsibility for the laws of the banking union that we would not join. Now that is magnanimity I want to make two points, risk two unfashionable and statesmanship, and in my view that is what was paradoxes and make one proposal. My first point has lacking the morning after the referendum. been made already—the ATM point, as made by the That was my second paradox; I now come to my noble Lord, Lord Empey. I think that “no representation little proposal. Actually, this proposal has been made without taxation” is a good rule. Any parliament that already.I am a very strong believer in the royal commission is responsible for expenditure but does not have to or the constitutional convention, but I think that there raise the money is always going to be irresponsible is a House of Lords angle to this, rather as the noble about expenditure. I am strongly in favour of the Lord, Lord Steel of Aikwood, was suggesting—some Strathclyde proposal on the devolution of taxing power. sort of solution whereby the devolved Parliaments Paradox one: why is the European Parliament always indirectly elect representatives here. That would be a so determined to increase expenditure more than the very good way of cementing the union for which the member states are prepared to allow? For the same Scots have voted. Promises must be kept, of course, so reason: it has no power to raise revenue. Most other let us press ahead with the commission of the noble Governments believe that the taxing power for the Lord, Lord Smith—I wish him good luck—but one EU, raising the 1% of GDP that is the EU budget, should go very slowly on EVEL and, as the noble would be better than a levy or a Barnett formula, Lord, Lord Maclennan, suggested, one should be which occasionally leads to a review and, if a review thinking now of the correct form of convention or has been postponed and resisted for very long, can royal commission. lead to a very large correction that can provoke tantrums and kerfuffles. The tax would seem to be more logical, 6.35 pm but if one proposes that to the British Government, they draw back their skirts in horror. Yet the logic on Lord Dobbs (Con): My Lords, the last time that I Strasbourg and on Holyrood should be the same. Just had the pleasure of being squeezed between the formidable as we are all to be content to see more taxing power frames of the noble Lords, Lord Kerr of Kinlochard even than in the 2012 Act given to Scotland, so we and Lord Foulkes of Cumnock, was in the debate on should think again about whether the Government are the EU Referendum Bill. That was a bracing experience, right to have decided to make no contribution whatever and I am sure that this one will be just as much fun. 1247 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1248

That wonderful novelist and Scotsman Walter Scott 6.40 pm once wrote that there is no path that leads through the Highlands that has not at some time or other offered a Lord Foulkes of Cumnock: My Lords, I am pleased little danger for an Englishman. He added that the to follow the noble Lord, Lord Dobbs, in spite of what clans may squabble among themselves, but in the end he said. I hope that he will forgive me if I return to the they will always unite against those who wear breeches opening speech by the noble Baroness, the Leader of on their bottoms and have purses in their pouches. the House, for whom I have the greatest of respect. I Those of us who are enthusiastically English—or indeed fear that in parts of her speech she gave away the fact Welsh, or Irish—might be forgiven for feeling that we that Whitehall seems to have learnt nothing from the have escaped that moment of danger and reached our referendum. I do not think that she and Whitehall goal, with a referendum result that has reaffirmed our realise how near to disaster we were. We were at the union. But like so many Members of this House edge of a precipice and we nearly went over it. We only today, I wonder. The moment of greatest danger may avoided it because, thankfully, the silent majority in yet lie ahead. Scotland saw what was at the bottom of the precipice I want to salute Scotland and its people. When I and came back and voted no. Otherwise we would was there campaigning, there was not a single voter have gone over that precipice, with all of the United that I met of any political hue who did not take the Kingdom’s institutions behind us, into total disaster. task in front of them with extraordinary seriousness. We really need to learn from that. This was a vote For Scotland, the referendum was a triumph, the against separation, it was not a vote for the status quo. turnout Herculean—almost Romanian—in proportions, Paradoxically, the losing side are energised by what and the result, thankfully, was decisive. Yet, on that has happened and we, the winners—2 million of us—have long march back home, we picked up a few pebbles in been forced to come back, like King Edward, to think our boots. again. If we do not come up with a sensible, credible and, above all, stable alternative, we will be back to the Financially, things will not be easy. The Barnett precipice sooner rather than later. We must find a formula will live on, even when its own creator says long-term solution. that it should be dragged off to the knackers’ yard. The English will still be expected to pay, and the poor I will look carefully at two aspects. First, on Scotland Welsh will undoubtedly still complain of injustice. and the Smith commission, I agree with my noble Fiscally, with the threat of different income tax regimes friend Lord McConnell. Its decisions I hope will be either side of the border, how will companies and based on principles and not on party horse-trading. individuals resist the temptation to move perhaps only Two key principles are that the powers to be devolved a handful of miles to greener pastures? If there is to be should be devolved for a purpose, that is sensible and different provision on a wide scale, not just in health appropriate to be carried out at the Scottish level, and education but in social services, how will we stop benefiting the Scots but not harming citizens of the families border-hopping in search of the best outcome? United Kingdom; and that we need not what the Perhaps the most difficult challenge of all, though, nationalists call full fiscal economy, but what I call will be political. The West Lothian question has now fiscal responsibility. As others have said, we should become the “West-Minster” question. How do we devise a way for them to be responsible for raising the guarantee fairness to English voters to ensure that money that they spend. That will not be easy. Some they are not treated as second-class citizens? Many have pointed to the difficulties and others have pointed commitments have already been given. All those vows to the way forward. Surely with all the expertise that that were made shortly before the referendum were we have in the Treasury and elsewhere, something can clearly a result of high principle rather than low panic, be worked out. I look forward to the third Scotland but the hounds still snap persistently at our haunches. Act. This is becoming a Shakespearean drama—but I How on the one hand do we satisfy the legitimate must not go down that line or we will end up with expectations of Scotland without, on the other, arousing “Macbeth”, and we all know how that ended: not the largely dormant demands of the English? very well. We should never underestimate the natural pride of We must also look at the English democratic deficit. the Scots. After all, why else—and I may never be Not the West Lothian question; the English democratic forgiven for saying this—is Judy Murray still in “Strictly”? deficit. I remind noble Lords that before devolution, Not for the strength of her Scottish reels, I fear, but, I when we had peculiarly Scottish legislation decided suggest, because of the depth of her Scottish roots. here at Westminster, it was voted on for nearly 300 years Yet we ignore the English, their sense of fair play and by a large majority of English MPs. If we can thole their tolerance at our peril. that for 300 years, surely the English can thole the I have one fundamental anxiety about this bright problem for a few months or years more. To try to new world that lurks just around the corner. If, after solve it by changes to the Standing Orders—as others the election next May, the English wake up to discover have said, creating two classes of MPs—is the wrong that they are being governed by a party, or particularly way of going about it. Others have said, and noble by a coalition of parties, that they themselves rejected Lords have heard me say time and again in this Chamber, in decisive numbers, in those new circumstances it that we need a coherent and comprehensive look at could be the English who start questioning the union. our constitution through a convention or a royal If that coalition were to be held in place or even commission. I think that we should move towards a imposed on the English through the support of MPs federal, or quasi-federal, system. I said this when the from an overrepresented and devo-maxed Scotland, Liberals were being quiet about their policy. I am not our union boat could be rocked to tipping point. saying that there should be an English Parliament, or 1249 Scotland: Devolution[LORDS] Scotland: Devolution 1250

[LORD FOULKES OF CUMNOCK] within the UK Parliament, or even worse the creation English regions, or a bit of both; that is for the of an English Parliament, we are fooling ourselves. commission to decide, as it consults widely and listens That does absolutely nothing to deal with the question to people. of the centralisation of power in England and the I am pleased that the noble Lords, Lord Maclennan need to devolve power in England. If that is all that we and Lord Hennessy, in their excellent contributions, Westminster politicians can come up with in this debate, said the same thing—if the three party leaders can then many of the people of England will be deeply come up with a vow overnight, surely they can come disappointed. Addressing the question of devolution up with an agreement in a week to set up a constitutional within England is the real and major English question, commission. It could be up and running now. That of which the West Lothian question is a part, but only would make the English feel happier that we are a part. addressing the question and we are under way. I hope The Leader seemed to be suggesting that the Localism that each of us, in our own party, will try to twist the Act, on which I and many noble Lords spent many arms of our leaders. I have been twisting the arm of happy hours, was all that was needed to devolve power my noble friend Lady Royall—she made a brilliant in England. I accept that, if properly and effectively speech, all of which I agree with—that the Labour implemented, it would have been a good start to Party should go ahead with this and encourage the devolving some power to some communities in England. other parties to go ahead with it as soon as possible. It was particularly unfortunate that it coincided with Such a convention could and should also look at the time of the greatest budget cuts that local government the reform of this place and move towards what has ever known. We were encouraging local government Ed Miliband described at the party conference as, and local communities to devolve at just the time when “a senate of the nations and regions”— the resources needed to do so were being taken away SONAR. I like the French system of choosing the very quickly and in very large measure, which was very senate, where grands électeurs—all the elected unfortunate. representatives in each of the départements—choose At this point, I should declare an interest as a their senators. There are many other suggestions that vice-president of the Local Government Association. can be put to the constitutional commission. We still need to address the question of devolution to No one supported the status quo in the referendum. English communities, not just to local government, I did not hear anyone argue in favour of that. Unless although we should remember that local government we heed the call and realise the disaster that has been is made up of the elected represented representatives avoided, we will find ourselves facing another referendum. of local communities and has an important part to I hope that I will not shock my noble friend Lady play. Even before the budget cuts, local government Liddell of Coatdyke, the Secretary of State emeritus, was working increasingly closely with other parts of but if we do face that, and if there have been no the public sector and, especially, with the private sector. changes at the United Kingdom level, even I would be When we look at the devolution of power in England, tempted to vote yes in that referendum. That is an it has to be to the whole community. We have to look indication of the problem that we face. We should all at the public sector as a whole, not just one part of it, be warned that we need to change. We need radical albeit an important part, called local government, and change. The status quo is not an option. it has to involve the private sector in a new partnership relationship. City deals and the regional growth fund 6.46 pm have been a very good start, but they are still central Lord Tope (LD): My Lords, I detected some surprise government giving money—very welcome and necessary when the Leader of the House said in her opening money—and largesse to local government. We need to remarks that England is the most decentralised part of start to address the issue of local government in its the United Kingdom. However she is right. It is the representative role being able to raise more money and most decentralised part of the United Kingdom as being responsible for the charging rate as well as well as, by some measure, the largest. That is really a receiving a greater share of the proceeds. comment about the state of the other three countries In the short time that remains to me, I shall say of the United Kingdom. I have heard it said many something about London because I think I am the times that Scotland has become far more centralised only avowedly London politician who dares to speak under its own Parliament than when it was ruled from in what appears to be a rather anti-London debate. I Westminster. The fact remains that the four countries have had 40-plus years as a London politician, and in of the United Kingdom, and therefore the United all that time I have heard my noble friend Lord Greaves Kingdom as a whole, are the most centralised countries telling me about the evils of the domination of London. in the European Union. What we will do about that, I have tried over and over again to explain to him that particularly in relation to England, is for me the real there is a world of difference between government in English question. London and the government of London. As I have I accept, because it has been placed so high on the been a London borough councillor for 40 years, I have agenda, that the West Lothian question must be addressed. to say to him that London or, as we in London usually I have a lot of sympathy with my noble friend Lord call it, Whitehall, is frankly as far distant from the Glasgow, who said that we have lived with this for 30, London Borough of Sutton as it ever is from Pendle or even 300, years, let us leave it alone. However, it is or Newcastle. That is the issue, not the number of on the agenda and we must deal with it. If we think miles involved—the right to govern oneself. The that a solution can be found by some rearrangement dominance of London within the United Kingdom, 1251 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1252 certainly within England, is at least as important for with Nick Robinson, the BBC’s political editor, a London as it is for the rest of England and the rest of correspondent universally respected for his insight, the United Kingdom. independence and integrity. One of the most encouraging things coming out of Following Mr Robinson’s report of that conference, the debate about devolution within England is the there was a demonstration against the BBC and its joining together of Core Cities, which was originally political editor, as the noble Lord, Lord McFall, formed to combat the influence of London, with the mentioned. Some thousands of yes supporters gathered Greater London Authority and London Councils to outside the headquarters of BBC Scotland, an intimidating recognise their shared interest in bringing about much and frightening experience for BBC staff. The First greater devolution, not only to cities and the so-called Minister was, however, to describe this demonstration city regions but within the United Kingdom. Every as “joyous and peaceful”. Nick Robinson could only week, learned and erudite reports are being published— continue to report the final stages of the campaign there are three more coming out in the next few with a bodyguard at his side. months—about not whether to devolve but how to devolve real power and real fund-raising opportunities The next challenge for the United Kingdom is a to local communities. The demand is there, the expectation resurgence of English nationalism. What Eric Hobsbawm is there, and it is now for government and all political made me deeply conscious of on our walks was how parties to respond to that expectation. nationalism evades the essential discourse between left and right about wealth creation, social justice and 6.53 pm income distribution. For nationalists, there are always Lord Birt (CB): My Lords, patriotism is a positive easy targets: immigrants are stealing your jobs; the force rooted in pride of place, common endeavour and Jews your money; the white farmers your land; the shared culture, perspectives and values. Nationalism, English your oil. Nationalism thrives on economic on the other hand, can be a destructive force, and no reverse and volatility. one expressed that to me more keenly than Eric It is a commonplace at the moment to claim that Hobsbawm, the late, esteemed Marxist historian. Eric there is widespread disaffection with the Westminster was a near neighbour of mine in mid-Wales, and he classes and that the remedy is therefore to tear up our and I would oft-times hike the glorious hills of Brecon constitution and to devolve power here, there and and Radnor together. In the 1930s, as most will know, everywhere. We should be very careful. The modern Eric as a child had to flee Berlin and the Nazis, and he state is indeed a terrible tangle. It is indeed vital to had been forced to move once more in his life, in the ensure that real responsibility and power are lodged at 1980s, from north to mid-Wales to escape the poisonous the appropriate place, whether globally or at national, nationalistic hostility that had confronted him in regional or local level. I agree with all noble Lords Snowdonia. who said that we need to tease away at identifying the right balance between centralisation and Lord Elis-Thomas (PC): I am sorry to intervene on devolution or decentralisation. We must, of course, the esteemed noble Lord, but as the Member of honour our promise to Scotland, but we should take Parliament at the time and as the Assembly Member our time about everything else and answer the questions for Meirionnydd, I can assure him that his version of properly. events borders on an imaginative treatise that I will never be able to subscribe to. In particular, we should be extremely cautious of so-called English votes for English laws. It is indeed Lord Birt: I can only say that, on our long walks anomalous, as I am sure everybody agrees, that Scottish together, he felt extremely passionate about it and it MPs vote on English matters, but perhaps, as the caused him to move home. He had lots of chapter and noble Lord, Lord Kerr, suggested, it is an anomaly verse to support his feelings. that we should simply live with, for England is by Though many on the yes side of the Scottish population 84% of the United Kingdom. It is one referendum campaign behaved with propriety and thing to create special arrangements for three national conviction, others acted dishonestly and with menace. regions representing respectively 8%, 5% and 3% of The noble Baroness, Lady Liddell, brought that out the population, but it is quite another to make special extremely forcefully. The evasion about the critical arrangements for 84% of the population. That would issues in the referendum campaign—the currency, a simply drive us further apart. central bank, the NHS or membership of the EU and Let me cite an extreme example to illuminate a NATO—was without precedent in any election or point. The noble Lord, Lord Tope, mentioned London. referendum campaign that I ever experienced. Imagine if London and the south-east, at some point There was no better example of menace, among the in the future, pressed to be a city state. It is by far the many, than the singling out by the First Minister of most prosperous region in Europe, not just in the UK. Nick Robinson and the BBC. At a very difficult moment Enormous wealth passes from London to the rest of in the campaign for the yes side, towards the end after the UK. Picture the impoverishment that would result a series of highly unwelcome interventions from business in Wales and elsewhere from London’s independence. leaders, the First Minister held a press conference for Picture also the vulnerability of a highly fragmented foreign correspondents, extraordinarily packing it with British Isles. Remember the Romans, the Vikings and fevered and noisy supporters. To distract from his the Normans, as well as the Nazis. A united nation difficulties—as usual playing the man and not the shares its wealth by standing shoulder to shoulder ball—the First Minister orchestrated an argy-bargy when threatened. 1253 Scotland: Devolution[LORDS] Scotland: Devolution 1254

[LORD BIRT] establish such a thing as an English Parliament, which The root of widespread disaffection in the electorate, would undoubtedly lead to the break-up of the United which has been much mentioned in this debate, is not Kingdom. The same problem would arise if we had our constitution but the monumental failure of governance two classes of Members of Parliament. That would in the last decade or more. Governments the world also tend to lead to further fragmentation. over, including in the UK, have been fiscally irresponsible. I turn quickly to the implications of the devolution Regulators have failed to protect us against systemic of further tax-raising powers to the Scottish Parliament. breakdown and the finance sector has failed to act In particular, I hope that the Smith commission will with prudence and probity. look very carefully at how the system will work if tax is devolved more to Scotland and there is then a 7.01 pm situation where the Chancellor of the Exchequer has Lord Higgins (Con): My Lords, 50 years ago, to deal with the consequences. We want a clear mechanism. referendums were virtually unknown. Since then they I presume the Scottish situation would have to be have become increasingly fashionable. This is very clarified first and the Chancellor would then decide often prompted by the argument that referendums how he ought to respond. I also have some doubts are democratic. However, I have always felt that that is about the motivation for having greater tax paying not really the case, at least not if you are trying to find and, in particular, income tax changes in Scotland. If the best form of democracy. Referendums tend to it is merely to alter the various rates and allowances, it produce a situation that is really the dictatorship of is not clear why the situation in Scotland should be so the majority. I go along with Edmund Burke in taking different that they need a different set of rates. The the view that the better system is a representative difference between the two countries is not so great as system of parliamentary democracy, in which Members to argue for it. If there is to be more devolved control of Parliament are elected as representatives, not as over taxation in Scotland, it may be that the Scottish delegates. Parliament and the Scottish people would feel that I therefore had considerable misgivings about the they would get some benefit from it. The Government’s proposal for a Scottish referendum and I feel bound to White Paper makes it clear that whatever changes are say that my worries have been amply justified. We have made in the devolution of taxation to Scotland ought avoided falling over the cliff to which many noble not to result in a change in the balance of the allocation Lords have referred in terms of the vote going the of resources between the two countries. If this goes wrong way but, at the same time, the referendum has ahead, I feel that there will be considerable disappointment made more acute many of the underlying problems in Scotland at the effect that controlling income tax which might otherwise have been dealt with in a more rates and allowances actually gives. considered and leisurely manner. We now have to deal Finally, because time is running out, I turn to the with a whole series of things and I feel it might have question of the balance between the two economies been better if we had not had the Scottish referendum and, in particular, the Barnett formula. My noble at all. friend Lord Lang of Monkton, in his splendid speech, That is water under the bridge but what has come spelt out very clearly all the problems associated with out clearly in this debate is how acrimonious much of the so-called Barnett formula and, in particular, the the debate in Scotland was. The situation was exacerbated allocation of the block grant. The present situation is by the panic ahead of the vote following the so-called not fair on England and the block grant probably vows by the party. As far as I can establish, these vows needs to be adjusted. This point came out to some were made with absolutely no consultation whatever extent in the course of the referendum campaign. One with their parties. It was further exacerbated by the must wish the Smith commission well on a very difficult immediate reaction of the Prime Minister following range of issues. It will have to decide how to reconcile the vote, which set down a very tight timetable—a the devolution of tax powers to Scotland with the timetable reaffirmed by my noble friend the Leader of overall macroeconomic management of the economy the House. by the Chancellor of the Exchequer on behalf of the United Kingdom as a whole. My noble friend did not deal at any great length with the ways in which the West Lothian question, which has been such a feature of this debate, would be 7.09 pm dealt with. My own feeling is that it would be a serious mistake to try to deal with the problem by primary Baroness Quin: My Lords, like others I welcome the legislation. Making changes to the Standing Orders in fact that this debate is taking place after a no victory the other place might be a better way of dealing with in the referendum in September. I also welcome the it. Perhaps the Speaker of the Commons could simply fact that the debate has been marked by the maiden certify a Bill as being an English Bill, in the same way contribution from my noble friend Lord Lennie, who that he certifies whether a Bill is a money Bill. I gave us a very entertaining and thoughtful speech. As suspect that the number of purely English Bills would a fellow north-easterner, I am very pleased to welcome be far fewer than one might think. Then there might him to the House and echo his kind words about that be voluntary abstinence on the part of Scottish Members special and historic town of Tynemouth, where I was from voting on particular items where such matters born and lived for a number of years. were clearly dealt with in Scotland by the Scottish I spent most of the summer campaigning for Better Parliament and so ought to be matters for English Together in the borders region of Scotland, which is Members in the English Parliament. We should be not far from my home just south of the border in very cautious about anything formal and certainly not Northumberland. It was an exhilarating and troubling 1255 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1256 experience—exhilarating because it was a real pleasure a UK Parliament—perhaps particularly so because to work alongside young volunteers in the borders our voting patterns are much closer to voting patterns regional office. It was the first time in many years of in Scotland and Wales than they are to certain parts of political campaigning that I have taken my leafleting England. and canvassing instructions from 19 and 20 year-olds, Devolution is not just about nationality; it is also but they were extremely able and inspiring young about taking decisions at an appropriate level. I remember people, to whom I pay a very warm tribute. when I was Prisons Minister for a short time, in 1997, At the same time, there were many troubling elements when we put forward the devolution legislation. In the of the campaign, referred to particularly by my noble course of my work, I spent two days with the Scottish friend Lady Liddell. Even in the borders, where it was prison service; at the end of that, I felt that it would clear that the no vote was in a strong majority, people rather be Scottish Prisons Minister than England and were nervous about putting no posters up in their Wales Prisons Minister, simply because the scale on window or no stickers in their car. There was an which the Scottish Minister operated meant that it intimidatory side of nationalism which really troubled was possible to get prison governors and the people me throughout the whole of that campaign; that is involved in the prison system around a table to hammer something that we have to think very carefully about out a policy on an appropriate scale. We must keep when we move forward in the period that lies ahead. thinking of the appropriateness of decision-making when we approach this devolution issue in England. In my experience, people voted no not because of the last-minute promise of powers, although they are We should not hurry. We should deliver on our important and I support them. They voted no for two promises to Scotland—that is vital, because we have reasons. First, Scots are well aware of the interdependent made those promises—but then we should think carefully, nature of the UK economy in terms of trade, business either via a royal commission or a constitutional and currency; but the other reason, which I think was convention, and not impose a top-down solution. just as strong, was their recognition of the close family While I personally favour regional government in the links and bonds that unite us across the United Kingdom north-east and hope that it can come back on to the and make people in the borders and elsewhere in agenda as my noble friend Lord Prescott outlined, I Scotland feel British as well as Scottish and not wanting none the less think that England will need different to destroy those links for the future. solutions for different areas. Simply trying to draw something up within Whitehall and Westminster is not My conclusion from the work that I did during the good enough. We have to think carefully about how campaign was really that our first priority should be we involve people as we move ahead. to ensure that the UK as a whole works better together for the future. Indeed, crossing, as I did, the border 7.16 pm every day, I would certainly like to promote some cross-border infrastructure projects, which would be Lord Thomas of Gresford: My Lords, it was a great very necessary—in particular, the long overdue dualling pleasure to hear the noble Baroness, Lady Quin, deal of the A1 between Newcastle and Edinburgh, which I with the most outstanding achievement of the Welsh seem to have berated every Government about for the Labour Government, and that is to put a charge of 5p last 30 years, yet we still have not made the progress on plastic bags. that we would like. There are also train links, which Home rule is a Liberal invention. Mr Gladstone are very topical at the moment with all the talk about said in Aberdeen in September 1871: HS2 and HS3; so far, they do not seem to benefit “This United Kingdom which we have endeavoured to make a hugely the north-east and Scottish link. Perhaps that united kingdom in heart as well as in law, will, we trust, remain a could also be looked at. Furthermore, we should try to united kingdom. If the doctrines of Home Rule are to be established make the devolution settlement that we have at the in Ireland, I protest on your behalf that you will be just as well moment work better, perhaps by having a better dialogue entitled to it in Scotland. Moreover I protest on behalf of Wales, between the different bodies. I thought about this in which I have lived a good deal and where there are 800,000 people who to this day, such is their sentiment of nationality, when supporting what the Welsh Government did in speak hardly anything but their own Celtic tongue—I protest on terms of plastic bags. We in England may at long last behalf of Wales that they are entitled to Home Rule there”. be going down that route, but surely it would have Mr Lloyd George echoed those sentiments in 1891, been good to have had more dialogue about it between calling for “Home Rule all round”. Jo Grimond believed the devolved authorities. When it is a good idea, that power was not to come top-down, as the noble perhaps we can work together and perhaps in a more Baroness said, but to spring up from the people. He timely way than has been done so far. wrote: Unsurprisingly, a lot of this debate has been devoted “I find it difficult to see how, if the case for Scottish and Welsh to the so-called English question. I am not at all self-government is accepted at all, any powers can be reserved to attracted to the kind of pan-England or all-England the UK government except foreign affairs, defence, and the wider solution that has been mentioned, particularly that of issues of economic policy linked to a common currency and English votes for English issues. Even if Scotland, common trade policies”. Wales and Northern Ireland did not exist, there would This was the model in the Hooson Bill for a Welsh be a very great centralisation problem in England, Parliament in 1967, which I drafted myself. which would need to be addressed. We should keep Home Rule is not independence. We in Wales agree that firmly in our minds. I feel that very strongly in the with Mr Gladstone that this is a United Kingdom of north-east. In many ways, I think that we would feel as the heart, as much as of political economy. The first marginalised in an English Parliament as we would in impact of the Scottish referendum on Wales was to 1257 Scotland: Devolution[LORDS] Scotland: Devolution 1258

[LORD THOMAS OF GRESFORD] We also have it in our Liberal Democrat manifesto reduce the support for independence for Wales from to implement part 2 of the Silk commission, which 7% to 3%. This was according to a BBC random poll will move Wales to the reserved powers model called of over a 1,000 adult respondents between September for— 19 and 22. This is not in the least surprising. Welsh nationalism has always been focused more on cultural Lord Elis-Thomas: Did I hear the noble Lord right? identity, tinged perhaps with a little bit of arson, Did he accuse the Government of Wales of refusing to rather than political power. The Scottish referendum hold a referendum on taxation powers? How can a campaigns revealed only too starkly the impact that Government possibly hold a referendum on something independence was likely to have upon the economy in which has not yet been passed by this House? the relocation of banks and of industry, upon the pound in the pocket, upon relationships world-wide, Lord Thomas of Gresford: I am sorry, I did not upon defence obligations and upon jobs. quite catch what the noble Lord said. It was argued by the yes campaign that Scotland paid more in taxes than it received; it would easily be Lord Elis-Thomas: I am grateful to the noble Lord more than self-sufficient, and they could afford to go for allowing me to intervene again. I heard him imply their own way without detriment to the people. This that the Welsh Government had refused to hold a calculation, dubious in itself, was in any event dependent referendum on tax-varying powers in Wales. How is it upon the total success of all their claims in negotiations that a Welsh Government, or any other Government, with the rest of the United Kingdom. That assumed a for that matter, can hold a referendum on a matter hearty goodwill and a desire on the part of the taxpayers which has not yet been legislated? of England, Wales and Northern Ireland to underwrite the economy and banking system of an independent Lord Thomas of Gresford: That is the stated policy country north of a newly defined border. It was a of the First Minister of Wales, as the noble Lord fantasy. knows perfectly well. Wales is not Scotland. We raise in taxes only 70% of We have in our own manifesto the intention to the money we spend. It is not because we are weak or implement part 2 of the Silk commission, which will poor in ability or ingenuity; it is because our basic move Wales to the reserved powers model that was industries of coal, slate and steel are exhausted. Wales called for by Jo Grimond and which operates at the shares its wealth, as the noble Lord, Lord Birt, said. moment both in Scotland and Northern Ireland. We We did not call it Welsh coal when it was mined. hope that normal political processes will operate to However, today, according to key economic indicators install in the Assembly a Government which will use published by the Office for National Statistics last the levers that they are being given to deliver the July, we are the poorest part of the United Kingdom. infrastructure upon which an expanding economy We had hoped that a devolved Government would lift depends: outstanding education in accordance with us economically, but it has not happened. Public services Welsh traditions and a healthy NHS. Let us see if in education and health are falling behind England. It Scotland can match us then. is clear that a devolved Government in Wales requires some form of equalisation funding. 7.24 pm The Barnett formula, while generous to Scotland, Earl of Stair (CB): “Should Scotland be an independent as the noble Lord, Lord Lang, pointed out, underfunds country?” is the straightforward question which was Wales, according to the Holtham commission, to the put to the people of Scotland and voted for on tune of some £300 million a year. We need fair funding: 18 September. The result, by 55% to 45%, was a clear a needs-based formula which would restore parity to statement of the settled will of the people, with the our communities and our public services. As an immediate largest turnout in recent times. It will, I hope, be stop-gap, the Holtham commission recommended a respected. “Barnett flaw”. If anybody wants to know what that Scotland should stay united with the remainder of is, perhaps they would like to buy me a drink afterwards the country. Whether the result would have been any and I will explain. different without “The Vow”, and all the other last-minute In the medium term, a formula must be devised promises and speeches, we will never know. I can only which takes into account an ageing population in say that the majority of people that I spoke to in a Wales, the additional health burdens which mark a mostly rural area were adamant that they had made post-industrial society, but above all the need to revive their minds up several months before September, and and develop the Welsh economy and create jobs. I many had already voted by post. remain wholly committed to devolution. There are Irrespective of the result, there would always be signs of progress. The coalition agreement in paragraph 24 approximately 50% of the population who would be recognised the concerns of the Holtham commission dissatisfied with the result. This prediction has sadly and undertook to establish a process similar to the proved to be correct. Those supporting independence Calman commission in Scotland. This resulted in the have always been more vocal, and we should be in Silk commission and we are currently putting through absolutely no doubt that the passion for independence this House part 1 of its proposals, which will chiefly is as strong as ever before. Add to this the new leadership introduce borrowing and taxation powers. It is a sad of the SNP and the claimed increased membership, commentary that the Government in Wales refuse to and I would urge the Government in this House and hold the referendum which would bring those taxation the other place not to be complacent with the present powers into operation. result. 1259 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1260

However, I feel that I should not only acknowledge power from scrutinising its own legislation, particularly the SNP and the work that it did on the campaign that in the light of further financial and other powers being it conducted, which was extremely well organised, but transferred? also pay compliment to many individual members of I conclude with two brief statements. First, the the other political parties—MPs, Peers, and MSPs—who clear majority wish to remain in the union and this worked so hard for the no campaign, sometimes, as we must not, under any circumstances, be forgotten. Secondly, have heard already, under extremely unpleasant the obligations that have been mentioned before to the circumstances. Sadly, at the regional and lower levels vows must be fulfilled, but not at any cost that we will of campaigning, the issues started getting confused, all later regret. and deep divisions were created between families and friends. 7.29 pm What started as a clear question became further Lord Cormack (Con): My Lords, we are having a confused when the Westminster leaders began to realise fascinating debate, as we always do on these topics, that what had been considered to be an unlikely yes and we have heard some remarkable speeches, including result was in fact a very real danger to the 300 year-old a very notable maiden speech. United Kingdom. That a referendum in the United There is a danger of losing sight of the fact that it Kingdom should provoke foreign Governments and was a very positive result. If in the general election businesses to comment should have been a further next year one party had 10%-plus more votes than the warning. I met an ITN cameraman who had arrived in other, the papers would be writing about landslides. Scotland to cover the referendum day. He was deeply That is the context. We also have to remember, as surprised by what he found in comparison to the someone pointed out earlier, that the percentage of briefings that he had been receiving in London. the Scottish electorate who actually voted for independence I agree with the noble Lords, Lord Steel and Lord was 37%. The figures are just under 45% of those who McConnell, that the Prime Minister made a terrible voted and 37% of the electorate. However, that should mistake on 19 September, when rather than quietly give us no cause for complacency. accepting the result and making every effort to reunify We have heard various views and I want to turn to the United Kingdom, he chose to open two new issues England in a minute, but one thing that has run that have completely distracted from the referendum through this debate is that everyone believes that the result. The West Lothian question and devolution for pledges that were made must be honoured. I happen cities and regions in England and the remainder of the to believe that some of those pledges were unnecessary United Kingdom should never have been raised until and that some of them were made as there was a lurch the Scottish referendum had been dealt with and put from complacency to panic based on one rogue poll. finally to bed. It would have been a very good idea Nevertheless, we must not devalue the political currency if, rather than standing on the steps of Downing or the credibility of the United Kingdom by reneging Street, he had gone to Edinburgh and made a statement on those pledges. there. I agree very much with those, including the noble Earl, Lord Stair, who say that it was a pity that in the We now have the Smith commission, which will immediate aftermath of the referendum a commitment produce recommendations for further devolution. This was made to accelerate the examination of the wider will almost certainly involve devolving further implications and to fix an English timetable. I was in financial control, tax-raising powers and many other the other place when we debated devolution in the recommendations. Many of these are being put forward early 1970s. I did not vote for it because I feared—and by independence supporters and could lead to virtual I said so at the time—that some of the things that have independence by the back door. I hope that there will happened would come to pass. However, that is all be very careful consideration of the recommendations over; we cannot go back. We have the Scottish Parliament and the debate will not become a political mêlée in the and we must sustain it, but the West Lothian question lead-up to the general election. has been around for 37 years and it does not need to Whatever is concluded from the Smith commission, be solved in 37 days. the organisation that started life some 15 years ago as Concerning the acronym EVEL, I would say, “Speak the Scottish Executive has evolved to a Government no evil, see no evil, hear no evil”. “English votes for and is soon to be an even more powerful Executive. English laws” is a phrase that comes trippingly off the Because of this, I would like to raise a question. When tongue, but it does not recognise the fact that almost the Scotland Bill was debated in this Chamber many 85% of the population of the United Kingdom is in years ago, there were numerous exchanges between the England. We are not able to have a normal federation late Lord Mackay of Ardbrecknish and the noble in this country, nor do I want to drift down that road. Lord, Lord Sewel, on the necessity for a second Chamber However, the 85% have to exercise a degree of in the Scottish Parliament. It was deemed not to be magnanimity in order to maintain the union. Although, necessary. This has proved not to be correct. I believe when new powers have been devolved, there has been a the following is still in the Westminster Government’s case for fewer Scottish MPs—there is a precedent for power, but may require primary legislation—I am sure that both in Ireland and in Scotland itself—I do not that the Minister will correct me. With the inevitable believe that there is a case for having two classes of greater powers, will the Scottish Parliament be reorganised MP at the other end of the corridor. I think that would to allow for a second Chamber, or at least have the be a retrograde step and it would indeed be playing to committee system reorganised to prevent the party in English nationalism. 1261 Scotland: Devolution[LORDS] Scotland: Devolution 1262

[LORD CORMACK] contrary. The prime duty that we have if we are to The noble Lord, Lord Birt, talked about the difference acknowledge and deal with varying local needs and between patriotism and nationalism. English nationalism local opportunities in the economy, the environment could be a very ugly force. It could do great damage and social provision is to ensure that local government and could indeed lead to the break-up of the United is strengthened and enabled to work effectively with Kingdom. I hope very much that there will be considered central government and its agencies. reflection in high places and that all the calls that have I have long been interested in the problems of the come from this Chamber today for a commission or a north-east and what became known as regional policy. convention will be heeded. I personally would favour a I served on the regional policy group of my noble royal commission, and I am glad to see the noble friend Lord Prescott in the 1990s and regret that the Lord, Lord Hennessy, who I thought made a brilliant Labour Government did not adopt its more ambitious speech, nodding at that point. There are not trite proposals. But, perhaps more relevantly, I was also solutions that are right solutions, and there are not involved with the Local Government Association in glib answers that are glad answers. It is crucial that we developing the concept of Total Place—the idea that get this right because we have to look to the future. councils should lead partnerships in which the totality Half my family is in Scotland. My eldest grand- of public spending for an area could be brought daughter voted at the age of 16. I do not necessarily together, with government departments and agencies, agree with the noble Baroness, Lady Liddell, on that, local councils and the directorates getting out of their but I know that my grand-daughter and all her classmates silo-based approach to policy development and service took this matter exceptionally seriously. Why did they delivery. In that way, they would be much more strategic vote as they did? They did so because they believed and effective, with the added potential bonus of generating that the opportunities and the heritage would be greater efficiencies by sharing services. To their credit, the if they remained British and part of the United Kingdom. Labour Government adopted the idea, with the Treasury That is something that the campaign lost sight of. being particularly supportive alongside the DCLG. How right the noble Lord, Lord McFall, was to talk Sadly, other departments were not similarly engaged about how unfortunate we were to put ourselves in the and progress was slow, with very little evidence of any position where, to maintain the United Kingdom, enthusiasm for the concept in the last four years. people had to vote no. That should never have been There have been some welcome initiatives—for conceded. If there is a referendum in the future, it has example, city deals, which have been mentioned this to be under the auspices of the United Kingdom afternoon—but little in the way of bringing together Parliament and we have to look very carefully at the such programmes as health, welfare, education, including question. I hope and believe that that will not be further and higher education, housing, transport and necessary. others, which, in addition to economic development, I believe profoundly in this United Kingdom and I need to be marshalled if the problems of communities believe profoundly in the good that it has done. We are to be effectively addressed. should not forget that the greatest days of this country The creation of combined authorities, with Greater were when there was one Parliament for one country. Manchester leading the way—I note that my noble Although those days will not return—I accept that friend Lord Smith of Leigh will be speaking in this entirely—we should try to recreate the spirit of the debate and no doubt will refer to it—offers a potentially United Kingdom. It took us through the war and we powerful mechanism to drive part of this agenda. will be commemorating the 70th anniversary of its Although it seems obvious, for example, that the Highways end next year. As we commemorate that and the Agency should be accountable to authorities in the 50th anniversary of Churchill’s death, let us remember different areas in which it operates, and that it and that the United Kingdom together is, as we have said other public services and agencies should be part of before, so much more than the sum of its constituent the Total Place partnerships, there are two critical parts. In satisfying certain demands within England, requirements without which decentralisation will fail. we must not forget that magnanimity in victory should always be our English slogan. The present Government have deliberately offloaded responsibilities to local authorities, for example in the 7.36 pm area of council tax support, without the necessary financial resources. I have described this process as Lord Beecham (Lab): My Lords, I refer to my local passing the buck without passing the bucks. Moreover, government interests contained in the register, and I they have deliberately skewed the system of local join other noble Lords in congratulating my noble government finance to impose much larger reductions friend Lord Lennie on a remarkable maiden speech. in grants, and therefore cuts, on predominantly urban He has the somewhat dubious distinction of having at authorities. This has led to huge and disproportionate one time been a constituent of mine, and I suppose it cuts, not only for the north and Midlands but also for is possible that he might even have voted for me in the inner London boroughs such as Newham, Lambeth odd council election—or not. and Hackney, and coastal towns such as Great Yarmouth There is a danger when debating devolution of and Blackpool. This has had devastating consequences being sucked into discussions about systems, processes for essential services. Merely passing tax-raising and and boundaries when what matters is outcomes in tax-collecting powers to local councils will avail little if localities. I prefer to frame the debate as one about the tax base is inadequate. The grant system must be decentralisation in one of the most centralised countries based on need. In effect, we need an English version of in Europe. I concur with the dissent expressed by the the Barnett formula, as recommended by the noble noble Lord, Lord Tope, from the Leader’s view to the Lord, Lord Lang. 1263 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1264

Higher priority needs to be given to infrastructure both the Scottish and Northern Irish settlements refer investment. Compare, for example, the £15 billion directly to the Human Rights Act, yet we have suggestions spent on Crossrail with the estimated £7 billion that from some quarters that that legislation might be just might be spent, at some point in the dim and very repealed. If it were, we do not know whether that distant future, on the misnamed HS3 project to improve means unpicking the Scottish and Northern Irish the rail system linking the north-west, Yorkshire and devolution settlements. I hope not—I think it may just the north-east, with a population roughly the same have been overlooked—but that was the implication of size as that of London. In addition, there should be what has been proposed. national minimum entitlements to key services, not Some noble Lords may think it has now gone away, the minimal entitlements to which we are rapidly but I have another worry, which is about the notion of descending. devo-max. It played a very large part in discussions, We need to redress the profound inequalities which over the last couple of years, about what would happen disfigure our society and hamper our efforts to grow in the event of a no vote, which is what we actually the economy in a globalised, competitive world. We got. It is a very unclear slogan and I suppose it was need to restore hope to a generation of young people meant to indicate an aspiration. However, it seems to and to communities where too many lives are stunted me that it was well chosen to indicate an illusory and by poverty, ill health and the sense of being neglected. ill defined aspiration. Devolution is the sort of thing Power and resources must be restored to democratically that anybody would be pretty ill advised to try to elected local government, in partnership with central maximise. To me, maximising means that you have got government. To facilitate these developments and ensure some clear unit and you get as much as possible. What genuine cross-government involvement, we should also is devo-max and what was it meant to be? As we think restore a regional presence for government itself. In forward about devolution we should surely aspire, not the 1980s, the Conservative Government established to maximise something but to get something coherent regional offices, eventually involving most departments, and workable in which powers are not devolved without which became an invaluable two-way conduit for concerns, the responsibility to exercise them or without the information and dialogue between localities and the resources or tax-raising competence to do so or without centre. The present Government abolished them, along accountability for how it is done. The overall aim must with the regional development agencies, a piece of be to secure devo-coherence for each part of the politically inspired vandalism which has greatly weakened United Kingdom, not devo-max. My slogan is, therefore, the intelligence base of individual departments and the not very enlightening one: devo-coherent. the Government as a whole, as well as the capacity to I will say a little bit about devolution and delegation. harness resources across the board. Mere delegation of powers, responsibilities and resources The changes I advocate seek to address the real does not constitute a feasible scheme of devolution. problems we face, not the political gamesmanship of Devolution is not the same as delegation for many English votes for English laws. It is an agenda of different reasons, but I will emphasise one which is decentralisation and partnership. Call it what you will; often overlooked. Powers have often been delegated call it devolution if you must, but let us get on, with on the assumption that, at the other end, there are the urgency that the situation demands, with empowering bodies that are delivery agencies of centrally prescribed local government and central government to work aims. There is little gain for anybody in devolving together—and, yes, with the private sector—in the powers and then prescribing exactly how they have to interests of ensuring that they make the necessary be discharged. The supposed gain in democratic impact on the lives of communities and citizens. accountability that might be achieved by a coherent scheme of devolution would be entirely lost if it was accompanied by a centrally prescribed set of boxes to 7.42 pm be ticked, performance indicators to be met and measures Baroness O’Neill of Bengarve (CB): My Lords, I that effectively remove all discretion in the use of the begin with two declarations of interest, one of the supposedly devolved powers. This has corollaries that heart and one of the head. Both are relevant to this may not always be welcome. If devolution is about debate. From the heart, I have four grandparents, one permitting variation and decision-making at a lower Irish, one Scots, one Welsh and one English. That level and if variation is allowed then complaints about means I have a stake in many parts of this debate. I postcode lotteries when various decisions are made spent a lot of the six months leading up to the referendum are simply out of bounds. This does not mean that with sleepless nights, worrying, not just about what accountability for devolved decisions is out of bounds; would happen to Scotland, but about the results for on the contrary, it becomes more essential. However, it Northern Ireland had there been a yes vote. The noble does mean that the forms of accountability adopted Lord, Lord Empey, has already hinted at these and I must fit the case and in smaller jurisdictions where, as suspect the noble Lord, Lord Bew, will tell us more. we say, everybody knows everybody, thinking how to Thank goodness we will never know what those results make forms of accountability effective can be quite would have been, but those people in both Belfast and divisive. Dublin who knew the situation best thought that they Devolution, variability and parity are aims we should could well be catastrophic. It is a fragile settlement. all have. I return to our ragged set of devolution From the head, because I chair the Equality and settlements. There is no need for uniformity. Inevitably, Human Rights Commission, I have had occasion to the settlements for Scotland, with its ancient legal look at some aspects of our ragged devolution settlements. system, and Northern Ireland with its partly necessary—if They are quite different, but it is worth noting that considerably dysfunctional—consociational constitutional 1265 Scotland: Devolution[LORDS] Scotland: Devolution 1266

[BARONESS O’NEILL OF BENGARVE] The Irish home rule proposals brought forward by settlement, will need to be varied to take account of Mr Gladstone in 1886 to provide for limited devolution realities. However, it is also essential to take account to a Parliament in Dublin at once exposed to view the of and respect the unitary status of citizenship in the central difficulties of Westminster representation and United Kingdom and to ensure that fundamental taxation. Mr Gladstone anticipated Tam Dalyell and rights and protections are there for all, and that advantages Enoch Powell by nearly a century. His notes for the and disadvantages are traceable to accountable, devolved great speech in which he introduced the first home rule decisions and not to asymmetries in the way the overall Bill in April 1886 contained poignant words of enduring devolution settlements treat those living in the various interest. He said: jurisdictions. We need to think very hard about the “Ireland is to have a domestic Legislature for Irish affairs”, rights of citizens and the sorts of redress for breaches of rights that must be available to all. Like the noble and “cannot come here” for, and learned Lord, Lord Hope of Craighead, I believe “English and Scotch affairs … The one thing follows from the that common citizenship requires devolved structures other. There cannot be a domestic Legislature in Ireland dealing that respect the same underlying standards and provide with Irish affairs, and Irish Peers and Irish Representatives sitting rights of appeal to the Supreme Court for all in every in Parliament at Westminster to take part in English and Scotch jurisdiction. affairs.”.—[Official Report, Commons, 8/4/1886; col. 1055.] We have to accept that Scotland will get ahead in Scotch, incidentally, was a widely used alternative to devolution. The promises, the vow, guaranteed that. Scottish before it became confined to the most delicious We probably have to accept that for a time Scotland beverage known to man. continues to enjoy more favourable financial terms Gladstone offered the proposed Dublin Parliament than the rest of us. Again, we had better swallow that. very limited powers of taxation. Reluctantly, he But we do not have to accept that the status quo is the reconsidered his initial plan for the total exclusion of future. I believe that it will take a constitutional convention Irish representatives from Westminster. His second and genuine leadership if we are to have a wider and home rule Bill in 1893 proposed to cut the number of coherent form of devolution. Irish MPs at Westminster from more than 100 to 40 but without restricting the matters on which they 7.49 pm could vote. The same approach was embodied in the Lord Lexden (Con): It is an enormous pleasure to third home rule Bill, which Mr Asquith introduced in follow a most distinguished member of one of Ulster’s 1912. Indeed, this was the way in which the issue was oldest families with strong family links, as we have settled in 1920 when Northern Ireland’s devolved heard, throughout the United Kingdom. I take the Parliament was created. Ulster was given 13 MPs, view that the union on which our great country is significantly fewer than its population warranted, with based gained no more than a reprieve in the recent a subsequent reduction to 12 when university referendum. I could not disagree more with those who representation was abolished. The arrangement gained say that the referendum result made the union secure general acquiescence with occasional protests from for a generation. We face the extraordinarily difficult the Labour Party. It is a point on which we need to task of putting our United Kingdom on a secure, reflect. long-term basis for the future to preserve it for the Significantly, no one in the late 19th century generations that are to come. Above all, we must work contemplated for long the approach which so many to infuse all four constituent parts of our country with favour in relation to Scotland: arrangements to prevent a sense of common purpose which they have increasingly MPs from Ireland voting at Westminster on matters lacked as devolved institutions develop separately from that were to be devolved to Dublin. Gladstone toyed one another in three of the four parts. That should be with the idea but swiftly rejected it. Not for him, not done by revivifying unionism, of which my noble for that generation, was the notion of two categories, friend Lord Lang of Monkton and others spoke two classes of MPs, to be seriously entertained. For eloquently in the debate in January. my part, I strongly deprecate it as incompatible with a Once upon a time unionism was practised successfully successful union settlement. by the Conservative and Unionist Party, particularly in the days when it was known simply as the Unionist It is perhaps a source of some comfort and some Party, a name which it retained in Scotland until 1965. relief to recall that the severe constitutional difficulties The Conservative Party needs to recover its unionist with which we now wrestle absorbed great political mission, and fast, just as the leaders of all political intellects in the past. In the end, they found it impossible parties need to recover a sense of statesmanship, the to devise a constitutional framework that would central point in the truly brilliant speech made by the satisfactorily reconcile devolution with the existing noble Lord, Lord Hennessy. dispensation at Westminster. Will we in the end be led to the same conclusion? If so, we will find that there is I hope that I will be forgiven for dwelling a little on another great figure in the unionist tradition from this certain aspects of the past, which provide one or two period who can help us. useful points for the present. The extraordinarily difficult constitutional terrain in which we now find ourselves This year marks the centenary of the death of Joe was very familiar to our country’s politicians in the Chamberlain, the radical firebrand who entered into 30 years before the First World War, as they grappled alliance with the Conservatives to preserve the union. unsuccessfully with the problem of putting the He said that it could only be done on a federal basis. Government of Ireland on a secure long-term basis There was no other way of reconciling devolution within the union. with constitutional harmony and fairness. 1267 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1268

Speaking at the inaugural meeting of his National feeling of loss of personal significance that is very Radical Union on 17 June 1886, Joe Chamberlain said central to it and which lays many people in this that in any rearrangement of our constitutional system country open to appeals from populists and extremists. we are bound to see that new provisions are so devolved We therefore have to get on with the final, as to be applicable to Scotland, Wales and other parts comprehensive constitutional settlement. When I look of the United Kingdom as well as Ireland. In the at what has been happening with our constitution in weeks since the Scottish referendum and the recent years, it seems that it has been a patchwork announcements of further devolution to Edinburgh, I affair, and very confusing for many people throughout have found myself wondering more and more whether the United Kingdom. It has been dealing with this or Joe Chamberlain should perhaps be our guide at this that issue, which always has implications for other grave hour in our nation’s constitutional history. issues, but there has been no road map, no master plan, no goal, and no sense of destiny or direction. I think that is why a royal commission or other convention 7.56 pm is so essential, and quickly, so that we produce a road Lord Judd (Lab): My Lords, I regard myself as map which can enable people to look at the interrelated English and Scottish. I had an English father and a issues and how we are going to take the situation Scottish mother who both were very proud of their forward convincingly. This is precisely not the time for nationhood. Therefore, I have always seen the United knee-jerk reactions and populist moves of one kind or Kingdom as a marriage between two partners, each another. with their own vivid background. History, culture and That work has to be transparent. It has to engage religion—each has its identity. I look at the right and involve the widest possible cross-section of the reverend Prelates opposite and I am glad to see them community. I am quite convinced that, unless we have here as members of the Church of England. When I it, we will be facing one constitutional crisis after look at them I think of the vivid stories told to me by another. I believe that, given the logic of all that has my mother and my grandmother. They spoke about been happening, with the priority that devolution has the General Assembly of the Church of Scotland and been taking in recent years, the logical way is to get on all that that meant to them, and the character and the with building a federal United Kingdom. We will have verve of the General Assembly and the rest. That was a stronger United Kingdom on a federal basis than we very real too. My grandfather was a minister in the do by trying to insist that it remain upon a unitary Church of Scotland and secretary of its foreign missions. basis. I keep very close to my English and my Scottish family. I was surprised and rather shaken by the number 8.02 pm of them who told me in very firm terms that they were going to vote yes. They were mostly church people. I Lord Shipley (LD): My Lords, as someone who also confess that they were professional, middle-class people comes from the north-east of England, I congratulate who were mainly in the caring professions and education. the noble Lord, Lord Lennie, on his admirable maiden When I reasoned with them and said, “Look at all the speech. issues facing both England and Scotland, and Wales I am much encouraged by the Government’s and Ireland. Can’t we tackle them more effectively achievements in devolving power across the UK since together?”. One cousin, in very firm terms, said, “Frank, 2010, with the Scotland Act 2012, with the Wales Bill, that is a very powerful argument but it is too late. We together with city deals and local growth deals in are absolutely exasperated and fed up with the arrogance England, which have enabled local economic areas to of the south-east and London, which runs the United lead investment decisions. The referendum result in Kingdom almost totally from that standpoint and Scotland is now accelerating that process in England does not recognise our identity”. where there is an appetite for greater devolution. We have to recognise that there is a powerful feeling There is, however, a huge difference between in the people of Scotland of a strong desire to express Scotland—which already has a parliament and significant their nationhood, and their self-confidence in their devolved powers, and which debated independence for nationhood. We may have won a vote by 55% to 45%, two years—and English regions and subregions, which which is a quite significant result, but we have not have no directly elected structures and few devolved finished the argument. What now follows will be crucial. powers and have not, with a few honourable exceptions, If there is disillusion in what follows, goodness knows been thinking much about devolution other than in what will happen the next time that there is a referendum. terms of general ambitions. Defining what is wanted I agree with those who argue that it will come sooner in detail, with clarity about governance and resourcing, rather than later. We must discharge what we have place by place, is an essential prerequisite to successful promised, and we must discharge it rapidly and by the devolution. timetable that has been announced. There have been a number of think tank reports on Some of these issues, of course, are not just about devolution within England, together with policy statements Scotland. In many parts of England and Wales there by bodies such as the Local Government Association, is a feeling of alienation from the political system. of which I am a vice-president, Core Cities, the County There is a feeling of loss of significance and identity, Councils Network and the London Finance Commission. and people are yearning for them. When we know that With the City Growth Commission adding its weight the body politic, of which we are a part here in last week and with two further independent commissions Westminster, is held in great disrepute by many people reporting over the next three months—the Independent in our country, we have to recognise that it is this Commission on Economic Growth and the Future of 1269 Scotland: Devolution[LORDS] Scotland: Devolution 1270

[LORD SHIPLEY] of responsibilities to Greater Manchester would make Public Services in Non-metropolitan England and the public spending go further and would increase tax Independent Commission on Local Government revenues by increasing growth. The ambition is to Finance—a detailed set of evidence is being assembled. bring tax and spending further into balance, and that Scotland voted no in the knowledge that even a no is right, but not all places can do this, and we will still vote would result in extensive new powers following need a system of equalisation which protects those the vow delivered from Westminster a few days before areas less able to increase their tax revenues. polling day. Newspapers across the north of England Secondly, the UK must remain responsible for followed up on the day after the Scottish referendum UK-wide policies, such as major infrastructure investment, result, asking the Government, “Now what is your and for the core policies behind public services and vow to the North?”. It is a reasonable question, but it welfare provision. invites the reply “Exactly what powers do you want?”. Thirdly, on governance, with devolved powers come Thankfully, ResPublica, with Greater Manchester, extra responsibilities for delivering growth and greater has produced for that part of England a route map, efficiency and for managing investment and risk. Having Devo Max—Devo Manc. Sensibly, it understands the a governance structure that is fit for purpose and need for incremental devolution leading within a few commands public support will be essential. We will years to the full devolution of the £22.5 billion annual have to build on the structures we have, on city regions public sector spend in that area. This is where we need and, we hope, county regions and combined authorities. to be headed for all parts of England willing and able As they grow in their responsibilities, such authorities to take on greater responsibilities. will need a more secure democratic mandate. I think This is because there are two major advantages to that must mean direct elections using a system of the UK in devolution within England. First, it will proportional representation. help to drive growth, as many think tanks have In conclusion, the next step has to be a constitutional demonstrated, particularly through a better fit in skills convention to examine powers, responsibilities, capacity investment, which responds more directly to the needs building, governance, tax-raising powers and spending of employers, and in planning for housing and transport. powers for devolution within England. I hope that we Secondly, it will make public services more efficient will do that. because they will be better joined up when run at a local level. 8.09 pm We must combat the silo approach of Whitehall departments and the 50 central institutions which Lord Sanderson of Bowden (Con): My Lords, like channel public spending into England with more than my noble friend Lord Steel, I must congratulate my 1,000 funding lines. I am pleased that my own party own Scottish Borders on returning the highest no vote resolved at our Glasgow conference that it would in mainland Scotland, but there is no doubt that the introduce a devolution-enabling Bill in the new Parliament referendum has created the most divisions throughout to permit devolution on demand to councils or groups Scotland that I have ever witnessed. It will take a very of councils. long time to heal the wounds. Splits in communities During the passage of the Scotland Act 2012, the were very obvious and in many families there was UK Government set out three devolution principles. division. As the noble Lord, Lord Foulkes, said, we These were that proposals should have broad cross-party were very near the precipice. The situation was not support, should be based on evidence and should not helped by the Scottish Government’s White Paper, be to the detriment of other parts of the UK. I think parts of which were more akin to an election manifesto, those principles should apply to those parts of England when we were really dealing with the most fundamental now wishing to secure devolved powers from Westminster. constitutional change for our country. There are others. Having succeeded in that no vote, we are now faced First, on equalisation of resources, however the with producing proposals for enhancing the many detail of devo max for Scotland turns out, it will existing powers devolved to Scotland, which in the inevitably and rightly give Scotland much greater case of tax raising have never been used since inception. responsibility for tax raising. In this situation, even I have with me the report of the commission of my without the Barnett formula, tax raised and public noble friend Lord Strathclyde, published in May, and I spending would be broadly in balance if Scotland am glad to see one of its members, my noble friend keeps the corporation tax raised there. This is a very Lady Mobarik, here in her place. That report stated: important matter, not least because it establishes the “The sad fact is that, even after 15 years of devolution, it is principle of geographical ring-fencing within the UK. still far too easy for Scottish Ministers to blame difficult financial decisions on others. This is both unhealthy for the Union and Some voices in London, not least some mayoral unattractive for Scotland. Closing the fiscal gap through the candidates, are suggesting that what is good for Scotland means of fiscal devolution would create a more responsible is good for London. There is an increasing demand for Scottish politics and would help to remove this grievance culture London to keep more of the tax raised in London. from it”. This has the potential to become a very dangerous This is a major task for the Smith commission, but one trend for the rest of England and for Wales if it is not of its most important tasks. handled extremely carefully. The extended tax-raising powers must ensure that In the case of Greater Manchester, for example, the MSPs are held responsible for raising, particularly ResPublica report shows that public spending is through income tax, the requisite amount of money to £22.5 billion yet tax raised is only £17.7 billion. Devolution cover devolved expenditure. It will also allow other 1271 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1272 parts of the UK to vote on their tax and spending declare my interest. You can therefore see that my issues. This is the only way to get a sustainable solution interest in devolution is devolution to cities in England, that fits in with the wider responsibilities of the UK which is what I shall concentrate on today. Government. It means that MSPs will have to justify I was surprised by the contribution of the noble to their constituents the taxes necessary for their schemes Baroness the Leader of the House, who seemed to say and, as the report suggests, that devolution in England was okay and that we had “Scottish versions of the Personal Tax Statements should be done everything. The aftermath of the referendum in issued by HMRC, highlighting taxes under the control of the Scottish Parliament”. Scotland, as the noble Lord, Lord Shipley, said, has made people question the overcentralisation that still I hope that this can be enshrined in legislation. exists across the UK and England in particular. We On other proposals in the Strathclyde commission have seen numerous reports on devolution come out. report, I would ask the commission to make haste The noble Lord, Lord Shipley, referred to Devo Max— slowly in any changes that involve the universal credit Devo Manc, which, obviously, we are particularly pleased arrangements. It is a difficult and complex area and I with, but the other reports have shown what impact would not wish the Government to act hastily and some devolution would have. Every political party in repent at leisure. this country now seems to be espousing the idea. I do not wish to comment on the West Lothian Senior members of the Government, of both parties, question, which others have talked with great knowledge have made their contribution to that. Even the Labour about, but I believe that it has to be settled essentially Party now has a policy on devolution that I am sure by the other place. we can support, so it is an idea whose time has come. I I turn to the final recommendation of the Strathclyde was therefore surprised at what the noble Baroness, commission report, which is the creation of, Lady Stowell, said. “A Committee of all the Parliaments and Assemblies of the Of the three aspects of policy that should be devolved United Kingdom … to consider the developing role of the United to cities, the first is, clearly, economic powers, the Kingdom, its Parliaments and Assemblies and their respective second is placed-based public services and the third is powers, representation and financing”. some form of fiscal devolution. I shall not repeat what Ever since the devolution Bill was debated in this people have said about the economic powers, but, House, I have been worried about the lop-sided clearly, skills, transport and housing are key issues arrangement that was brought about as a result. Some that will make a real difference to our cities. That is said at that time that it was a slippery slope leading to particularly true of skills. When we have a Skills independence. We now know, 15 years later, how near Funding Agency based in Whitehall, trying to determine that possibility came. what new skills are needed across Greater Manchester, Nothing less than what Strathclyde proposes should well, it is no wonder that we have so many hairdressers be acceptable, as a lop-sided house inevitably will in being trained for jobs that do not exist. We need to get time crash to the ground. If we are to keep the United hold of that money and we need to be able to commission Kingdom united, whether it is a quasi-federal system it locally, working with the private sector and colleges or whatever, the matter really needs to be addressed. to make sure that we get a better deal. There is a stirring in England for progress to devolve. I have spoken in this House on a number of occasions The great northern cities are uniting under the banner on public service reform, about which I am passionate. of the City Growth Commission, headed by the very It was begun, as the noble Lord, Lord Beecham, said, capable Jim O’Neill, whose aim is to galvanise the under the Labour Government and what they called north and to start by getting its transport arrangements Total Place. There has been movement under the improved, with a lot of help, I hope, from the Treasury. current Government in the various experiments that This is all well and good, but consideration needs to be they have conducted—we were a pilot area in Greater given to all the major changes taking place in all parts Manchester for public service reform—but we have of the United Kingdom. The Strathclyde recommendation not tackled this fundamental problem of a silo-based is quite clear. The wider effects of the pending Scottish approach, where each central government department changes should not be underestimated by the rest of works on its own and does not understand the nature the UK and its institutions. of what is going on. But of one thing I am certain. In keeping the United Kingdom united, we must have the ability to We often find that it is the same individuals and the choose a Prime Minister coming from any part of the same families who need support, because they have United Kingdom. In the interests of democracy, that very complex needs. We need to understand that and is an essential part of any commission’s deliberations. stop trying to sort out the problems of those individuals in different areas with different people involved; we should look at the position as a whole. We have started 8.15 pm in Greater Manchester on a “Work Programme plus”. Lord Smith of Leigh (Lab): My Lords, this has been People have different views about the success of the a very wide-ranging debate on all aspects of devolution. Work Programme, but quite a large number of people I shall start by saying that I am not the noble Lord, were never shifted by the Work Programme because Lord Smith, who is struggling to get together by Burns they were too difficult. Using the resources of local Night the promises made before the referendum—I authorities and others, we have begun to understand am sure that he has a very difficult task—but, as my what problems individuals have in getting jobs. Is it noble friend Lord Beecham said, I am chairman of homelessness? Is it some kind of mental problem? Do the Greater Manchester Combined Authority and so they have drug issues? We ask what the issue is and 1273 Scotland: Devolution[LORDS] Scotland: Devolution 1274

[LORD SMITH OF LEIGH] The second area, which is a much more optimistic how we can support it, and then we can help them get reflection and one that shapes the rest of my contribution back into work. We need to stop dealing with failures, to today’s debate, was the discussions, interaction, as public services often do, and try to look at things listening and taking part in debates with 16 and 17 year- across the piece. olds in the referendum. It was politically reaffirming As the noble Lord, Lord Shipley, reminded the but it also struck me that as a group a majority of House, in Greater Manchester public spending is about them voted no. Many of them had their own definition £22 billion to £22.5 billion and it has been that figure of what a country and a state should look like. They for a time. We have had government austerity and the frame what they want the country to be like to give cuts. The cuts have affected Greater Manchester—public them the best opportunity for the future in this fast- services such as local authorities and the police have changing and complex world. They defined what a taken huge hits in their spending—but, because of state would be and in many respects they rejected what rises in welfare and health spending, the total has was on offer by the Scottish Government in the White remained the same. We are not going to tackle it unless Paper, which they considered remarkably old-fashioned we get control of that money altogether. We need to and in many areas incoherent. We need to challenge do that much more. We are happy to take what we the threats ahead of us as a country, which take up would regard as a risk and reward situation. We will much of our time in Parliament both here and the one tell the Government that we will make savings and where I was proud to serve when I was in the Scottish share them with it—some of the savings it can come Parliament. That is why for the year I have been in this back and some of it we will do. place I have tried to take as many opportunities as I The benefits of such a system have been shown. We can to try to shape the debate about what happens know that there will be better economic growth and it next. will be better distributed across the country. This In June this year I was fortunate enough to have a country is too reliant on London and the south-east Question for Short Debate: and we need to spread wealth across the country. That “To ask Her Majesty’s Government what plans they have for will happen. Public services will be more efficient and further reform and decentralisation of the United Kingdom in cheaper and actually deliver better outcomes for the the event of Scotland voting “no” in the independence referendum people they are meant to support. in September”. We recognise that with devolution comes responsibility. I have been in this House just a year, as I said, but I We cannot simply take it on board now. We probably served two terms in the Scottish Parliament and five have the most sophisticated government in Greater years on the Scottish Parliament’s finance committee. Manchester because we have been doing it long enough My views have been framed over that period. I was but we know we need to change. I hope on Friday I well aware very early on that in 1998 we created a will get an agreement on some very significant changes devolved legislative but we did not create a Government in Greater Manchester to take on these new responsibilities in Edinburgh that had fiscal responsibility commensurate to make sure we are accountable to Parliament and to with legislative competence. Indeed, in many respects Government. We need to do that. it is that key aspect that we are debating today. It is a Most of the changes I have suggested do not need coincidence perhaps, but a good one nevertheless, that to wait for the big constitutional convention. They do it was the plenary of the Smith commission—a different not need to wait for massive new legislation. They can Lord Smith—meeting in Edinburgh today discussing be done now. All that is required is the political will to taxation: what tax basket would be the responsibility do it. of the Scottish Parliament—addressing the very issues on which the noble Lord, Lord Lang of Monkton, and others have been challenging us. A lot of thinking 8.21 pm has been done in this area and there are lessons we can Lord Purvis of Tweed: It is a genuine pleasure to learn. There are strong, long-held principles on fiscal follow the noble Lord’s forward-looking and very federalism from other countries in the world that are practical contribution to the debate today. It was very more comparable to the United Kingdom—as my interesting to hear of the broad areas of common noble friend Lord Tyler indicated with Canada and ground between him and my noble friend Lord Shipley, Australia—than perhaps other European federal nations. pointing out some practical ways forward to noble Lords. There are long-held principles of fiscal federalism that Over the last month since the vote in the referendum we can learn from in the United Kingdom. We do not I have reflected on two main areas and they have stuck always need to listen to the Treasury briefings that say with me. The first is that for many people who voted in that everything is really difficult and the default answer the referendum the issue was less what country they is no. We need to set political leadership and then the wanted to be a citizen of and more about what kind of Treasury and others will follow. country they wanted to live in and bring up their Between being in the Scottish Parliament and in children in. It has been something that all parties that this place I wrote a series of proposals looking at these believe in the United Kingdom need to continue to areas in detail. It was a regret to me at the time that reflect on. The noble Lord, Lord Kerr, and others when I met the Conservative Party it was holding to a accurately pointed out that of those eligible to vote, line in the sand for no further powers and when I met 37% voted yes. We can use exactly the same definition the Labour Party a senior member of the party said to when we come to the rather stark figure that 47% me, “We just do not like the choreography of being on voted no. That, for me, is one of the areas where it is the same stage as the Conservatives and you Liberals”. quite telling. When I tried to propose two years ago a Glasgow 1275 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1276 agreement of common ground, common language we work through legislative consent Motions, both in and a common platform to go into the referendum the Scottish Parliament—substantially used, dare I campaign with a progressive narrative of what the say, by the SNP Government—to ensure that we can United Kingdom is and can be, there was rebuff. It is co-legislate when that is deemed the best way forward. an absolute delight that we are now in a position I will emphasise the aspects on which the party where all five parties in Scotland are around the table leaders in Wales are keen to get movement. The leader and this Parliament is seized of the positive opportunities of the Opposition, the Conservative leader, Andrew ahead of us. We may yet still have a form of Glasgow RT Davies, is very keen on having the power to determine agreement coming out of the Smith report and I our electoral arrangements and the size of the Assembly, declare an interest as chair of an all-party parliamentary subject to the use of a super-majority, a two-thirds group in this place set up on a cross-party basis trying majority, whenever those decisions are taken. as parliamentarians to forge that way forward. As I said, there is an emphasis on the need to Finally, I agree with other Members that one of the develop the legislative proposals in what we call Silk 2, ways forward is what I have proposed as a conference but also to ensure that as we get further powers, there of the new union meeting straight after the general is serious co-decision between the UK Government election. My final appeal is that this should not be an and the Welsh Government, between this Parliament opportunity to long-grass many of the issues or to and the National Assembly, whenever we consider a rediscover many of the questions. We know what we referendum, for example. That is my clear response to need to resolve. The difficult part is political parties what the noble Lord, Lord Thomas of Gresford, said. with vested interests often having to make uncomfortable We must recognise that any decisions taken on holding compromises for their own sake. We have to do it a referendum on tax-raising powers should reflect the because the figures of 37% and 47% should always views of the people of Wales, and the UK Government stay in our mind. If that is the case, we have that on should accommodate that. our shoulder but let us be optimistic and seize the It is essential that the discussions taking place opportunity that has been presented to us. between Wales and the UK Government parallel the process that is taking place in Scotland. I join colleagues 8.28 pm in saying how good it is to see the SNP Government and the Scottish Greens as part of the post-referendum Lord Elis-Thomas: My Lords, it is always a delight process. to follow the noble Lord, Lord Purvis of Tweed, in our I get a bit tired of the ideological attacks on a form devolution debates. When we go back to the later of nationalism that I certainly never espoused, which stages of the Wales Bill in the coming weeks I hope he does not belong in the 21st century. The civic nationalism will be able to find time to share his wisdom with us of the Ministers who I know in the Scottish Government as he has done before. I was particularly pleased to does not fit the description of my old friend Eric hear what he had to say about his experience in the Hobsbawm. Whatever reason he had to leave his home Scottish Parliament and his emphasis on co-operation in Croesor, in my former constituency, I am certain across parties. As I am sure Members of this House that it was not ethnic cleansing, although he seemed to and certainly the Government know well, this is think that that was the case. precisely what has been happening in the National Assembly for Wales. Only last week a resolution was As we look forward to the progress that the coalition passed unanimously by all the four parties, put down Government are leading on devolution across the United jointly by all four party leaders. The essential part of Kingdom, for which I thank them, it is an opportunity that is the emphasis on the timescale for getting draft for us to restate, in this building of all buildings, that legislation— certainly before the end of the current in our history the relationships between the nations, Westminster parliamentary Session—to implement the regions and peoples of these islands have always been further report of the commission so ably chaired by changing. The key thing is to realise that they are Paul Silk, a former clerk and chief executive of the relationships. Constitutions are made by relationships, National Assembly. not the other way around. In a sense, the process in Wales was ahead of that now taking place in Scotland; but it has also been 8.34 pm overtaken by events, in that the process in Scotland is going further. The negotiation that the party leaders Lord Horam (Con): It is probably appropriate in the in Wales are seeking jointly with the UK Government context of this debate that an Englishman should is precisely to sharpen up the proposals in the Wales follow a Welshman and a Welshman should follow a Bill. It is also important that, as powers mature in Scotsman. If only we had someone from Northern Scotland, we have devolution to the English regions—for Ireland, we would have the whole of the United Kingdom example, the north of England—alongside what is encapsulated in the Chamber in one moment. happening in Scotland, Wales and Northern Ireland. I One of the central points and problems of this speak as someone who is highly reliant on transport debate was raised by the noble Lord, Lord Birt: that starting from Manchester, whether trains or planes. 84% of the total population of the United Kingdom is In the short time available, I shall not venture into English, with 8% being Scottish, 5% being Welsh and the English question as a whole, except to emphasise 3% Northern Irish; I hope that that makes 100%. As a the point that we already have a clear statement at all result, I have always well understood the desire of the times of the territorial extent and application of all Welsh, the Scots and the Northern Irish for more our legislation. Wherever there are areas which overlap, control over their affairs, rather than the possibility of 1277 Scotland: Devolution[LORDS] Scotland: Devolution 1278

[LORD HORAM] hope, will be considered by my good friend William being swamped by England. I agree that “swamped” is Hague. Who could be better to do that than him? He is a dangerous word in the present context, but I think an excellent choice for that role. that the House appreciates what I mean. I would like that to be considered as part of the We rightly have devolution to Scotland, Wales and ongoing discussions of how we can make some sort of Northern Ireland. In those circumstances, there are sensible commitment in England to dealing with this really only two alternatives to handle it. The first is whole thing without too much of a consequence. that England puts up with it. After all, England gets a However, there is always the danger—it has been huge amount from having associated for so long in our obvious throughout—that this will unravel. Therefore, history with Scotland, Wales and, for a long time, I come to the conclusion, along with others like the Ireland as a whole, but now Northern Ireland. Whatever noble Lords, Lord Purvis and Lord Judd, who mentioned little disadvantages occur to England and English this recently, that in the final analysis some sort of voters, we should not underestimate that that is a big federal solution may well have to be considered. I do plus. Who can doubt that if Scotland had left us in the not mean now; I hope that the present work arrangements independence referendum, it would have been a massive can be made to work. It certainly has to be considered blow not only to the United Kingdom, obviously, but in a calm atmosphere, as I believe the noble Lord, also to England? Let us bear that in mind. Lord Hennessy, said. Then we could get it before a In that context, the English have been pretty good general election. Some sort of federal solution with about all this in the 15 years or so since we have had Parliaments all round, with the UK Parliament at the devolution to Scotland, Wales and Northern Ireland. top, I think is the final bulwark. That would be fair to We have rumbled a bit about the West Lothian question; everybody and would be the right way forward if we we have agitated a little about the Barnett formula; but cannot make the rest of this work. I profoundly hope it has not been a huge issue in England. We English that we can. I am in politics because I am a proud Brit, are rather mild and tolerant people. I think that George and I am proud of all parts of the United Kingdom. Orwell got it about right: we wear our patriotism We have a hugely successful history and I see no rather lightly, although it is none the less deeply felt. reason why we cannot have a hugely successful future. Therefore, the question now becomes, as we have 8.41 pm gone through the past 15 years or so with the devolution that we have had: will that attitude be sustained with Lord Soley (Lab): It is almost a year since I expressed the greater devolution that we are committed to giving the view to the noble Lord, Lord Wallace of Tankerness, to Scotland? There is no doubt or question that we in this House that we were in acute danger of losing have to deliver on that. We therefore have to consider the most successful political and economic union that whether we can, first, make the devolution proposals the world has ever seen. I was worried about that being considered by the noble Lord, Lord Smith, throughout this period, but I recently became confident work, and, secondly, whether we can make some sort that the Scottish people would throw us a lifeline; they of acknowledgement of the English problem work as did, and they did it very solidly. Not only did they well. I think that both of them could work. I see no throw out the nationalist cause of the SNP but, more reason in principle why both of those cannot be made importantly, what we need to remember now is that to work, even in the limited time available. they threw us all, the whole United Kingdom, a lifeline. We need to redesign our constitution for the 21st century. The question of income tax and other taxation has If your answer to a question now is nationalism, been raised. I do not see that as a problem of principle then you are asking yourself a question more appropriate or an economic problem. There was a very good to the 19th century. Nationalism of the sort that is article in the Financial Times the other day saying that, very common both in the SNP and in some other economically, it could quite well work with income tax groups—and would be common in England if we devolved in the way that my party has suggested to a awaken the English nationalist cause—is profoundly very full extent. dangerous. It is particularly dangerous to a successful Equally, on English votes for English laws, with its union, so my message is that we should use the opportunity EVEL acronym, I must say that I am rather a minimalist. that the Scottish people have given us to take this If the Standing Orders of the House of Commons forward. I would love to spell out how I think that could be changed without primary legislation—which should go but I do not have time. I will just say that the I always abhor where we can avoid it—that would be a first question to ask ourselves is: what do we want the way forward. Whether we do that or not, I agree with union for? There is a detailed answer to that but there the noble Lord, Lord Forsyth, on this issue, that a are a couple of simple answers. Part of it is about what better solution would be to have fewer MPs in Scotland it has given us for 300 years. It has given us political and Wales if we have more devolution. stability, political progress, economic stability, economic The House will recall the solution that we came to balance and things such as the Industrial Revolution at the time of the division of Ireland in the 1920s, and has thrown out the danger of a return to the when they went down to 12 or 13 Members of Parliament authoritarian divine right of kings. That was the positive for the UK Parliament, and, when direct rule was side. reintroduced, they went back up to 17. If we are to One message I have for the Government is, instead have MPs all treated the same—they should all be of playing around with ideas that encourage English treated in the same way, with no fancy nonsense at the nationalism, such as English votes for English regions, edges if you can possibly avoid it—that sort of solution, we need to get the message out about what the union is having fewer MPs in Scotland or Wales, should and, I for. There is some criticism that the no campaign did 1279 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1280 not put out a progressive answer about what the union We need to reconnect with people and to do so by is for. That is a fair comment, although the negative devolving power. This is a problem not just for Britain answer was essential because it was vital that the but around the world, yet Britain has been incredibly Scottish people understood that, although they could successful at doing constitutions. The German always use the pound—just as the Chinese, the Russians, constitution, which is one of the most successful in the the Americans or anyone else could do—what you world, was virtually written by Britain and there are cannot do is use the pound and then have a say in many others. We have been incredibly successful over setting the interest rates or determining the regulation 300 years of doing this but, at the moment, we are in of the financial sector or whatever. In other words, danger of losing the plot by focusing on one or two you lose independence in the 21st century unless you issues, such as English votes for English regions. We recognise that you need the integration between nation have to break out of that and recognise that we have to states. find a form of devolution that works throughout the United Kingdom, while recognising that the union is I would say to the noble Baroness who opened for important because it gives us political and economic the Government—in a way, I am sorry about that strength across the piece. speech because it focused so much on the question of English votes for English regions—that she is in I wrote to the Prime Minister shortly before the acute danger of actually aggravating the situation. It is referendum and asked him to look at having a a gift to separatists—English separatists, Welsh constitutional conference—whether we won or lost separatists, Scottish separatists and Northern Irish that referendum, incidentally. I still think that is the separatists. If she does not believe me, she can watch right road to go down. I do not mind whether it is a some of the heads nodding when I say this and when royal commission but I say to the noble Baroness, so others have said it. It plays into the hands of that she may convey it to the Prime Minister, that we separatists. If that is not a good enough reason for her, do not need simplistic political solutions at the moment. let her please get the Prime Minister to read and We need statesmanship and we look to the Prime reread the speech by the noble Lord, Lord Empey. Minister for it. At the moment, we are not getting it. When I got involved in Northern Ireland politics in the 1970s and 1980s, we looked back to what we did in 8.47 pm 1922 and saw what a disastrous mistake it was. In effect, we created a statelet which wanted to be part of Lord Stephen (LD): My Lords, I compliment the the United Kingdom, and in name it was part of the noble Lord, Lord Soley, on his insightful contribution. United Kingdom, but in fact it was something very I share his deep concern about the dangers that we different and very separate, with disastrous consequences. faced at one point of this referendum: of losing so If you go down the road of just thinking that we have much of what the union has been over the last 300 years. to have English votes for English regions, you emphasise This has been a very good debate and there have that separatism. been some very wise comments, particularly on the nature, appeal and real dangers of nationalism. We have to go down the road of devolution. I, Nationalism has the ability, in the right place and at personally, like the city regions that have come to the the right time, to whip up passion and fervour among fore from the Chancellor of the Exchequer. I think those who feel disconnected, disengaged or disfranchised. that that is a good and positive road to go down. I think that the noble Baroness, Lady Liddell, was the However, if you go down this road of English votes for first to point out that there was a very nasty edge to English regions, look at what you do for England: you this referendum campaign. I spoke in a previous debate awaken English nationalism and threaten the union. If about the treatment, for example, of JK Rowling or the Prime Minister does not understand that, he is that of the mother of a disabled child—who dared to making a truly fatal mistake. It is very important that say that she intended to vote no—by the First Minister’s we look at that. media adviser. You could see it on the streets as well. Devolution is vital not just because Alex Salmond What did it for me was seeing not the treatment of Jim and others were able to play on the idea of Westminster Murphy but rather the ugly heckling and barging of being remote. It is not just remote from parts of an elderly woman who dared to approach him, simply Scotland; it is remote from the south-west of England, to ask a question about the campaign. That is not the from the north-west of England, from the north-east sort of Scotland that I ever want to see again. of England and, at times, it has been remote from I have no doubt that if the yes vote had won, there Essex and Surrey. There is a problem about the feeling would have been a carnival of triumphalism. George of distance. Alex Salmond should not be allowed to Square and its fountains would have been occupied for get away with this either, because Shetland feels remote days. The no voters are very different. There was a sigh from Holyrood; so does Orkney, so does the north-west of huge relief across Scotland after weeks of agony of Scotland and so does the north-east of Scotland. about the outcome but no triumphalism there. Instead, One of the dangers of this, which the SNP and others there was sensible and constrained silence except, sadly, do not understand at times, is that when countries as several noble Lords such as my noble friend Lord break up they often disintegrate rather than separating Steel and the noble Lord, Lord McConnell, have into neat little blocks. Shetland has a very strong view pointed out, from the steps of No. 10 Downing Street. about this. Its inhabitants do not regard their oil as Rather than the Prime Minister’s essentially partisan Scotland’s oil; it is Shetland’s oil up there. If anybody speech which was trying to gain party advantage that goes up there and asks them, they will make it very morning, he and the other party leaders should have clear. The dangers in this are very deep. travelled to Scotland together to give substance to 1281 Scotland: Devolution[LORDS] Scotland: Devolution 1282

[LORD STEPHEN] If the referendum in Scotland leads to this—to a their pledge, show respect for the decision of the better more decentralised democracy for all of the people of Scotland and help to unite and heal. There United Kingdom—then there could be no better tribute is still time for that to be done. to those who quietly but passionately voted no. Those I have considerable confidence in the ability of the who trusted the Westminster party leaders and had noble Lord, Lord Smith, and his team to deliver a faith in something better are the people who have radical set of proposals for significant new powers on created this opportunity. It is now our responsibility both tax and policy to Scotland. It is worth pointing together, across the political divide, to deliver. The out that, for the first time, the Scottish National Party very future of our united nation depends on it. is participating in the process of delivering a stronger, more powerful Scottish Parliament. It turned its back 8.55 pm on the Scottish Constitutional Convention and the Lord Bew (CB): My Lords, the noble Baroness, Calman commission but now it is part of the Smith Lady O’Neill, has already made this point very strongly. commission, which is a good thing. I wish all members There is one respect in which the referendum result in of that commission well in their endeavours. I have Scotland has been stabilising for the rest of the United considerable confidence in their ability to deliver home Kingdom, and that is with respect to the experiment in rule for Scotland—home rule of the kind for which my Northern Ireland. There is no possible way, if Scotland noble friend Lord Tyler and I, along with many others had elected to leave the United Kingdom, it could in this Chamber, have always campaigned. have been stabilising in its implications for Northern There is a kind of federalism which is beginning to Ireland. As a strong supporter of the settlement embodied develop momentum for the rest of the UK. I have in the Belfast agreement, along with the noble Lord, heard many noble Lords, such as the noble Lord, Lord Lord Empey, who worked so hard both to see the Foulkes, talk about federalism in a passionate way, Belfast agreement pass in a referendum and also to which bodes well for future debate on this issue. However, maintain the institutions in the first few difficult years, I have considerable concern about the issue of shaping I am delighted by that really excellent outcome. the future of the rest of the UK. I do not care whether In more general terms, however, the mainstream it is a commission or a convention, frankly, or whether English political mind has had a problem for a century, it is royal or not. What I care about is that it should be which is that it tends to be too sentimental about rapid, radical and federal. devolution as the answer to problems in the United By “rapid” I do not mean that it has to be decided Kingdom. It may be absolutely necessary—and I have in the next 100 days or by Burns night, or whenever already said that I believe it is absolutely necessary for the deadline might be. Quite clearly, Scotland has to Northern Ireland, and I accept, in the context in come first and that is the vow. However, it does mean which we live, for Scotland and Wales—but nor has it getting on with it for the rest of the UK. By “radical”, worked in the way that it was expected to work and we I do not mean that I want to force a particular must face up to this. There is a reason for that, I think. solution on England; it means that giving more powers For much of the century people believed that, if only to local government in England is simply not nearly we had achieved devolution as a settlement for Ireland, enough. By federalism, moreover, I do not mean a we would have avoided all the violence and the separation single, fixed solution but more the federalism of the of Ireland from the rest of the United Kingdom, but kind emphasised by my noble friend Lord Tyler and this fine magical solution, because of short-sighted the noble and learned Lord, Lord Hope of Craighead. behaviour of some major political players, was not It is the sort of approach that can be taken in Australia, made available to us. South Africa, Canada or Spain. There are so many However, the Scottish experience of the last few examples around the modern democratic world but it years raises a major question about that. Scottish appears not to be able to be grasped here in the United nationalism, which I accept is a serious force, does not Kingdom. have anything like the deep historical roots of Irish nationalism, yet it came to the point where 45% of Lord Cormack: But there is no federation where Scots, after a sustained period of devolution, were one country within that federation has 85% of its prepared to vote for separation. Anybody, therefore, population. who thinks that had we had devolution for Ireland earlier in the century that would automatically have Lord Stephen: Exactly, which is why we must devolve switched off the separatist urge is, I think, deluded. within England; this is exactly the point that I hope to None the less, the idea is there and we think about it in come on to. We can have different approaches in a sentimental way. devolving power across England. We need a coherent Often the poor performance of the devolved regions— structure for that, but we can be very flexible inside look, for example, at the performance of Wales in that structure. Canada is a very good example. However, terms of its educational structures in international the current focus on a purely English solution—a sort tests—does not receive the attention that it should. We of English nationalism—is for me simply not good say, again and again, “Local people making local enough. I believe in devolution, not simply because decisions—it is going to work and it is going to be Scotland is a nation and is the only part of the United better”. Actually, not all the figures, if you look at the Kingdom that deserves these powers, but because educational culture of the devolved regions at any decentralising power is a good thing. It makes for level, would for example suggest that that is necessarily better decision-making. A decentralised United Kingdom the case. In this debate, many noble Lords whose would in my view be a better democracy for us all. opinions I greatly respect— 1283 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1284

Lord McConnell of Glenscorrodale: Perhaps the Party, which was furious that a Labour Government noble Lord would address this point. There is a with a majority of only five or six had to put up with feeling in Scotland that at least part of that 12 Ulster Unionist MPs and Labour MPs could not accumulation of support for independence is due to ask questions about what was going on in County increased confidence. That is partly because Scotland’s Antrim—today it is a different party that finds the performance economically today compared to the rest West Lothian question hard to endure. However, if we of the United Kingdom is significantly better than are in a position where we have to act on this matter, a when the Parliament was established. Population decline report of this sort may not have the answer but deserves has been reversed and a number of other improvements some serious consideration. in Scottish society have been made. That confidence is Above all, the characteristic of that report, as we perhaps part of the reason why people feel they can might expect from William McKay, is what the union take on the additional powers of independence. requires to survive: it is dominated by the language of civility. That is the sine qua non for the survival of the Lord Bew: I accept the noble Lord’s point, but the UK as we approach these problems. same point could be made about Irish nationalism, which also becomes more intense at certain points 9.02 pm when there is more self-confidence as a result of good Lord Forsyth of Drumlean: My Lords, it is a great economic performance. Indeed, in the period leading pleasure to follow the noble Lord, Lord Bew. The up to Ireland’s break with the United Kingdom, the great weakness in the McKay report was that it addressed First World War was a tremendous boon for Irish only the West Lothian question and not the much farmers and most people in Ireland were farmers. So I bigger one of the imbalance that arises because of the accept the point. Barnett formula. I am sure he would agree with that. On the issue of the federalist moment, which so Anyone listening to Nicola Sturgeon, who is the many have conjured up this evening, I have no intellectual sort of First Minister designate in Scotland, on the objection to it and I understand its appeal, but I just “Today”programme this morning demanding a Scottish want to express one point of scepticism. In 1910, all veto on any European referendum result could be the major parties and all the major players had a forgiven for thinking that the nationalists had not serious interest in separatism, with Winston Churchill been comprehensively defeated on a massive turnout at the heart of it. Why? Because they could see the on 18 September. Not content with one referendum Irish home rule crisis about to come and they could on Europe, she wants to have four. Alex Salmond was see the threat of civil war. They could see the danger absolutely convinced that he was going to win the that the unwritten rules of the British constitution campaign, where he used the patronage of the Scottish were going to be absolutely torn apart. Federalism was Government ruthlessly—and, by the way, is still doing the wonderful, magical way in which all these so, ringing people up and saying he is going to get contradictions could be resolved, everyone could be them because they did not support his side of the happily secured in their identity and the Irish could be argument. Intimidation reared its ugly head at every given the substance of what they wanted. If we could level, inspired by these nationalists, causing unionists not do it then, when the political class on all sides to be fearful about acknowledging their support for thought that this was the right way to go, are we likely their cause. to be able to do it now, when the pressures are nothing In the end, Alex Salmond failed because of economic like so great? It may be so, but—this is not a judgment uncertainty. His support, however, came from an on the concept of federalism; it is a judgment on just electorate, as the noble Lord, Lord McConnell, pointed what it requires to get people to move in that direction—I out, utterly disillusioned with the political system and am not sure that we are quite there at this point. still hurting from the consequences of the financial The noble Lord, Lord Forsyth, has already made crash of 2008. The nationalists, just like Mr Farage the point about the reduction of MPs in Westminster and UKIP in the south, offered hope and easy answers, from the devolved regions being the obvious solution and many hard-pressed voters thought that things to the West Lothian question. When I met the McKay could not get worse for them and they could risk commission, I made exactly the same point as the taking a chance on separation. The separatists exploited noble Lord, Lord Lexden, that this was the approach the consequences of poorly thought-out constitutional adopted with respect to Ireland. It is the obvious and change and complacency and lethargy in their opponents, logical way of approaching that question. However, as the noble Lord, Lord McFall, pointed out earlier. we are now in a situation where the McKay commission The Prime Minister allowed Alex Salmond to choose has decided to go a different way. the question, the timing and even the franchise for the I just want to say a couple of words about that referendum, despite it being the United Kingdom’s commission, because noble Lords are afraid of too constitutional responsibility. The result was that we speedy a reaction. Sir William McKay, a former Clerk had a two-year long campaign during which all the of the House of Commons who deeply respects its levers of the Scottish Government were used to advance traditions, has produced an answer to this difficulty the nationalist cause and promote a grievance culture. that does not create two fundamentally different classes The question on the ballot paper demanded a negative of MPs, which is the great danger at stake, but allows a answer to maintain the status quo. Instead of, “Should greater register of English opinion. If we are in the Scotland remain part of the United Kingdom?”, Salmond situation where the West Lothian question will not go insisted on, “Should Scotland be an independent away—currently, it is the Conservative Party that is country?”. As my noble friend Lord Cormack pointed most active on this; in the 1960s, it was the Labour out, the unionists were thus forced to campaign for a 1285 Scotland: Devolution[LORDS] Scotland: Devolution 1286

[LORD FORSYTH OF DRUMLEAN] without consulting Parliament and, we now learn, no vote while enduring attacks from Salmond that the without even consulting their party leadership in Scotland. campaign was negative. Of course campaigning for a Not since Henry VIII have we had laws enacted by negative is negative. He deliberately set it up that way. proclamation, even by such distinguished figures as He promised that this referendum would be a once- Nick Clegg, Ed Miliband and the Prime Minister. in-a-generation event. He said that because he thought There have been several references to a vow during this that he would win it. His word has proved to be debate. The statement was turned into a vow by the worthless; it turns out that he had the lifetime of a newspaper’s headline writer. It proclaimed: butterfly in mind. He resigned as First Minister in “We agree that the UK exists to ensure opportunity and defeat, leaving his left-wing successor—she is left wing—to security for all by sharing our resources equitably”— renege on the nationalist promise and refusing to rule as the noble Lord pointed out— out a further referendum. It is clear that a vote for the “across all four nations to secure the defence, prosperity and SNP is now a vote for divisive, disruptive and damaging welfare of every citizen. And because of the continuation of the neverendums. Salmond himself will almost certainly Barnett allocation for resources and the powers of the Scottish fight the general election, hoping to win a seat at Parliament to raise revenue we can state categorically that the Westminster, in the Parliament he so despises, and final say on how much is spent on the NHS will be a matter for the lead a ragbag of disruptive latter-day Parnellites. That Scottish Parliament”. is his plan. It is, of course, complete gobbledygook. The United Kingdom has been put at risk by tactical The Barnett allocation, as the noble Lord, Lord misjudgments and constitutional tinkering for political Turnbull, pointed out, gives Scotland an extra £1 per advantage. The Conservatives, Labour and the Scottish person for roughly every £5 spent in the rest of the UK nationalists have all been opposed to the creation of a and is not based on need. A commitment, such as in Scottish Parliament in my lifetime. They have changed this so-called vow, to share resources equitably would their positions for reasons of political expediency mean ending Barnett and would leave an enormous rather than principle and have sought to amend the black hole in Scotland’s block grant. We have just won constitutional position to suit themselves. Alex Salmond the argument in the referendum campaign that even if was opposed to devolution and the creation of a Scotland had all tax revenues she would be utterly Scottish Parliament with limited powers but changed dependent on the oil price or very much higher taxes his mind when he decided that it could be a Trojan just to maintain the status quo. Similarly, Barnett horse to destroy the United Kingdom. Sadly, my Labour gives Scotland roughly 10% of any increases in expenditure opponent is not in his place. As a friend, I have great decided at Westminster, and any allocation in respect respect for the noble Lord, Lord Robertson of Port of the NHS will be determined there, not in Scotland. Ellen. When I was Secretary of State, he was my When water was privatised in England, the block shadow. He predicted that devolution would kill grant was reduced and the funds required to maintain nationalism stone dead. Labour thought that it would it in public ownership came from the allocations to enable the left to keep the Conservatives out of power other services. in Scotland and that they could devise a complex These promised new powers and the funding voting system which would ensure that no one party arrangements are not thought through; nor are the could dominate the Scottish Parliament. They adopted consequences for the rest of the United Kingdom the language of nationalism, branding the Conservatives which had no say in the referendum. The reason given as anti-Scottish, arguing that the Conservatives had for having no devo-max question was that it was a no mandate to govern in Scotland and denouncing matter for the UK as a whole while independence was our policies as Anglicisation. Even today, Labour for Scotland to decide. With a general election due MSPs have not learnt the foolishness of their actions next May, the necessary legislation cannot be put because I see them in the newspapers contemptuously through Parliament and there is no time to find an referring to their Scottish colleagues as Westminster agreed solution which will bind the United Kingdom Labour. together and ensure fairness for each of its constituent In 2011 the nationalists won an “impossible” overall four nations. Once again, political expediency is playing majority in the Scottish Parliament with 69 seats on a its part in handing the game over to the separatists. manifesto that pledged an illegal referendum on The way forward must command support in every independence. So much for devolution killing nationalism corner of the United Kingdom. The fact that 45% of stone dead. Westminster had no choice but to grant it, the voters in Scotland on a turnout of 85% were but had delayed grasping the issue for too long. Gordon prepared to abandon Britain cannot be ignored or Brown as Prime Minister crushed a proposal to hold a fixed by more asymmetric devolution. Nor can the referendum in 2008 from the Labour leader in the remedy be left in the hands of political parties. A Scottish Parliament, Wendy Alexander. constitutional convention drawn from Scotland, In the final few days of the referendum campaign, England, Wales and Northern Ireland and involving after many people, including me, had already voted by central, devolved and local government as well as post, an opinion poll which had eliminated the “don’t civic society could address the issue of funding, the knows”—who turned out to be the “no but won’t role of the Westminster Parliament, regional issues says”—put the separatists in the lead. The three unionist and the central purpose and benefits of a United party leaders panicked and published a joint statement— Kingdom. This is not just a matter for Scotland but not a vow—in an exclusive for a tabloid newspaper, one for the British people as a whole if the United pledging more undefined powers to the Scottish Kingdom is to be secured on sound foundations for Parliament. This was done by three privy counsellors the next 300 years. 1287 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1288

9.12 pm who had voted for them explicitly—but because they did not fit well with the very narrow party aims of the Lord Elder (Lab): My Lords, moving as we are SNP. towards the end of a long debate, I start by wishing the noble Lord, Lord Smith of Kelvin, well and his fellow I hope the day will come when the debate in Scotland committee members the best of luck. I say that as is not about more powers alone, but that we will move someone who spent eight years, I think, on the Scottish on to the vastly more important point of what is to be Constitutional Convention, most of them on its Executive, done with the powers that are there. For goodness’ who was in the Scottish Office at the time of the White sake, let us get back to the business of health and Paper and Bill and who, more recently, was on the education policy, the power of local government, and Calman commission, so I kind of know the course. all the rest. That is what is now needed. I want to make a couple of general points. First, I suggest very strongly that we take care with the language 9.17 pm we use in discussing further devolution. In the years Lord McAvoy (Lab): My Lords, this has been a running up to 1997, when we were talking about powerful debate, with some very powerful speeches devolution we said that everything was reserved and made by some very powerful speakers. It would take then published a long—an increasingly long—list of me too long to go through every single one of them things that were to be devolved. That was reversed in but particular mention must be made of the former the 1998 Act, which says that everything is devolved Secretaries of State for Scotland, my noble friend except a much shorter list of central powers that are to Lady Liddell of Coatdyke and the noble Lord, Lord be reserved. The issue is not just what powers we need Forsyth of Drumlean, as well as of the noble Lord, to devolve—I am, of course, prepared to look at Lord Lang of Monkton. further powers to be devolved—but what powers we need to retain if the union, which was backed in the I share the view of a number of noble Lords that referendum by a substantial majority, is to be upheld. the most dangerous time was not before the referendum. The SNP will always want more powers. We should be I believe that the most dangerous time is now. If we do more careful, as was Scotland in the referendum vote. not handle this collectively, if we do not handle it properly in a collegiate way, it will lead to an inevitable Some of the more extreme suggestions—devolving separation and a separate Scotland. The word all income tax, VAT, social security—look to be ending “Westminster” has become an epithet—an insult. This the union by the back door. If all that is left is defence has been contributed to by Mr Farage and by and foreign affairs, and perhaps a residual and declining Mr Salmond. There is a disengagement between the Barnett formula, then the Scottish people will feel that so-called establishment parties and the public. The they have got rather less than they expected. The SNP noble Lord, Lord McConnell of Glenscorrodale, of course wants to become a member of NATO, a mentioned this disengagement in the context of nuclear-backed alliance, though it does not want to Westminster and the Scottish Parliament. The paradox have anything to do with nuclear weapons. The fear is is that, in Scotland, more people turn out for Westminster that, if we end up with this further great swathe of elections than they do for Scottish Parliament elections, economic powers being devolved in some way, the so there is a quandary there. majority in the referendum will feel hugely and rightly let down. More powers are guaranteed for Scotland within the agreement. Although a lot of people do not like There has always been a school of thought in this or that power promised in the vow, as it has come Scotland that you could stifle independence by granting to be known, if we do not deliver on it, we are more powers to the Scottish Parliament. That has guaranteed trouble. More powers for Scotland are always seemed to me to be flawed. If you argue for guaranteed, regardless of what the SNP says. more powers in all circumstances, then you are actually We guaranteed these collectively during the referendum arguing for independence, but with a slightly longer campaign and we must deliver on that. My party has timetable—and that is not what Scotland voted for. always led on devolution and we will engage with the Secondly, I note the very tight timetable that is Smith commission in a spirit of openness and partnership being followed by the new Commission. I wonder with the other political parties. As has been mentioned, whether we might be in a better position if the same it is a good thing for the Scottish National Party to be degree of urgency had been shown about the introduction involved in that. of the Calman proposals, particularly those about tax. There are a couple of things that I have been I declare an interest both as a member of the Calman confused about all night. There have been constant commission and as someone who had a heavy hand in attacks on the Barnett formula, and it has been stated these tax proposals. by some very knowledgeable people that it is not based The commission reported in June 2009 and I believe on need. Since I came into politics, although I have that the tax changes are going to be introduced in not studied the Barnett formula—I would not want to 2016-17. These are substantial powers, and I should be up all night—I have always been told that it is based have liked to have seen how they might have changed on need, and in Scotland’s case that it is based partly the argument, had they been introduced rather more on the geographical nature and the large physical area quickly. It is after all one of the ironies of devolution of Scotland. There is a new gospel out, but I certainly to Scotland that the income tax powers in the Scotland believed that that was part of the calculation, along Act, backed by the people of Scotland in a separate with the lower incomes in Scotland and social factors. referendum question, were allowed to lapse, not because The Barnett formula has been a great boon to Scotland, they were not in the interests of the people of Scotland— because it shares the resources of the United Kingdom 1289 Scotland: Devolution[LORDS] Scotland: Devolution 1290

[LORD MCAVOY] that will allow him the stamina to take part in debates with a poorer part of the country. However, I accept that go on for the best part of six hours. He summed that there is concern about the democratic deficit, and up a recurring theme of our debate when he talked I think that there is merit in that. I am not a mathematician about the disconnect between politicians and voters but, surely, if the Scottish Parliament collects more of that needed to be reduced. He entertained us and he its own spending, there is a hope that the Barnett informed us, and I know that the House looks forward formula—but before I can finish, the gloom and doom very much to his contributions to your Lordships’ merchant from Drumlean is shaking his head at me. House in the future. He is starting to intimidate me. In the fullness of time, As noble Lords will have heard, the issues considered I hope that the Barnett formula can be a less important in this debate fall into three broad categories. The first consideration in the overall look, especially in financial relates to Scotland and the fulfilment of the joint matters. committee by the three party leaders to deliver more powers to the Scottish Parliament in light of the Lord Thomas of Gresford: The Barnett formula referendum no vote. The second category of issues quite simply, as far as Wales is concerned, is a relates to how to ensure that power is properly devolved multiplication of departmental spending from the and decentralised to all the nations, communities and departments devolved to Wales by the population, individuals who comprise all parts of our United which is 5.3% of the United Kingdom. That is where Kingdom. The third, separately but rightly—not as an the money comes from; it has nothing at all to do with alternative to devolution within England—considers need. how we might address the so-called West Lothian question, which has come about as a consequence of Lord McAvoy: As I said, if you started to debate the devolving power to specific parts of the United Kingdom. ins and outs of the Barnett formula, we would be here a long time. I am being honest in telling your Lordships’ I will address first the issue of the referendum in House that my understanding of the formula since I Scotland. It was legal and fair in its conduct and came into politics was always that it was based on need. decisive in its outcome. It is important that we reflect on the points made by a number of noble Lords, I want to address the serious question of EVEL. If including the noble Baroness, Lady Liddell and the we get to the stage that there are two classes of noble Lord, Lord Birt, who highlighted the appalling Members of Parliament, it will come across as trying treatment of Nick Robinson in a country which ought to take party advantage of a situation. The noble to take pride in the freedom of the press and of the Lord, Lord Bew, mentioned the Northern Ireland media. My noble friends Lord Stephen and Lord situation. I do not recall the Labour Party in my time Forsyth also highlighted some of the many real problems in the House of Commons making too much of the that were encountered during the referendum. We fact that there were Ulster Unionist MPs who more or should not lose sight of these when we think of what less voted with the Conservatives, because my party kind of Scotland we want to see in the future. and I took the view that that anomaly was worth carrying for the sake of the United Kingdom. I do not Some noble Lords questioned the fact that the recall the noble Lords, Lord Forsyth of Drumlean or Scottish Parliament devised the referendum. It was Lord Blencathra, or other Conservative Peers, mentioning important that the referendum was, as it were, made in the injustice of that situation all those years ago. So Scotland. In its immediate aftermath, we heard today they seem to be a bit picky about it. There is a danger of the conspiracy theories that counters at polling that that sort of seemingly political calculation by the stations were filling in blank ballot papers. If the Conservative Party could ruin its approach to the referendum had been devised at Westminster, the view Smith commission. that it was all a trick and a conspiracy would still be My party supports a royal commission and a echoing loud and clear. The referendum was devised constitutional convention, because it is clear that we by the Scottish Government—they had everything have to establish a mode of operation through the going for it, and they lost. That is what makes the entire United Kingdom that will be settled, will last result decisive. and endure and will be of value to all the people of the The people of Scotland expect that the interests of United Kingdom. 100% of Scotland within the United Kingdom are taken forward. No one is under any illusion that a no 9.23 pm vote was a vote for the status quo or that, somehow or The Advocate-General for Scotland (Lord Wallace of other, we are out of the woods. As the noble Lord, Tankerness) (LD): My Lords, the House has heard a Lord Hennessy, said—I think he spoke for many of us, very important and comprehensive range of contributions myself included—our relief has been suffused with on complex and interlinked constitutional issues. I am anxiety. As the noble Lord said, we are all seeking to pleased that we have had the opportunity to hear such achieve a strong and lasting settlement across the a range of views and perspectives from all parts of our United Kingdom. United Kingdom; it has been very important to hear That is what we intend to do. The vow made by the views not just from Scotland but from England, north Prime Minister, the Deputy Prime Minister and the and south, as well as from Wales and Northern Ireland. leader of the Opposition has already been put into I was delighted to hear the contribution of the practice. My noble friend Lord Selkirk of Douglas noble Lord, Lord Lennie, in his maiden speech. I sought the reassurance that that would be adhered to. understand that he is not only a Newcastle United fan Even those who contributed to your Lordships’ debate, but a participant in the Great North Run. No doubt who were sceptical about the commitments made, 1291 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1292 nevertheless all agreed that it was essential that that timetable but that is because the demand is there, in promise is honoured. It has been honoured. The Scotland, to see change delivered, and it is a demand Command Paper setting out the parties’ positions was that we intend to meet. due by the end of October. In fact, it was published Scotland will have further powers but we believe two weeks ago. It is continuing to be honoured with that that must be within the context of Scotland being the work of the Smith commission. It will be honoured a part of the United Kingdom. It must not start to because we have undertaken that the heads of agreement, unravel the fabric that binds us together, because that which we look forward to the noble Lord, Lord Smith would be a denial of the outcome of the referendum. of Kelvin, announcing, will be taken forward with However, I very much share the view expressed by the clauses by Burns Night. noble Lords, Lord McConnell and Lord Elder, that Equally, the Scottish National Party should remember the exercise of these powers is vital to the whole range the statements it made ahead of the referendum that it of devolved responsibilities. It would be very refreshing expected it to be a once-in-a generation or once-in-a to get the political debate back on to how we improve lifetime event. Nicola Sturgeon, whom I congratulate education, health, transport, agriculture, sport and on becoming, as she will become, the First Minister of local government in Scotland. Scotland, said one year ahead of the referendum— Not surprisingly, the question of funding was raised. 18 September 2013—that this was a once-in-a lifetime I certainly take the point made by the noble Lord, opportunity for Scotland. If our parties are expected Lord Empey, who referred to the “ATM approach”—a to honour commitments, the least we can expect is point reiterated by the noble Lord, Lord Kerr of that the Scottish National Party will honour its Kinlochard—where there has been spending by the commitment to the people of Scotland that this is for Scottish Parliament without responsibility for raising once in a generation. the funding. Indeed, my noble friend Lord Purvis of The commission chaired by the noble Lord, Lord Tweed highlighted that fiscal responsibility gap. One Smith of Kelvin, was up and running on 19 September. of the objects of those who served on the Calman His terms of reference make it clear that the commission—as I did, along with my noble friend recommendations will deliver more financial, welfare Lord Selkirk of Douglas, and the noble Lord, Lord and taxation powers, strengthening the Scottish Parliament Elder—was to address that and to ensure that there within the United Kingdom. Last week, he convened was greater accountability for spending. Therefore, the first meeting of cross-party talks to reach agreement with the additional tax powers come additional on proposals for further devolution. All 10 nominees responsibility and accountability. from each of the represented political parties attended. We have been clear as a Government that the act of The noble Lord has said that they have, devolution in and of itself should not result in a “committed to work together to achieve a positive outcome to change in the budget, but it is important to note that this process”. this is also one of the key principles highlighted by the The noble Lords, Lord McConnell and Lord Foulkes, Smith commission. However, we have been equally emphasised the importance of this being, as it were, a clear—this addresses a point raised by my noble friend principles-based approach rather than a horse-trading Lord MacGregor of Pulham Market—that if decisions approach. I believe that that is what the noble Lord, are taken by the Scottish Government which result in Lord Smith, indicated after that first meeting. The a lower tax yield than the current arrangements, the parties have agreed a set of principles which include, Scottish Government will have to take spending decisions but are by no means limited to, forming a substantial in line with that reduced tax yield. The noble Lord, and cohesive package of powers, enabling the delivery Lord Kerr, will put me right on this but I think that the of outcomes that are meaningful to the people of Azores judgment means that where tax is fully devolved Scotland, and strengthening the Scottish devolution and there is a shortfall, it cannot be topped up. settlement and the Scottish Parliament within the The noble Lords, Lord Blencathra and Lord McAvoy, United Kingdom, including the Parliament’s levels of made the point that, as more tax-raising powers are financial accountability. The noble Baroness the Leader devolved, the amount of money transferred to Scotland of the Opposition, as well as the noble and learned under the Barnett formula will decline. Lord, Lord Hope of Craighead, and my noble friend Lord Glasgow, sought an express assurance that that Lord Forsyth of Drumlean: Can my noble friend would be within the context of the United Kingdom just deal with the point in the so-called vow where it honouring the outcome of the referendum. There is says that our resources will be shared, also a principle that it will not cause detriment to the “equitably across all four nations”? United Kingdom as a whole nor to any of its constituent How is that consistent with keeping Barnett? Can he parts. also deal with the notion that, by giving the Scottish However, this process is not just about the parties. Parliament more tax-raising powers, Barnett can be The referendum saw an opening up of civic engagement, phased out? If the tax base in Scotland is lower than and the noble Lord, Lord Smith, has made it clear the uplift in the Barnett formula, compared to the that he wants to hear from all the various groups to average for the United Kingdom, how will that gap be ensure that the recommendations that he produces are filled? informed by views from right across Scottish society. By St Andrew’s Day, he intends to publish heads of Lord Wallace of Tankerness: My Lords, an important agreement. As I have indicated, the Government are issue which was always there but was articulated well, committed to turning these recommendations into not least by the former Prime Minister Mr Gordon draft clauses by Burns Night 2015. It is a demanding Brown, in the latter stages, was the notion of the social 1293 Scotland: Devolution[LORDS] Scotland: Devolution 1294

[LORD WALLACE OF TANKERNESS] which has been mentioned by a number of noble union; the equitable arrangement within our United Lords who have contributed to the debate, are clear Kingdom where, if one part of the kingdom is thriving, examples of our commitment to empowering local there is a transfer of resources to a part that is not leaders to take decisions which best fit local circumstances doing so well. That is one of the important things that and needs. binds our United Kingdom together and I see that as That is a demonstration of open-mindedness about an equitable distribution of resources within it. how more powers might be devolved. We certainly do not believe that power should be hoarded at the centre Lord Turnbull: I query why a country which claims but that it should be devolved to the nations, communities to be more prosperous than the United Kingdom as a and individuals that will benefit from it. I was struck, whole is the recipient of the highest transfer compared in the course of our debate, by the very important with Wales, which is the poorest part but receives a contributions from those with a rich experience in much lower transfer. That cannot be equitable. local government: the noble Lords, Lord Smith of Leigh and Lord Beecham, and my noble friends Lord Lord Wallace of Tankerness: The noble Lord, Lord Shipley and Lord Tope. They shared very constructive Turnbull, quoted very accurately the words used in the ideas with your Lordships’ House as to how we might statement in the Daily Record. As I indicated to my improve existing arrangements, what new ones might noble friend Lord Forsyth, with all his success in be made and how powers might be used more getting more money, it is the base line that is applied. imaginatively in our communities, our cities and those With regard to Wales, it is understood and recognised— parts of the country which are not immediately connected with a major city. That is clearly an agenda which Lord Purvis of Tweed: If the Minister will give way I must be pursued as we go forward examining a whole will, for the information of the House, quote from the range of constitutional issues. public expenditure statistical analysis by the Treasury in 2013 which shows that in 2008-09 the DEL resource With regard to other devolution of power within grant, which may well be considered the transfer, was England, my noble friend Lord Dobbs referred to 7.7% of all of the grants for that year. The plans for Walter Scott about the path to the Highlands and the 2015-16 are 7.96%, which is below the population danger for an Englishman. Treading into devolution share for Scotland. The point has been made about for England by a Scotsman is almost as dangerous. I how you would balance that grant with the further tax always tread very carefully indeed. From what was powers. This is the work of the fiscal federalism principles said this evening, it is very clear that this is something of looking over a 10-year profile over economic cycles which should be addressed. As I indicated earlier, this to make sure it is a balanced and fair proposal. The is not an alternative to the so-called EVEL; it is a Strathclyde commission did it; the Liberal Democrat both/and rather than an either/or. commission did it. There is work being done to inform As my noble friend Lord Greaves, the northern this quite considerably. home-ruler, said, there is no consensus in England as to where we might go. There must be an opportunity Lord Wallace of Tankerness: My Lords, with respect for further debate. The noble Lord, Lord Prescott, to my noble friend who I know has studied it in great made a very clear case for greater devolution within detail, I hesitate before going down the line of a England. He said that the regions of England had to 10-year fiscal federalism profile. I was about to answer be consulted as to where they might go. There are the point made by the noble and learned Lord, Lord proponents of regional government throughout England. Hope of Craighead, and the noble Baroness, Lady There are difficult issues over the possibility of the O’Neill, with regard to the Supreme Court. The Scottish creation of extra layers of government. There have National Party has made a specific proposal. It would been advocates of a separate English Parliament, although be wrong to second guess the Smith commission, but that raises questions over location and composition, on the noble and learned Lord’s point about the role and whether it would be any more decentralised than of the Supreme Court, if you have got a single market the present arrangements. While in Scotland there was you should have a common set of principles and legal a settled role of the Scottish Parliament, the picture in interpretation. This is very important and, as he will England is less clear. My noble friend Lord Tyler be well aware, both my own department and the indicated that my own party advocates provisions of Scottish Government established working groups during flexible and responsive devolution on demand. There the passage of the Scotland Act 2012 to look at the is a wider debate to be had. My noble friend Lord role of the Supreme Court with regard to devolution Shipley set out a strong, healthy agenda for such a issues. These are now compatibility issues and I hope debate. that the Smith commission will have regard to that work, as both working groups reached very similar conclusions. I hope that gives some reassurance to the Lord Blencathra: The latest polls show that 78% of noble Lord. people in England favour English votes for English laws. That seems fairly like consensus to me. The commitment to deliver further powers for Scotland is of course in keeping with this Government’s record in decentralising power. As my noble friend the Leader Lord Wallace of Tankerness: I was coming on to the of the House has indicated, this Government have question of English votes for English laws. I do not made huge progress in devolving both responsibility believe that English votes for English laws is an answer and funding schemes to a local level. Local enterprise to the whole question of devolution within England; I partnerships and the ambitious city deals programme, think that that point is accepted. As my noble friend 1295 Scotland: Devolution[29 OCTOBER 2014] Scotland: Devolution 1296

Lord Tope said, it is not a question of if—it must be a Baroness Royall of Blaisdon: On the EVEL issue, is question of how. Moving on to the point raised by the the noble and learned Lord content—I do not wish to noble Lord, Lord Blencathra, and numerous contributors try to put fissures in the coalition—that the committee to the debate with regard to English votes for English that has been set up by Mr William Hague, of which laws, I was going to say, “Over the last few weeks,” but the noble Baroness is a member, is a committee of my noble friend Lord Macgregor reminded us that the people from Westminster behind closed doors looking issue was live when he entered the House of Commons for a quick-fix solution? Is the noble and learned Lord in 1974 and my noble friend Lord Lexden reminded us himself content with that as a way forward? that it was live when Mr Gladstone and Joseph Chamberlain were in the House of Commons. This Lord Wallace of Tankerness: My Lords, my experience matter has generated debate and questions for well is that Cabinet committees tend to be that. They are over a century. The welcome transfer of powers to Cabinet committees. However, as we have experienced Scotland, Wales, Northern Ireland and the London in this debate, the debate is not confined to those Assembly, and the prospect of further devolution have members of the committee. It would be very helpful if created not just an anomaly but a complex one. The there were contributions from not just the two coalition asymmetric devolution of powers to these bodies makes parties, which, as the noble Baroness points out, are the issue of which MPs’ constituents are affected by not entirely at one in this, as the article by my right which laws a highly varied one. It is not a simple honourable friend David Laws has shown. It would be question with an easy answer, but we nevertheless very healthy if we had views, not only from the other should seek an answer, as my noble friend Lord Macgregor political parties but others as well. said. It is a question of fairness. Each of the three main UK parties in the United Kingdom Parliament has expressed its views on the Lord Cormack: I am extremely grateful to my noble West Lothian question. This House has considered and learned friend. A variety of views on English laws the issue. We have had the views of the McKay have been expressed in the debate. But surely one commission and reports such that of the democracy message has come through very clearly: people do not taskforce. My right honourable friend David Laws has want to rush this. Many people who have made this noted that a grand committee should be appointed point have also said that this is an appropriate subject proportionately to vet laws that will apply only in for a commission or a convention. England, joined by Welsh MPs when matters affecting Wales are debated. Lord Wallace of Tankerness: My Lords, we are not The noble Lord, Lord Elis-Thomas, mentioned that just going to park it. I was coming on to the very point Bills have a territorial extent. I know that my own that my noble friend makes about the convention. I Office of the Advocate General looks at all Bills with have a whole list here—I am not going to read it regard to whether legislative consent Motions will be out—of noble Lords who have talked about a required in Scotland. It can be complex. The Marine convention—that constitutional change should be and Coastal Access Bill in which I took part is an achieved through a convention. I make it clear that the example that was referred to by my noble friend Lord Government will consider proposals for the establishment Greaves. Although my noble friend Lord Blencathra of such a convention because, while debate is needed said that it could be relatively easy, I remember when in both Houses, it is important that we engage with the the legislation was going through the House of Commons public as well. We should not simply be continuing our with regard to the increase of tuition fees under the constitution behind closed doors, if that is what the Labour Government. When that passed, I was the noble Baroness the Leader of the Opposition was Minister with responsibility for higher education in suggesting. We must listen to other people’s views and Scotland and I knew full well that that had far-reaching opinions on this. The noble Baroness, Lady Quin, and consequences for Scotland, which led to the Further my noble friend Lord Thomas of Gresford said it and Higher Education (Scotland) Act 2005. It is not should not be a top-down approach. Many of us always easy. This matter deserves careful consideration. would accept that view.

Lord Foulkes of Cumnock: The noble and learned Baroness Royall of Blaisdon: My Lords, I know that Lord is absolutely right. Will he deal with the point the noble and learned Lord wishes to finish, but, that that I raised that, for more than 300 years, until 1999, being the case, that the Government are open to all Scottish legislation—on education, on health and having a constitutional convention, which is extremely on the legal system—was dealt with by this Parliament welcome, why is it that they are bent on taking a by a majority of English, Welsh and Northern Irish decision on EVEL before the general election and Members? before a constitutional convention has been set up? Lord Wallace of Tankerness: The noble Lord is right. That was one of the reasons we established the Lord Wallace of Tankerness: A view has to be taken Scottish Parliament. It is a matter which I think ought on some issues. My noble friend Lord Maclennan has to be addressed—and far better that it be addressed been an advocate of a constitutional convention probably where there is cross-party working and consensus-forming. longer than anyone else I can recall. He was perhaps That was the basis on which we established the devolved suggesting that the proposals that might emanate from Administrations, and I do hope we can work on a the Smith commission should go to a constitutional cross-party basis to address this important issue as convention. I believe there are some things which well. cannot wait and to try to do that would give rise to 1297 Scotland: Devolution[LORDS] Scotland: Devolution 1298

[LORD WALLACE OF TANKERNESS] our strong internal trade links, we create jobs across allegations of bad faith. We have heard in our debate a the United Kingdom. Together, we make our savings whole range of issues which a constitutional convention and our pensions more secure. These are valuable should raise. My noble friend Lord Steel talked about things. They should perhaps have been said better and the role of the second Chamber. Should it be a second more often during the campaign, but I think that they Chamber that reflects the different regions and nations did actually get through. We must remember that the of the United Kingdom? The noble Baroness herself people of Scotland at the end of the day voted to mentioned votes at 16, which would be an important remain together in the United Kingdom. It is important constitutional change, one which, again, I think is ripe that we engage not only the people of Scotland as we for debate. It is important that we respond to the go forward but that we recognise that the referendum suggestions and concerns raised. Our structures need campaign threw up some important issues, not least to be responsive to that. the disconnect that so often exists between the people In conclusion, the United Kingdom is the strongest and those in power. That is an important issue that has family of nations the world has ever seen. My noble to be addressed. friend Lord Thomas reminded us of what Mr. Gladstone I am sure that we agree that we should try to do this said—that home rule must be in the heart as well as in with the maximum degree of consensus. Perhaps the the law. Many of us feel that it is something that is in watchword for us all is to deliver a strong and lasting our DNA and in our hearts. Together we have made solution for all the United Kingdom. remarkable discoveries and inventions, delivered changes that have improved the lives of citizens not just in the Motion agreed. United Kingdom but globally. Together we have one of the most stable currencies in the world. Through House adjourned at 9.50 pm. GC 441 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 442

The first commitment was made in Magna Carta. It Grand Committee required one measure for wine, corn and cloth throughout the realm, and similarly for weights. This was to stop Wednesday, 29 October 2014. consumers being ripped off. Since then, progress has been rather slow. Four and half centuries later, in 1668, Bishop John Wilkins proposed a universal decimal Consumer Rights Bill system of measurement in England. Similar proposals Committee (6th Day) were made from time to time but mostly came to nothing. I will refer to only a few of them. Skipping 3.45 pm two centuries, in 1895, the Commons Select Committee recommended that the metric system should become Relevant documents: 3rd and 8th Reports from the compulsory after two years and be taught in elementary Delegated Powers Committee schools. In 1904, the House of Lords voted for a compulsory change to a metric system but the Bill Amendment 55 failed in the Commons. Yet 1971 was a star year when we changed to a Moved by Lord Taverne decimal currency—a major operation that I remember 55: After Clause 60, insert the following new Clause— well because I was Financial Secretary in 1970, when “Product description and advertisement Roy Jenkins was Chancellor. I was involved in preparations (1) Subject to subsection (2), where any specification, for the change, which many prophesised would cause description or advertisement of goods, services or land or chaos. It went through very smoothly. The following property offered for sale, hire or lease, or any instructions or year, a Conservative Government produced a White maintenance manual relating to such goods or services includes Paper that recommended a gradual but not compulsory one or more units of measurement, those units shall be— change to metrication. A Metrication Board was set (a) those set out in Schedule 1 to the Units of Measurement up then, but a few years later it was abolished—perhaps Regulations 1986 (as amended); or because, more recently, metrication has become associated (b) any multiples or submultiples of those units as set out in with Brussels. Most Commonwealth countries have Schedule 2 of those Regulations. adopted metrication. That is nothing to do with a (2) Subsection (1) shall not apply to products listed in Brussels agenda but because it is much simpler and Schedule (Product description and advertisement). more commercially convenient. That is also why British (3) Subject to subsection (4), supplementary indications may schoolchildren are taught the metric system. be used in addition to the units authorised in subsection (1). However, we still allow two separate systems to (4) Where supplementary indications are used— exist side by side in a number of commercial transactions. (a) in the case of a conflict between an indication of My amendments seek to dispel the confusion that this quantity expressed in an authorised unit and a supplementary indication, the authorised unit shall can cause. They bring product description and advertising prevail; and in line with the rules for package labelling and for the (b) the authorised unit shall appear first, and any characters sale of loose goods from bulk. At present, package employed in the marking of quantity in relation to a labels must give the metric quantity with the option of supplementary indication shall be no larger and no more a supplementary indication in imperial measurements—for prominent than those employed in the marking of example, “568 millilitres, equal to 1 pint”. Pricing of quantity expressed in the authorised unit. goods must be by metric quantity—for example, (5) In this section— “tomatoes at £2.50 per kilogram”, with the option of (a) an “authorised unit” means a unit of measurement a supplementary indication of “£1.14 per pound”. specified in Schedule 1 to the Units of Measurement However, these rules do not apply to product Regulations 1986 (as amended) or any multiples or submultiples of those units as set out in Schedule 2 to descriptions and advertising, which can prove thoroughly those Regulations, confusing for purchasers. A carpet can be described as (b) a “supplementary indication” means one or more measuring “eight feet six inches by 16 feet three inches”, indications of quantity expressed in a unit of with no indication of metric measurements. We also measurement, other than an authorised unit, which is have the absurd situation that manufacturers and retailers used in conjunction with an indication of quantity often use incompatible units even for products displayed expressed in an authorised unit, side by side. For example, a consumer may have to (c) “unit of measurement” does not include arbitrary sizes compare a fridge of six cubic feet with a fridge of such as sizes of shoes or clothing, paper and stationery 200 litres. In property advertisements, some estate or eggs, agents describe room sizes in feet, inches and square (d) a “year” is not to be treated as a unit of measurement.” feet, while others use metres and square metres. Therefore, we need a minimum common standard that all Lord Taverne (LD): My Lords, I apologise for not manufacturers, traders, advertisers and estate agents having taken part in the discussions on this very must follow. Since the law already requires that goods welcome Bill but my special concern is with the particular and services must be priced per metric unit, with the and rather unfashionable subject of metrication. The option of an imperial equivalent, it is sensible that the Bill offers an opportunity to clear up some anomalies minimum standard for product description and in the law as it stands that can only confuse consumers advertisement should also be in metric units. and also to promote some modest steps towards a Subsection (1) of my proposed new clause indicates simpler and more rational system of measurements the scope of the clause to achieve this aim, but allows that has been promised for many centuries. for certain exemptions. It requires the same units as GC 443 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 444

[LORD TAVERNE] Lord Harris of Haringey (Lab): My Lords, the are already required for the pricing of goods and noble Lord, Lord Taverne, raised some interesting services—namely those listed in the United Kingdom’s issues. However, I am slightly disappointed that he did Units of Measurement Regulations 1986. However, in not attempt to sort out some other problems at the order to help older people who are still uncomfortable same time, as a number of issues such as product with metric units, and to avoid cases of so-called descriptions and advertisements of the size or quantity “metric martyrs”, the new clause permits the use of of goods, particularly food products, could usefully be supplementary indications using the exact wording addressed in this amendment. If he gets the traditional from the Units of Measurement Regulations and the rebuff that Members of the Committee expect from price marking order. Also included are a number of the Minister, he might want to consider including minor exemptions, such as car tyres, where it would those issues as additional items when he brings the not be practical to require them to be relabelled. There amendment back on Report. may need to be other exemptions, so the new clause Ihavenoticedatendencyforsupermarketstosurreptitiously gives discretion to the Secretary of State to amend the change the size of products, usually food products but list. also others, as a means of covertly increasing the price, Subsection (2) exempts the cases listed in the proposed so things which were previously sold at 140 grams new schedule. I will explain the reasons for the exemptions weight are now sold at 120 grams weight. Conveniently, when I come to the new schedule. Subsections (3) and the label moves from the front of the packaging to (4) permit the use of supplementary indications—that somewhere at the back, often to a place where it is is, imperial equivalents—while making it clear that the difficult to read. These are all issues that could usefully metric unit is primary and must not be less prominent be addressed if we are trying to simplify and improve than the imperial unit. Proposed subsections (5)(a) the quality of product descriptions and amendments. and (b) define the terms “authorised unit” and It is pertinent that we should look at it. “supplementary indication”, using the same wording The noble Lord also highlights in his proposed new as in the Units of Measurement Regulations. Subsection schedule the anomaly that exists in the markings on (5)(c) makes it clear that clothes and shoe sizes, et beer glasses. However, for those of us who drink cetera, are not to be regarded as units of measurement. rather more wine than beer, there is even more of an In subsection (5)(d), “year” is excluded because, unlike anomaly as places that sell wine by the glass may claim other units of time, it does not appear in the Units of that the glass contains 150 millilitres, or whatever it is, Measurement Regulations; if it were not excluded, it but when you look at it, to the untutored eye, it does might not be possible for traders to offer, for example, not look as though it is anything like that amount. I a two-year guarantee. have on occasion challenged this in restaurants and I now turn to the new schedule. Paragraph 1(1) been told, “Sorry, it’s a big mistake. We have given you explains that the reason why tyres need to be exempted the small measure rather than the large”, and a smidgen is that the labelling conforms to an international standard more appears. However, if one is trying to rationalise which, for historical reasons, is expressed partly in this—and the motivation of the noble Lord, Lord imperial inches. Since the labelling is part of the Taverne, is entirely helpful in addressing this issue—you moulding of the tyre, and since tyres are manufactured might as well try to get a number of other things right. and traded internationally, it would not be practical to Between now and Report perhaps he and the ministerial require them to be relabelled in metric units. team will see what else can be got right and included in the Bill. The reason for sub-paragraphs 1(2) and (3) is that the Units of Measurement Regulations specifically Baroness King of Bow (Lab): My Lords, the noble permit draught beer and cider, and milk in returnable Lord, Lord Taverne, makes a persuasive argument, to containers, to be dispensed and labelled in imperial which I listened with great interest. It is interesting to measures—that is, pints. It is therefore necessary to note that we use metres and kilometres for our athletics, exempt the glassware from the requirements to display miles per gallon for our cars, pints for our milk and metric units; otherwise, all pub glasses would have to beer, miles for our speed limits, feet for our height be dumped. As for paragraph 2, there may be other measurements, and our distances are often measured cases where an exemption is justified. This paragraph in yards. As the noble Lord pointed out, we have been gives the Secretary of State the power to amend this hemming and hawing on this issue for 800 years, so I schedule, subject to the consent of both Houses. doubt that we will sort it out in the next eight minutes. In summary, the amendments enable consumers to Suffice it to say that Amendment 81 would safeguard compare products on a like-for-like basis, using the a critical element of British heritage, not to mention a same units as in the Units of Measurement Regulations key aspect of British identity—the right to buy beer and the price marking order. They would not prevent and milk in pints. For some reason, the self-esteem of anybody from using imperial units in addition if they the British people depends on it. I thank the noble wished. I suggest that these amendments are eminently Lord for bringing this issue before us. As my noble sensible: they are sensible improvements for the benefit friend Lord Harris said, the motivation behind these of consumers, especially the younger ones who have amendments is entirely helpful. I hope that we will get only been taught the metric system at school. I also a thoughtful response from the Minister and I look hope that this Committee will feel that moving a little forward to returning to this on Report. closer to the requirement of Magna Carta for a common standard of measurement, and doing so after a mere Baroness Jolly (LD): My Lords, I start by reassuring 800 years have passed, is not displaying an excessive noble Lords that a statutory framework for the use of sense of urgency. I beg to move. units of measurement is already in place. The Weights GC 445 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 446 and Measures Act 1985 requires the use of metric This is an issue to which we can return on Report to units for any regulated transaction, with the following see either whether we can examine the issues more exceptions—draught beer and cider, bottled milk and widely or whether in fact there is no reason to worry precious metals, where we still use the troy ounce. about the examples I gave. I beg leave to withdraw the These are required to be sold in imperial units. In amendment. addition, the Units of Measurement Regulations 1986 list all the legal units available for any other purpose. Amendment 55 withdrawn. The Weights and Measures Act applies to any unit or measurement in use for trade. This is intended to Schedule 1 agreed. apply not just in the transaction itself but to any use in connection with, or with a view to, trade. That would Clause 61 agreed. already cover most advertisements or product descriptions for goods. I hope that noble Lords will be reassured by Clause 62: Requirement for contract terms and notices this. I am certainly very keen to avoid any possible to be fair confusion for consumers, businesses or enforcers. I am concerned that businesses might be confused by duplication of existing requirements, particularly if Amendment 55A that were to result in reduced levels of compliance as businesses were uncertain about which set of rules Moved by Baroness Hayter of Kentish Town they must comply with. Having a single set of requirements 55A: Clause 62, page 36, line 24, at end insert— on units of measurement, as we currently do, all under “( ) For the purposes of this Act, consumer notices are the weights and measures framework, makes it easier considered to be any information or requirements about the for businesses to know where to look for the rules and contract conveyed to the consumer before or during the commissioning how to comply with them. of the contract by the trader which may reasonably be considered designed to influence the behaviour of the consumer.” 4pm Baroness Hayter of Kentish Town (Lab): My Lords, I am entirely with noble Lords in the spirit of this in moving Amendment 55A, which is in the name of framework. We live, and therefore must operate, in a my noble friend Lord Stevenson and myself, I shall world in which people use modern and internationally also speak to Amendments 56FA and 56FB in this recognised units of measurement. That is why the group. Government support a single system of units. It allows consumers to compare quantities and make informed Clause 62(2) states: purchasing decisions and it reduces costs for businesses. “An unfair consumer notice is not binding on the consumer”. The UK is already a metric nation, with the vast We concur with that, but we are concerned that the majority of trade taking place using metric units. consumer notice should clearly include any promotions Some £212 billion of household expenditure per year that are designed specifically to catch the shopper’s is protected by weights and measures legislation, with eye. We are also clear that in assessing whether something the vast majority of that sold in metric units. is unfair, the CMA should be able to include some However, the Government also recognise that some elements of price where those have been hidden from people are more familiar with, or prefer, imperial plain sight—that is, if the consumers do not appreciate units. That is why we are committed to retaining their significance at the point of purchase. imperial units where they are currently the legal unit To some extent this amendment and those in the or where they are used alongside metric as supplementary next group are part of our attempt to ensure that indications, for as long as people find them useful. consumers should not fall victim to hidden traps in the As the noble Lord has mentioned, the existing traded standard terms and conditions, and that while framework for units of measurement has been in place some core terms and some charges are immune from for almost two decades and metric has been taught in any fairness assessment, that should not be the case schools since the 1970s. I think it might be earlier than where such terms or charges may influence behaviour that; I took A-level physics at the end of the 1960s and or where they are not fully understood at the point of we did it in metric. However, metric units are now the sale. The Unfair Terms in Consumer Contracts norm. The existing regulations have helped the UK to Regulations put the terms into two categories: those make the transition to metric units for the vast majority that a consumer will or can be expected to properly of transactions and they remain in place to ensure take into account when deciding to enter the contract; consistency in the use of units. I therefore ask the and those that he or she will not or cannot. It is the noble Lord to withdraw his amendment. latter that can be assessed for fairness. The Consumer Rights Bill narrows the scope of the Lord Taverne: My Lords, I welcome the suggestion price exemption following the somewhat unwelcome by the noble Lord, Lord Harris, that one might look at 2010 Supreme Court decision on bank charges, but broader issues than the ones I have raised. My proposals still assumes that the consumer will behave like a were very much modest ones. As far as the Minister’s rational economic person and take account of all reply is concerned, I will have to look very carefully at prominent information. However, behavioural studies what she says. I understand that in the examples I tell us that people are often far more influenced by gave, retailers and manufacturers are doing something presentation than by the information itself, or put that is perfectly legal and it is certainly very confusing. more emphasis on salient rather than actually useful I will consider very carefully the suggestions we made. information. As such, even when a price or term is GC 447 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 448

[BARONESS HAYTER OF KENTISH TOWN] prices within a contract need to be assessable for disclosed, consumers do not always factor that into fairness, as the consumer is not in a position to judge their purchasing decision. They also tend to overvalue them and evaluate their worth at the point of purchase. a benefit received now and underestimate the impact I beg to move. of deferred costs, which leads to an excessive willingness to pay at the point of purchase while underestimating the future use of the product, which may lead to future Baroness Drake (Lab): My Lords, I support costs. Earlier in Committee we talked about a future Amendments 56FA and 56FB. These amendments are fee, which a shopper may not consider relevant to not about extending consumer rights, so that more them as they do not appreciate the likelihood of it contract terms can be deemed unfair; they are about affecting them. enabling more matters to be assessed for fairness. The problem arises because of the interplay of two provisions. Similarly, we know that consumers are influenced The court may assess a contract term for unfairness in their buying choices by a wide range of factors, unless it falls into a certain exempt category; and core which is what Amendment 55A seeks to cover. Indeed, terms in a contract are exempt from assessment for it is interesting to note that one of the leading university fairness by the courts if they are prominent and departments specialising in behavioural economics—how transparent. consumers actually make decisions—the University of Through this Bill the Government are clearly seeking Warwick Business School, wrote to the Minister in the to address the problem thrown up by the 2009 Supreme Commons on 7 October, saying that, Court decision in the case of the OFT v Abbey National “simply providing consumers with information about a charge that held, as my noble friend has said, that charges for does not absolve the seller from the responsibility for ensuring the unauthorised overdrafts were exempt for assessment charge is fair and reasonable”. for fairness. This gave rise to uncertainty about whether The business school therefore asked that terms that ancillary charges could be assessed for unfairness. To are effectively “hidden in plain sight”should be assessable use the Government’s own words, this created a situation for fairness, but its wise words pertain also to other whereby: issues that might have been included in information “Some protection in law is necessary because consumers often put to shoppers with exactly the aim of tempting them cannot, or do not wish to, investigate the detail of every contract into the purchase. term before they sign up to an agreement”. One example of this, which we know influences This Bill provides for the “prominence” test for behaviour, is the choice of price times; in other words, core terms in a contract to be exempt from assessment when you find out about them. Research done in 2010 for fairness by the courts, but this raises other by the OFT shows that consumers make more mistakes concerns. Prominence is very important and welcome, and poorer purchasing decisions under what is known but its efficiency in providing a remedy both for as “drip-pricing”, a form of partitioned pricing, where unfairness and for a weak and ineffective market consumers see only part of the full price upfront and depends on how the consumer’s attention is drawn to price increments then drip through the buying process. a term and their understanding of its significance. As This can cause the most consumer detriment. the OFT commented: “Transparency alone cannot turn a substantially unfair term We all tell stories in this Committee. I was on the into a fair one”. point of buying a walking jacket the other day because As the BIS Select Committee commented, bringing it was reduced to only £15. But as you get into it, you something to the consumer’s attention is not the same choose the colour, the size and whether or not you as a consumer appreciating its significance. want a hood, and then you get insurance added on. The jacket was only £15 but the postage and packing Prominence should not be operationalised in a way was 1p short of £4. That is a very large amount to add that gives too great a protection to traders in exempting on to the price but by that stage you have chosen the contract terms for assessment for unfairness and too size, you have chosen the colour—it is a very clever weak a defence to the behavioural bias that consumers way of selling. However, drip-pricing has a very negative demonstrate, so unfairly restricting their access to the effect on behaviour because we start our purchasing courts for assessing the fairness of the term of a process before we see the whole price. Other offers, contract. such as “take home today”, “easy to assemble”—I These amendments are clearly seeking to mitigate have fallen for that one—and “money-back guarantee”, that risk by limiting the wide range of price terms that are the ones that influence the buying process. We are are immune from a fairness assessment. Consumer not saying that they should be outlawed but they markets and products are becoming more complex, should be looked at for fairness. increasing the risk that consumers do not understand the significance of certain information. We have Amendments 56FA and 56FB would amend the behavioural bias. We have asymmetries of knowledge terms that cannot be assessed for fairness and replace and understanding between the trader and consumer them with, that can actually create incentives for the trader to “only where the price payable does not relate to future variable frame information in certain ways—a problem which fees”. the noble Lord, Lord Taverne, illustrated has not been Normally, price is absolutely not assessable for fairness, remedied in 400 years. because it is assumed to be clear to the purchaser. It is The Bill may narrow the scope of the price exemption up to them to decide whether to accept it and then it is following the Supreme Court’s decision, but it does so part of the contract. However, future and unknown on the assumption that consumers will take into account GC 449 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 450 all information that is provided prominently. However, 4.15 pm we know that that is so very often not the case. Baroness Jolly: My Lords, this is the first amendment Consumer behavioural bias is very powerful. If the to Part 2 of the Bill covering unfair terms, so allow me most important goal is buying a house or a holiday, to set the scene. Part 2 responds to the Law Commission’s people will focus less on the detail of the associated recommendations to the Government on how to improve insurance policies. The closer that the consumer gets the rules around contracts between a business and a to signing something, the less likely they are to walk consumer. The aim of this part is to provide clarity for away or assimilate the detail. As my noble friend Lady business and consumers, resolve uncertainties and avoid Hayter has spelled out, the behavioural biases that lengthy court disputes in the future. The basic framework consumers exhibit are very significant. At risk of remains the same: terms in a consumer contract must repetition, I shall restate some of them. People are be fair and they must be plain and intelligible. A court more influenced by presentation than the information. can decide whether a term is fair or not, but the “core They overvalue a benefit that is received now. They bargain”, what you pay for and how much it costs, is underestimate the impact of any deferred cost. They exempt from that assessment in certain circumstances. underestimate future use. They are prone to optimism The legislation also lists certain terms as examples bias. Volumeinformation means that they reach saturation which the court may look at, known as the “grey list”. point. Excessive or complex product information can freeze their decision-making. That is probably one-fifth What are we changing in this Bill? I would draw the of the list that one could enunciate if one was going attention of noble Lords to two particular changes. through a study of the literature. First, we are making the “small print bigger”: price and subject-matter terms must be transparent and The one thing that behavioural science shows us is prominent to avoid a court being able to consider that if consumers are not factoring certain prices into whether they are fair. That requirement for prominence their decision, those prices will not be subject to to avoid assessment is new. Secondly, we are adding competitive forces, so the markets cannot work effectively. three new types of term to the grey list. These are the In effect, the Government will not secure the functioning types of term which are always assessable for fairness. markets they are quite rightly so keen to secure unless We are adding terms which permit the trader to claim there is some limit on the wide range of price terms disproportionately high sums in compensation or for which are now immune or could be immune to fairness services which have not been supplied where the consumer assessment. has attempted to cancel the contract. These are also By way of illustration, perhaps I may refer to the known as early-termination clauses. We are adding letter dated 27 October from the noble Baroness, Lady terms which give the trader discretion to decide the Neville-Rolfe, to my noble friend Lady Hayter on subject matter or price after the consumer has become mortgage contracts. To me, the contents raise more bound by the contract. These additions were concerns than they settle. On the issue of “mortgage recommended by the Law Commission and based on prisoners”, the letter makes a reference to the FCA’s evidence of consumer detriment and case law. concerns that some firms do not seem to be applying I turn to the amendments specifically and, first, its transitional arrangements in the spirit in which Amendment 55A. As I am sure the Committee is they were intended. That is very politely and gently aware, one of the other ways in which this part of the stated, but it is quite clearly yet another example of Bill increases consumer protection is by bringing consumer the failure of rule compliance and is hardly an expression notices into the scope of the fairness test and transparency of confidence that Clause 64 of the Bill will work requirement which currently apply only to consumer effectively. In her letter the noble Baroness also refers contracts. We based our explanation of what constitutes to a number of things that the FCA is doing to a “notice” on the current regime, specifically the Unfair address the concerns raised by my noble friend, but of Contract Terms Act 1977. We make clear in Clause 61(8) course these apply to regulated products. They cannot that a consumer notice, deal with unregulated products, which include the “includes an announcement, whether or not in writing, and any Bank of England example cited by my noble friend. other communication or purported communication”. For these unregulated products we must rely on the unfair contract terms, the problems with which my I can therefore reassure the Committee that “notice” noble friend and I have, I hope, gone through in some has this broad definition, meaning more protection for detail. consumers. We have been asked whether the provisions in Part 2 Other non-financial sectors will exhibit similar problems include general statements such as adverts which are with unregulated products, especially where switching not made to a particular consumer but to all consumers. is difficult because of the length of the contract wrapped Such notices are covered by the unfair terms part of around the product. Examples of these would be this Bill where they relate, products bought in the ICT and telecoms sectors or longer term courses in higher education. When one “to rights or obligations as between a trader and a consumer, or takes into account the extent of the behavioural bias … purports to exclude or restrict a trader’s liability to a consumer”— which consumers bring to the market and how that as stated in Clause 61(4). creates incentives for traders to frame information, the I also remind the Committee that Part 2 complements fact is that if consumers are not factoring these prices other protections. First, this Bill makes clear that into their decisions, it means that competition and certain information the trader gives the consumer functioning markets cannot be operating. There really forms part of a contract for the supply of goods, is a compelling case for amendments that would constrain service or digital content. For example, in relation to a terms that are not assessable for unfairness. contract for a service, Clause 50 provides that where a GC 451 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 452

[BARONESS JOLLY] of such terms. We are therefore making clear in the trader gives a consumer information about a service Bill that terms on this list are always assessable for they are offering, and the consumer relies on that fairness. We are also adding three terms to the list, information in deciding to enter the contract, the again on the recommendation of the Law Commission, trader must comply with that information. Secondly, thereby protecting consumers from three additional the Consumer Protection from Unfair Trading Regulations types of term that they may not fully appreciate when 2008 are already in place to protect consumers from they agree to a contract. Finally, we are taking a power being misled by a trader. I can therefore reassure noble in the Bill to allow us, after parliamentary scrutiny, to Lords that the definition of “notice” has a very broad update the grey list. That means that were consumer scope and that a wide range of notices are covered by or trader behaviour to change, we could add terms to Part 2 of the Bill. Both Part 2 and the other provisions the grey list to accommodate that. and regulations will protect consumers from being I agree with noble Lords that consumers might not misled. appreciate all the terms when agreeing a contract, but On Amendment 56FA, concerns have been raised I think that we have already addressed this in the Bill today that our drafting of the exemption will allow as drafted. I hope that I have explained our reasoning traders to surprise a consumer with additional charges for accepting the Law Commission’s recommendations after a contract has been agreed, without those charges for the construction of Clause 64 and I therefore ask being assessable for fairness. I do not like these surprises that this amendment be withdrawn. any more than noble Lords do. I would rather know about them upfront so I can shop around to avoid Baroness Hayter of Kentish Town: My Lords, I them. That is what the new requirement for “prominence” thank the Minister for that response. As she says, this will allow. Traders should make such charges prominent is the first time that we have discussed this provision. I when they enter into a contract. There should be no also thank my noble friend Lady Drake for her surprises. If there are, the consumer or a regulator can professional and expert intervention; this is her area. challenge them in court. Through that new requirement, Among the details which she so rightly raised, she consumers will for the first time have significant protection used the phrase “transparency alone is not enough”. I from unfair terms in the small print. think that that is the problem that we still have—that The noble Baroness, Lady Hayter, mentioned drip- transparency and prominence are highly welcome but, pricing. The Bill will help protect consumers from by themselves, are not enough. drip-pricing, alongside the Consumer Contracts I very much welcome the expansion of the grey list. (Information, Cancellation and Additional Charges) I think that there was a half-offer there that we could Regulations 2013 which say that these extra charges see the letter that was sent in reply to the Warwick must be clear and comprehensible before the consumer University Business School, so I thank the Minister. I buys. In contrast, were we to allow only the main price particularly welcome something that I am not sure I to be exempt from assessment for fairness, traders had noticed—it is confession time—which is the ability might just bundle all their charges under the headline to update the grey list. We might return to this on price. That is not beneficial for consumers or creating Report after we have read those words carefully to see a competitive marketplace. The Law Commission whether we would still like to tweak it at that stage, recommended to us in 2013 what you see in the Bill although it may be that we will want to do it later. I now. It considered this a careful balance between think that some points are still not sufficiently well protecting consumers and allowing the market to operate. covered. For the moment, I beg leave to withdraw the The Government agree with that view; we need an amendment. unfair terms regime that works in practice. On Amendment 56FB, which would change the Amendment 55A withdrawn. requirement for prominence under Clause 64, concerns have been raised that our current definition allows terms to be “hidden in plain sight”, where a consumer Clause 62 agreed. could see and read a term because of its prominence but still not appreciate its significance. We recognise Clause 63 agreed. that consumers rarely read terms and conditions and that those who do may not fully appreciate how they will impact them. After thorough consultation we Schedule 2: Consumer contract terms which may be agreed with the Law Commission’s recommendations regarded as unfair that the way to tackle this was through transparency, prominence and the maintenance of the grey list—that Amendment 56 not moved. is, the list of terms which are always assessable for fairness. In answer to the concern of the noble Baroness, 4.30 pm Lady Hayter, about customers being irrational, I understand that the Minister has responded by letter to the University of Warwick academics on this particular Amendment 56ZA point. I am not sure whether the noble Baroness has Moved by Baroness Hayter of Kentish Town seen a copy of that letter. 56ZA: Schedule 2, page 56, line 21, at end insert— The grey list is key to protecting consumers from “ A term (including those within the scope of paragraph 22 of terms which they may not fully appreciate when agreeing this Schedule) which has the object or effect of permitting a to a contract because it covers such a very wide range trader to increase the price of, or alter unilaterally any characteristics GC 453 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 454 of, goods, digital content or services during any minimum contract would have the effect of giving a consumer recourse period or before the end of a contract of a specified duration to argue that the change in the terms of the contract without a valid reason or where it is reasonably foreseeable that is not legal and should not take place. This consumer the consumer would not be free to dissolve the contract without being disadvantaged.” detriment, where people cannot get another contract, will be familiar to the Committee. The Minister’s letter, received on 27 October, Baroness Hayter of Kentish Town: My Lords, to which my noble friend referred, relates to Amendment 56ZA, which stands in my name and that Amendment 56ZA and contracts that vary in their of my noble friend Lord Stevenson, deals with a supposedly fixed lifetime, such as a mortgage. However, similar area. It would add a type of contractual term it applies only to what the FCA is doing on mortgages. to the list of what may be regarded as unfair. The But the bottom line is that there is little concrete purpose is to ensure that consumers do not have terms provision in the rules to stop a lender changing the imposed on them which could leave them disadvantaged, terms of a mortgage deal that they have come to regret specifically in a minimum or fixed-term contract where offering in the first place—perhaps when hidden terms a price was increased and where they would then be and conditions allow them to do so—leaving consumers disadvantaged if they were to switch products or providers. high and dry where there is no alternative product. I refer to the discussion that we had on “mortgage Does the Minister agree that if the banks cannot prisoners” earlier in Committee. honour the terms and spirit of a fixed mortgage deal, Which? has pointed out that the Unfair Terms in they should never have offered it in the first place? Consumer Contracts Regulations 1999 recognise that After all, consumers cannot exit the contract without such variation in contracts can lead to consumer detriment. penalty if this happens the other way round, when However, the grey list, as currently drafted, would there may well be exit fees. Therefore, it is hard to see appear to absolve the person varying the terms of the why the provider should be able to do so. contract from responsibility should the consumer be Furthermore, while the Bank of England example unable to end the contract. We discussed examples of allowed BIS to deflect the issue back to the FCA, this where consumers could not leave contracts, for whatever issue can occur in other markets that are regulated by reason. There are clear examples of where ending the different regulators, such as Ofcom with telecoms contract would lead to significant consumer detriment— fixed contracts and Ofgem with fixed energy contracts. for example, if another mortgage is not available or Even more importantly, what happens where there is one’s circumstances no longer qualify one for a mortgage. no regulator at all? Who would take action then? Merely being able in theory to terminate a contract Would it be trading standards or the CMA? Again, it does not alleviate the difficulty of a change being is worth noting that the CMA supports our approach made to the contract for no good reason because the to this. person concerned still needs to find another mortgage I turn now to the other issue in the example of the but cannot do so at that stage. Bank of Ireland. The Government said that it would A mortgage is not the only kind of contract be for the court to decide if the Bank of Ireland case where growing older during its term could make it was unfair, although the FCA has already said that it disadvantageous suddenly to have to find a new one. does not think it was. Furthermore, while the Minister Life insurance is another such example, or home insurance says that consumers can go to the Financial Ombudsman where a neighbour might have experienced flooding or Service, in fact that service adjudicated against the subsidence since the consumer first bought their own complainant because the unfair contract term regulations coverage. In the case of a university degree, where are not adequate in this case. The financial ombudsman suddenly a subject is withdrawn, merely being able to actually cannot help unless the grey list is complete; move to another university does not mean that the that is, if it allows these terms to be open to assessment student is not disadvantaged, especially if they have for fairness. Our amendment would add terms that worked hard for two years at the first university. vary by unknown amounts within a fixed lifetime to the grey list and would thus be able to be assessed for This amendment is limited to fixed-term contracts fairness. That is what we are trying to achieve. and minimum-term contracts, where the expectation I would add once again that although the Government of the deal advertised is at its clearest. The fairness test have tried to use the particular case of mortgages to allows consumers to challenge a term of a contract to show what the FCA considers to be acceptable, we are make it non-enforceable. Any compensation would worried about wider markets where it does not operate. have to be decided separately, whether by the financial The amendment would provide a clear route for someone ombudsman or elsewhere. The Minister will be aware to take their complaint in such a situation, and I hope that the approach we are taking here was supported by that the Minister will either be able to accept it or will the BIS Select Committee and the CMA, so I hope lay out plans to provide an equivalent level of protection that the Government will find themselves in a position within this legislation. I beg to move. to support it, too. Amendment 56D returns us to the issue of The Parliamentary Under-Secretary of State, Department “mortgage prisoners”, although it takes a slightly for Business, Innovation and Skills (Baroness Neville-Rolfe) different approach. It would add to the grey list a (Con): My Lords, these amendments also relate to term in a contract which would give a mortgage Schedule 2 covering the grey list, containing terms provider the ability to increase the price of a which are always assessable for fairness under Clause 62. mortgage in cases where the consumer cannot get a These are terms that are likely to trip up even an astute new contract for the reasons we have been through. It consumer or that someone would not fully appreciate GC 455 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 456

[BARONESS NEVILLE-ROLFE] the new affordability requirements for existing borrowers when agreeing a contract. As the noble Baroness, seeking to remortgage as long as they are not increasing Lady Drake, set out, consumers do not always appreciate the size of the loan. Finally, and most importantly, the the terms they have agreed, and I agree with the sense FCA is also undertaking a review of its new mortgage of the debate that this is not the easiest area in the Bill rules which will consider how the rules are working in in terms of understanding exactly what is happening. I practice and whether any adjustment or clarifications note the points she made not only about regulated are required. If need be there is scope for action and areas but other areas as well, and I am grateful to her the FCA has the powers. for making them. We believe that this amendment would significantly I shall try to address the generalities and then reduce valuable flexibility that lenders currently have perhaps I may move on to financial services, which are in making commercial pricing decisions across the the subject of Amendment 56D. Let me reassure the market. If we make it much more difficult for lenders Committee that there are protections in place to protect to increase rates in response to changing market consumers from unfair variation clauses. Where traders conditions, then lenders’ ability and readiness to offer include a term to allow them unilaterally to change the the most competitive deals will be constrained. Ultimately, characteristics of the goods, service, or digital content it will be mortgage borrowers who lose out. being provided without a valid reason, that is included In conclusion, we believe that introducing new on the grey list as set out in paragraph 13 of Schedule 2. legislative requirements would undermine the robust Those terms can be challenged in court even if they but flexible system of regulation that has been put in allow the consumer to exit the contract. For example, place in recent years. It would constitute a backward if a painter decorating your bathroom includes a term step in terms of delivering the Government’s aim to stating, “All materials may vary in style, colour and deliver a regulatory environment that offers consumers finish”, that term can rightly be challenged for fairness. protection as well as choice and good value. I therefore Where traders include a term to allow them unilaterally ask that this amendment be withdrawn. to change the price of the goods, service, or digital content being provided, that is also included on the Baroness Hayter of Kentish Town: I am not certain grey list as set out in paragraph 15 of Schedule 2. In about the flexibility point, because both amendments that case, a term can be challenged for fairness if the use the words “without a valid reason”. That is the increase is too high and it does not allow the consumer point—there are valid reasons for things having to to exit a contract. I should remind the Committee that change. We are very focused on changes that are made just because an item is not on the grey list, it does not without a valid reason and which therefore of course mean that it is fair or exempt from the fairness test. In cannot be within the expectation of the purchaser. order for a price term to be exempt, it must be prominent Valid changes in interest rates they know; we are and transparent, and I believe that the requirement for worried about changes made without a valid reason. I prominence that we are introducing in this Bill marks want to look carefully at the words used in this amendment a significant increase in consumer protection. I hope and the one before, which to some extent try to address that the noble Baroness, Lady Hayter, will bear that in the same problem, to see how we might come back to mind in her further consideration of this issue. this. I beg leave to withdraw the amendment. The noble Baroness, Lady Drake, mentioned that I had written round—thank you for that. It may be Amendment 56ZA withdrawn. worth reiterating a couple of the points that I made in that letter. The Government are determined that lenders should treat mortgage borrowers fairly. That is why, Amendment 56A not moved. during the course of this Parliament, we have strengthened protections in a number of ways. Most significantly, in Amendment 56B April of this year, the new independent consumer regulator, the Financial Conduct Authority, introduced Moved by Baroness Thornton a revised set of rules as part of its mortgage market 56B: Schedule 2, page 57, line 2, at end insert— review. These provide stronger protections than ever “20A (1) A term which has the object or effect of permitting a before for borrowers taking out a mortgage to buy a trader engaged in the provision of fixed broadband internet home and, indeed, have changed the marketplace a access or mobile internet services to block, restrict or otherwise bit. Among the key changes were improvements to hinder the access of a consumer to any lawful electronic sales standards and to affordability assessments. The communications network or electronic communications service FCA’s rules are designed to protect consumers who on the basis of an unreasonable or unusual definition of “internet find it difficult to switch once market or regulatory access”, “data”, “webaccess” or similar word or phrase. conditions change. Therefore there is a general requirement (2) Nothing in this prohibition shall affect filters for the on firms to treat customers fairly, but there is a specific purpose of child protection. provision within the FCA rules that forbids lenders (3) “Electronic communications network” or “electronic from taking advantage of a borrower who is stuck communications service” shall have the same meaning as in the Communications Act 2003.” with their current mortgage—a circumstance that the noble Baroness, Lady Hayter, referred to. FCA rules say that lenders should not treat these customers less Baroness Thornton (Lab): My Lords, this is an favourably than other, similar customers. In addition amendment to Part 1 of Schedule 2 which seeks to add to that specific provision, the FCA has provided for three sub-paragraphs. They concern net neutrality and transitional arrangements that allow lenders to waive seek to clarify the issue. As the Minister will know, GC 457 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 458 they are made necessary, in some ways, because of the The noble Baroness who introduced the amendment flurry of confusion that was caused by unfortunate did so in a very broad-minded and sensible way, wording in a measure debated recently in the European saying, “We just want to do this in order that the Parliament. It would be absurd, would it not, if in the Minister will take it very seriously”. I just want the name of net neutrality—or anything else, for that Minister to understand that this is much trickier than matter—ISPs or we found that we were unable to take sometimes Ministers are advised. Having been through reasonable steps to protect children from age-inappropriate this, it is a very dangerous area to be in and the materials on the internet. Committee will probably agree that we want both— No right-thinking person can ever have intended protection of competition and protection of people so that, so I hope that the Government will take this that they can make the choices that they want to make. opportunity to put the matter beyond any doubt. There are many unscrupulous people around who will Noble Lords will know that net neutrality is the principle use the one to play against the other. that internet service providers and Governments should Therefore, will the Minister take it from me that it is treat all data on the internet equally. They should not much more difficult than is sometimes suggested, and discriminate or charge by user, content, site, platform that she needs to be on her guard in a particular way? I or application. In layman’s terms that means that hope she will be able to answer the very pertinent whether we are looking at iPlayer, Sky Go or Netflix, questions that were raised by the noble Baroness. there will be equal access to services and there should be no speed differentiation in accessing them. The amendment seeks to address that issue. Lord Best (CB): My Lords, I have added my name I know that noble Lords have comments to make so to Amendment 56B. I was approached by the Internet I will limit myself to putting some questions to the Telephony Services Providers’ Association—ITSPA— Minister. What consideration has she made of any because I chair your Lordships’ Select Committee on possible changes to the principle of net neutrality? Communications. However, my committee has not Will she rule out any changes to data priority for UK had a chance to consider this particular issue so, consumers of online content? Has she had meetings having discussed it at length with ITSPA, which represents with ministerial colleagues to discuss what response some 80 providers of telephony services via the internet, the Government might make if the authorities in I speak in a personal capacity. America, for example, make changes to their rules on The amendment addresses a consumer rights issue net neutrality? Does she feel that existing protocols relating to the penalties facing unwary customers of are strong enough to protect the interests of consumers some of the companies that supply our mobile phone and avoid competition issues among content providers? and internet connections. Unbeknown to those who What assessment has she made of any competition sign up to get the internet from their iPhones and implications of the possible creation of a two-tier other mobile phones—unless they have studied all the internet? I do not expect the Minister to answer those small print and those terms and conditions that we all questions in detail right now but it might be necessary accept but have never read—some of the big players for the discussion to take place between now and the have built-in penalties for using the internet to make next stage of the Bill. I beg to move. telephone calls—for example, through Skype. While providers such as BT, O2 and Sky, for example, have not adopted such practices and do not penalise their 4.45 pm customers in this way, Vodaphone and EE have done Lord Deben (Con): My Lords, I hope that the so in recent years. Minister will listen to this very carefully. I will repeat Presumably, the restrictive practices of these companies for her interest an experience I had as a Minister when are a consequence of them providing mobile telephone I sought to insist that the providers of telephonic services, which could be less popular and profitable if communications should be able to withdraw the service people use the internet to make telephone calls at a to telephone numbers used by people advertising illegally much lower cost. However, this practice is bad not just in telephone boxes. This had become an increasing for the innocent consumer who can have their calls problem and it seemed not unreasonable that we should blocked or degraded, and/or could find some hefty say that if you advertise a telephone number illegally charges on their mobile phone bills, it is also bad for in those circumstances, the telephone company might this industry that finds it harder to attract investment withdraw it. to extend a really useful communication tool which, One of the telephone companies took me to Ofcom, increasingly, could benefit more and more of us but or the equivalent then, to say that this was contrary to has this cloud hanging over it. The practice is detrimental competition and would create a cartel. With very great to consumer interests as well as anti-competitive and regret, the regulator said that it thought that the law will gradually affect other services as we increasingly did mean that. So this very simple way of removing access the internet via mobile connections. very objectionable content in telephone boxes in the I note that amendments to this effect were tabled in centre of London, which were very often used by the other place by both Conservative and Labour young people, was stymied. I use the example so that Members. We learnt there that the Government and my noble friend will recognise that this is an area in Ofcom are keen to see an end to the current bad which very great care must be taken not to allow practice. We hear that in recent days Vodafone and EE the very necessary protection for competition to have bowed to pressure from all sides and agreed to interfere with the very necessary protection for other sign up to the industry’s code of practice which outlaws reasons. the technical blocking or restricting of telephone services GC 459 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 460

[LORD BEST] Ofcom has been in dialogue with the providers, and through the internet. This is a step in the right direction. that there is a commitment to review the wording in Nevertheless, as ITSPA points out, there are ways of their terms and conditions to ensure that these are not interpreting this code of practice that could circumvent misinterpreted in this way. its intentions, for example simply by avoiding the term The noble Baroness, Lady Thornton, asked about “internet access” and using a synonym such as “mobile the assessment of the two-tier internet. The Government’s data”or “mobile broadband”. There are also no sanctions intention is to ensure an open, secure and safe internet. for breaking the code, and those who voluntarily sign Where some services are blocked, we want to see it one day can withdraw from it another. Only through transparency.However, our experience is that competition legislation is the matter fully resolved. is working. The proposals in the US are informed by As I know from the work of the Communications the US market. The UK’s market is very different, so Committee, ensuring the law keeps pace with technological we watch with interest to see what the FCC will do. change—particularly in respect of the internet—is an More broadly, the Government and industry through important challenge for today’s legislators. This Bill the Broadband Stakeholder Group have done a great takes steps in that direction and this amendment is deal of work together to ensure that there is greater very much a case in point. It seems that in the somewhat transparency.For example, two industry codes of practice arcane world of telephony services, the consumer needs have now been developed. This, coupled with the UK’s the protection of the law, not just of a voluntary code, highly competitive telecoms market, has been very to ensure fair play. successful in ensuring that there is no consumer detriment Finally, I gather that there is a school of thought caused by traffic management problems. that suggests we should await an EU directive on I hope that this gives some reassurance to noble so-called internet neutrality—to which the noble Baroness, Lords proposing the amendments. However, given Lady Thornton, referred. That would cover this point, their wide applicability, it makes an awful lot of sense among other measures. However, I fear that we could to convene a meeting on this issue with interested wait a very long time for agreement on the content of parties before Report. Therefore, I ask the noble Baroness this Europe-wide measure. Surely it is much better for to withdraw the amendment. UK citizens if the Government act now with a small, well-focused amendment to the Bill already before us. Baroness Thornton: I thank the Minister and the I am delighted to support this amendment. noble Lords, Lord Deben and Lord Best, for their remarks. Lord Stoneham of Droxford (LD): Briefly, I lend my I was getting quite cross until I heard the Minister support to this amendment. Most of the points have read out her last paragraph, as I thought that her already been made but wherever uncompetitive activity remarks showed a level of complacency which I do not is trying to distort a market and deprive market entry think is justified. As the noble Lord, Lord Deben, to competitors it should be exposed and eliminated. said, this is a complex area. I would certainly like to Internet access should be open and consumers buying take the Minister up on her offer of discussions before that service expect it to be so. Can the Government the next stage of the Bill. I beg leave to withdraw the really achieve their objective of an open market without amendment. considering this amendment? Selective blocking is abhorrent to innovation and generally has uncompetitive Amendment 56B withdrawn. motives. Consumers are not fully aware of the practices when ISPs and mobile providers undertake inhibiting Amendment 56C their services. Ofcom has already indicated that it Moved by Baroness Hayter of Kentish Town would welcome more clout against the blocking of or economic deterrents for internet services. It 56C: Schedule 2, page 57, line 2, at end insert— recognises that these practices should be unacceptable. “ A term which either— The voluntary code of practice should be given statutory (a) requires or encourages a consumer to contract third support. party services without informing them of their right to seek independent advice; or (b) seeks to limit a consumer’s access to independent advice Baroness Jolly: The noble Lord, Lord Deben, says regarding third party contracts where there is a potential that this is a tricky issue and he is clearly right. One of conflict of interest for the third party involved.” the tricky bits of this amendment is that many aspects of internet behaviour can be fitted under these Baroness Hayter of Kentish Town: My Lords, in amendments. The ones in my comments relate to moving Amendment 56C, I shall speak also to those of the noble Lord, Lord Best, in which people Amendment 56FD, both of which also stand in the using voice over internet protocol have been wrongly name of my noble friend Lord Stevenson. charged for it. Nobody wants to see that situation but These amendments are about protecting consumers I question whether there is a need to change the law to who take out legal protection through their insurance tackle such behaviour as we have good and robust policies against being allocated a lawyer who has some protections in place for consumers. tie with the insurance company. Instead, they should I also understand that companies which block services clearly be offered independent advice and have greater such as Skype no longer offer packages that do so, certainty that any lawyer arranged through such a except on legacy tariffs, so these terms and conditions deal will act independently of the interests of the should not apply. I also understand that the regulator insurance company.This is about ensuring that, following GC 461 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 462 an accident, the lawyer, who has after all been paid All of that should be covered by the Solicitors for by their premiums, is working for the driver and Regulation Authority and the FCA. From the consumers’ not in any way for the insurance company.Unfortunately, point of view, however, there are two big players that experience shows that it is necessary to look at this. they are dealing with—insurance companies and large At the moment, if you look at your car or house legal firms—whose business models they do not insurance, you may well find a paragraph about legal understand. These big players have far more knowledge protection. of the accident and insurance world and the likely The problem is that, should you need to call on compensation than the policyholder has, and it appears this, you would probably have to use the law firm that they do not always put the consumers’ interests first. that the insurers appoint, not a lawyer of your own These amendments are not about replacing the choice. And one has to ask, in order to stay on the SRA or FCA’s roles as regulators over these two areas panel recommended by the insurance company, what but simply call for transparency, something which we incentive would there be for a law firm to do extensive know the Minister is very keen on in other clauses. and therefore expensive work, which would be paid They call for transparency, together with absolute for by the insurance company, rather than a quick job clarity, as regards the right of clients to choose their which perhaps looks very satisfactory to the driver, if lawyers so as to ensure that they are completely it results in a very fast settlement? Would such a law independent. I beg to move. firm on the panel which relies for its work on referrals from the insurance company, really fight the driver’s corner with any vigour in a personal injury claim, or Baroness Jolly: Perhaps I may reassure noble Lords would there be a temptation to settle for the first offer that where conflict of interest is an issue in particular from the other side? These legal expenses clauses are sectors, the Government have taken action. As I am often difficult to remove from an insurance policy, sure noble Lords are aware, in November 2008 the which does not sound like a healthy market for then Master of the Rolls, Sir Anthony Clarke, appointed consumer choice. Lord Justice Jackson to lead a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to 5pm promote access to justice at proportionate cost. Lord Evidence given to the Transport Select Committee Justice Jackson published his final report in January described the risk in these circumstances of what was 2010 and the recommendations are being taken forward termed “third party capture”. The evidence described in a variety of ways. A number of measures required a tactic used by insurers to try to “capture” and settle primary legislation, and some of the major reforms an injury claim direct with the claimant before independent are in the Legal Aid, Sentencing and Punishment of legal advice, and sometimes even a medical report, has Offenders Act 2012. Other reforms will be implemented been obtained. We have been told that there sometimes through rule or policy changes. are cases where the insurer will cold-call or write to a Part 2 of the Legal Aid, Sentencing and Punishment policyholder after a vehicle damage-only accident has of Offenders Act implements recommendations made been reported to it. It will even suggest that they in Lord Justice Jackson’s review.No-win no-fee conditional discuss any claims for injury, perhaps mentioning a fee arrangements have been reformed, but remain available. sum of money in final settlement of the claim, if the They provide a means of funding legal cases for those claimant does not involve solicitors. who could not otherwise afford them. That part also It is true that under the industry’s voluntary code, provides that for personal injury cases, referral fees are insurance companies are meant to advise the policyholder prohibited. This ban covers both the payment and that they have a right to independent legal advice, but receipt of such fees, which means that a firm cannot somehow this is sometimes forgotten. The risk is not benefit through referring a customer to a particular only that the legal expenses part of the insurance third party. In effect, this removes the incentive on the cover is not activated—which saves the insurance company trader to refer a consumer to a particular third party, money—but that the policyholder, who normally will just as this amendment would do. The ban captures all have zero idea of the likely compensation for an injury of themainbusinessesinvolved:solicitors,claimsmanagement that was fairly awarded and argued in court, gets a companies and insurers. Any breaches of the ban will rather low pay-out from the insurer. be subject to appropriate regulatory action by the The insurer will sometimes call in a lawyer, of relevant regulators, which are the Solicitors Regulation course, but it might automatically refer the policyholder Authority,the FCA and the Claims Management Regulator. to one of its panel solicitors. We have been told of This regime has been in force since April last year. examples suggesting that claimants have been encouraged Provision is also made in the Act for a power to by insurers to under-settle. Lawyers representing one extend the prohibition to other types of claim and trade union member recounted to us how he was legal services beyond personal injury claims. However, allocated solicitors by his insurer following an accident. the Government do not intend to use this. There is no The insurer advised him to accept an offer of £2,250. evidence that such a ban is needed in other sectors. However, as soon as independent lawyers got involved, I hope that that reassures the noble Baroness and I the claimant was awarded more than £5,000. In another would ask her to withdraw the amendment. case, when a woman’s car was hit by another vehicle and the other driver’s insurer admitted liability, she was repeatedly called over a weekend by her only Baroness Hayter of Kentish Town: I thank the Minister insurer to try to get her to accept £1,000, whereas her for her reply. I have worked on referral fees a lot and of lawyers settled for £5,000. course this is not quite the same. It is not about the GC 463 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 464

[BARONESS HAYTER OF KENTISH TOWN] when identifying what is average. The essential point payment of referral fees, but about a law firm which is of Amendment 56FC is to give courts flexibility when dependent for the volume of its work on being referred determining what constitutes average. The amendment by an insurance company. I made no allegation whatever supports the view of the Financial Services Consumer that a referral fee was being paid. The problem is that Panel, which has judged the Bill to be inadequately if the insurer is putting all its cases to one or more flexible. lawyers on its panel, that sets up a potential conflict of interest for the law firm which wants to remain on the I realise that the Minister is likely to respond to panel. Amendment 56FC by saying that it is too subjective. It would seem, for example, to protect consumers who I know that the Minister will not be able to answer might currently be unprotected—those who are not my next point now, but she has talked about claims average. An example might be consumers with learning management companies. She will not be aware, because difficulties, mental health problems or medical conditions. she was not the Minister at the time, that another The European Court of Justice has not found this amendment I did get through was that complaints approach too difficult and has used the phrase in a against claims management firms should be able to be succession of cases. Although the ECJ expects traders made to the Legal Services Ombudsman. I think that to consider an average consumer as reasonably well that happened around 18 months ago, but the SI has informed and reasonably observant, at the same time still not come before your Lordships’ House. Despite it expects traders to take social, cultural and linguistic this House having taken the decision—a very wise factors into account. This does not seem to have decision, I have to say—that complaints against claims caused it undue problems. management firms can be made to the Legal Ombudsman, the MoJ has been so tardy that we still do not have the Amendment 56G requires the CMA to, SI. I am sorry to get that in as a dig, but we are still “publish an annual assessment of the extent of consumer detriment waiting for it. It is really important in these sorts of caused by the use of unfair terms”. issues. Throughout this debate, we have heard that consumer As I say, it is not referral fees that we were touching protection is meaningful only if consumers understand on in this. It is about being absolutely certain that what their rights actually are and those rights are when you pay for insurance to cover legal representation enforced. Amendment 56G would provide insight into if anything happens, that legal representation should those two critical factors. Many stakeholders involved be absolutely non-conflicted and should act for the with this legislation are concerned about the enforcement driver concerned. For the moment, I beg leave to landscape, which is looking very patchy, to say the withdraw the amendment, but if the Minister could least. One of the obvious reasons for that is that talk to her colleagues in other departments and if they funding for trading standards has in some places been could move on the complaints against claims management cut off at the knees. The majority of trading standards firms going to the legal services ombudsman, many enforcement comes via local authorities and we all people would be very grateful. know what has happened to local authority funding. The amendment requires the CMA to publish an Amendment 56C withdrawn. annual assessment of the extent of consumer detriment Amendment 56D not moved. in relation to what we have just been discussing around unfair terms. Amendments 56E and 56F had been withdrawn from the It is helpful to have an idea of what we are talking Marshalled List. about in terms of scale. The most recent comprehensive research on this that I am aware of was conducted by Schedule 2 agreed. the National Audit Office in June 2011, although I would welcome any more recent figures that the Minister Clause 64: Exclusion from assessment of fairness no doubt has to hand and can bring to the debate. In June 2011 the NAO estimated that the total cost of Amendments 56FA and 56FB not moved. detriment to the consumer was £6.6 billion. Of that sum, £4.8 billion could not be tackled locally. Therefore, £4.8 billion of consumer detriment requires a national Amendment 56FC response and a national enforcement strategy. That Moved by Baroness King of Bow national response is funded to the tune of £34 million—or 56FC: Clause 64, page 38, line 20, at end insert “, taking into at least that was what was forecast for this year. account social, cultural and linguistic factors” Those figures set out a national problem that costs the consumer almost £5 billion, depending which of Baroness King of Bow: My Lords, Amendments 56FC those figures you are using, and yet our response at a and 56G are in my name and those of my noble national level amounts to £34 million. That is an friends Lady Hayter and Lord Stevenson. example of asymmetry that is clearly detrimental to Amendment 56FC aligns the definition of “average consumer interests. Of course, you are never going to consumer” with case law from the European Court of spend as much on trying to tackle the problem as the Justice. This basically means using a phrase already scale of the problem itself because clearly that would well established in EU law to identify an average not make sense but I am sure we can all understand consumer. The phrase in question is, that there is a very big gap there when you look at the “taking into account social, cultural and linguistic factors”, scale of the problem. GC 465 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 466

I am sure that, none the less, the Minister will resist Some consumers already begrudge the time spent the amendment by saying that the NAO is reviewing purchasing insurance and the length of the documentation the landscape. She may well also point to research they receive. commissioned by the University of Birmingham which the Government are supporting and which will look at I am aware that the language proposed is used in the structure of trading standards and the extent to other legislation, such as the Consumer Protection which funding cuts may have impacted the service, from Unfair Trading Regulations. However, it among other issues. However, the key point here is would not be practical to use the same definition of that the CMA has overall responsibility for unfair “average customer” here. That is because those terms legislation and therefore the CMA should determine regulations are for unfair trading practices. A trader detriment in this area. After all, it holds the knowledge who, for example, uses advertisements to mislead about what is happening in the market. Yes, the NAO consumers will know at whom it is targeting those has looked at the landscape and said that it is a dog’s advertisements. Indeed, it can choose who to target breakfast because it is just so complicated. The feeling and what type of consumer to engage with. The Law out there is that the Government have replaced one Commission examined that issue in its 2013 report complicated landscape with another one. and recommended the definition we see in the Bill. Like noble Lords, it strongly supported a definition We know that the scale of the problem is huge and that works in practice. that the resources allocated to tackle it are few and far between. It is for precisely that reason that we need all I am pleased that Amendment 56G gives me an the insight and information we can get from the right opportunity to talk about Schedule 3 to the Bill. This source. The debate that we recently had on unfair schedule is vital to ensure that the consumer protection terms sets out why we need to assess and then tackle regime is enforced effectively. As the noble Baroness the vast scale of consumer detriment caused by unfair said, rights need to be not only understood but enforced. terms. I beg to move. It provides for a tailored, specific enforcement regime for the law on unfair terms. We have taken the current enforcement regime under the Unfair Terms in Consumer 5.15 pm Contract Regulations 1999 and worked with the Law Commission and our stakeholders to improve and Baroness Jolly: My Lords, let me take each of these update it. For example, we are making it clear for the amendments in turn. First, on Amendment 56FC, the first time that enforcement action can be taken against Government of course agree wholeheartedly that consumer notices, such as those seen in retailers’ car vulnerable consumers should be protected. The existing parks, that seek to deny all responsibility for theft consumer protection regulations protect vulnerable from or damage to cars parked in them. We have also consumers from misleading and aggressive practices. taken a national approach to unfair terms enforcement They take into account whether a practice is directed in Schedule 3. This Bill will reduce consumer detriment at a particular group and whether that group is particularly by £2 billion a year. vulnerable when considering whether a practice is misleading. On 1 October this year the Government Schedule 3 includes a key role for the Competition amended those regulations to make it much easier for and Markets Authority, as the noble Baroness mentioned. consumers who have been the victim of such practices It sits at the heart of enforcement work on unfair to get redress. The Government have also ensured that terms across the regulatory landscape and has the there is support available for those who need help power to issue guidance on what traders need to do to understanding their finances or their financial options, comply with the law in this part of the Bill. for example through the Money Advice Service and citizens advice bureaux. I can reassure noble Lords that the CMA will publish on its website details of specific enforcement However, one of our aims in Part 2 of the Bill is to action taken. It is also required by the Enterprise and create a regime that protects consumers but which Regulatory Reform Act 2013 to publish and lay before traders can work in practice. I am not sure whether the Parliament an annual report that covers among other noble Lady would agree, but I do not think that a things its enforcement activity in the previous financial trader can be expected to know the social, cultural and year. Traders, consumers and other enforcers can also linguistic characteristics of their customer; and, in ask the CMA for this information during the year. Of many cases, the customer would not want to share the course, for noble Lords, and for Members in the other detail. Many contracts are now agreed remotely online place, the benefit of having the annual report laid in or over the telephone, a practice that greatly benefits front of Parliament means that noble Lords can challenge the consumer through speed, ease and efficiency.However, the CMA on its work. in such cases the trader cannot know the specific details of who it is contracting with, and I am not sure The department also regularly monitors consumer that we should be encouraging it to ask that information detriment in order to inform policy. I am pleased to of the consumer either. Even in a face-to-face transaction, say that a report on consumer detriment, drawing on a business might need to spend considerable time survey responses from real consumers across a whole assessing the social, cultural and linguistic status of a range of sectors, was published earlier this year and is consumer, and even after that there will be uncertainties available on the GOV.UK website. I have given noble about how accurate that assessment was. This is a Lords several examples of the CMA’s work that we process that consumers themselves may not appreciate, think would not call for either of the two amendments as the Association of British Insurers pointed out in that the noble Lords are suggesting, and I therefore its evidence to the Bill Committee in the other place. ask that the amendment be withdrawn. GC 467 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 468

Baroness King of Bow: The Minister points out as a Schedule 3, as amended, agreed. concern with Amendment 56FC that it might cause the trader problems in relation to knowing the background Clauses 71 to 75 agreed. of the consumer. I trust that she understands that the point behind the amendment is, as I set out, not to Schedule 4 agreed. increase any undue burden on the trader; rather, it is to increase flexibility in the courts when determining Clause 76 agreed. what constitutes the average. As I hope I have pointed out, this seems to have been done in a way which will not lead to the problems that the Minister raised. Amendment 57A On Amendment 56G, I am delighted that the Moved by Lord Stoneham of Droxford Government estimate that the Bill will reduce consumer 57A: After Clause 76, insert the following new Clause— detriment by £2 billion. However, the point remains that the agency that would appear to be best suited to “Copyright being able to measure this is not the one tasked with In cases where there is a consumer contract under Part 1 or that, as far as I am aware. The concerns still remain, 2 of this Act, paragraph 1(c) of Schedule 1 to the Unfair Contract Terms Act 1977 (scope of sections 2 to 4 and 7) but naturally at this point I will withdraw the amendment. applies with the omissions of “copyright,”.” Amendment 56FC withdrawn. Lord Stoneham of Droxford: My Lords, I speak on behalf of my noble friend Lord Clement-Jones, who Clause 64 agreed. has commitments in China this week. I reassure the Committee that this is not an option that has been Clauses 65 to 67 agreed. proposed in order to make speedier progress on the Bill. Clause 68: Requirement for transparency The purpose of Amendment 57A is to amend the Unfair Contract Terms Act 1977 so that it would Amendment 56FD not moved. apply to intellectual property rights contracts. Although this has been sought by the Society of Authors, we Clause 68 agreed. would argue that there is a wider significance that needs to be examined in the context of the Bill. There Clauses 69 and 70 agreed. is no justifiable reason why creators should be denied the legal protections afforded to other businesses, and we would therefore press for the amendment to be Schedule 3: Enforcement of the law on unfair contract accepted. terms and notices The Consumer Rights Bill should be extended to protect creators and others in an unfair negotiating Amendment 56G not moved. environment where they often have little choice but to sign the contracts that are put in front of them. For example, writers always have to sign clauses Amendment 57 indemnifying publishers against any claims brought Moved by Baroness Neville-Rolfe by other parties even when they arise through no 57: Schedule 3, page 61, line 9, leave out sub-paragraph (7) fault of the author, and even though the publisher is and insert— covered by insurance. Nor can writers easily enforce “(7) No order may be made under sub-paragraph (2) unless a performance which turns out to be substantially draft of the statutory instrument containing it has been laid different from what they could have reasonably before, and approved by a resolution of, each House of Parliament.” expected under the contract. The proposed new clause would impose a basic Baroness Neville-Rolfe: My Lords, this amendment obligation of fairness. It is unclear why contracts was recommended by the Delegated Powers and involving intellectual property are currently excluded Regulatory Reform Committee in its report on the from the Unfair Contract Terms Act, but it is probably Bill. On the committee’s recommendation, we propose because they were not so significant in 1977. It will to change the parliamentary procedure used to update protect consumers and businesses from being bound and amend the list of enforcers of the unfair terms by contractual terms that they may not have read as regime by moving from the negative to the affirmative they would have simply clicked their agreement to procedure. We agree with the committee that now that them, as we all do, on the assumption that they the list of enforcers is in primary rather than secondary contain nothing astonishing or that the law will offer legislation, this is a significant power because it can be protection. For intellectual property rights, which could used to add to or amend the list of enforcers who can include something as basic as buying an e-book, there take action against unfair terms, as set out in Part 2. is currently no legal protection against unfair terms. As such, the higher level of parliamentary scrutiny This is remarkable, given the growth of contracts and the opportunity for debate that the affirmative involving intellectual property rights. procedure provides is more appropriate. I beg to move. The Government may argue that this new clause would represent a major change that requires consultation, Amendment 57 agreed. but we do not agree. It is not being suggested because GC 469 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 470 creators have little bargaining power—although that Parasitic copies are potentially unlawful under the is true—but because if as a society we agree that consumer protection regulations as they mislead people should be protected from hidden and patently consumers. However, civil enforcement action can be unfair terms in contracts, the protection should be brought only by those designated under the Enterprise apply to everyone. It is completely illogical to exclude Act; namely, the Competition and Markets Authority contracts that relate to intellectual property. Without and trading standards, both of which lack the resources a government response, this unfairness will grow with to do so. The ineffectiveness of existing legislation the increase in contracts involving intellectual property, calls into question the UK’s compliance with the and it will deter innovation. I urge the Minister to trade-related aspects of intellectual property rights, accept the amendment, or at the very least tell the the Paris convention and the unfair commercial Committee how the Government intend to deal with practices directive requirement for member states this growing inequity. to provide adequate, effective remedies to unfair I now turn to Amendment 63A, which is somewhat practice. unrelated. I have spent my life in the publishing business, On remedies and solutions, we propose a new clause where passing off brands was a problem. Although we to give brand owners the right to take a private civil invested heavily in brands over a long period, it required action under the consumer protection regulations as us to be ever vigilant to protect them. Parasitic copying— provided for in the European directive where they the practice of packaging consumer products to mimic reasonably believe that similar packaging is likely to familiar brands—misleads consumers and distorts cause confusion or association with their packaging competition. Indeed, this has been recognised by the and/or products. That right is focused solely on similar Government, who launched a consultation in February packaging of consumer products and extends only to on enforcing consumer protection regulations in relation those adversely affected. It is a tightly focused, limited to misleading, similar packaging. It is therefore a right. Such a right would ensure compliance with the legitimate subject to be covered by the Bill. Copying European directive and other treaty obligations. The the packaging of branded goods hijacks the reputation consumer would be presented with a clear, fair choice of a brand built up over many years of consumer when making purchase decisions. Consumer protection experience. The current legislation appears inadequate would be enhanced at no cost to the public purse. to deal with the problem. Business investment in strong, compelling reputational quality and innovation would be protected. I hope the 5.30 pm Minister will accept this amendment and at least update I urge Members of the Committee to look particularly us when action will follow on the current consultation. at the British Brands Group website, which shows I beg to move. some of the extent of the problem. I will not mention brands from Tesco in the interests of not embarrassing Lord Stevenson of Balmacara (Lab): My Lords, I my noble friend the Minister but other goods from was aware that the noble Lord, Lord Clement-Jones, supermarkets besides that particular chain are identified was abroad because I have been in correspondence on that site as clearly infringing fair and competitive with him on other issues in relation to this Bill, but I practice. I urge other Members of the Committee to had not realised that he had set up such a brilliant look at some of those goods. They are not just big “counterfeit parasitic package” in his place. The noble brands, which have the defence of the resources of big Lord, Lord Stoneham, has done a wonderful job of companies; there are smaller brands as well. I will presenting the case and I congratulate him sincerely mention just two: Dorset Cereals, copied by Sainsbury’s, on that. and Tunnock’s Caramel Wafer Biscuits. These are products we all know and some of us may love but I do that because I have been exposed to the original others are trying to imitate. This problem is not helped version on a number of occasions. Those of us who in the grocery trade by the concentrated power of the have sat through the various pieces of legislation emerging supermarkets, which makes it very difficult for branded from BIS this year have been astonished by the persistence products to complain. A major study by the Intellectual that the noble Lord has displayed in finding ways to Property Office last year showed that consumers are introduce both these items out of a hat. Even in misled by packaging to buy the wrong product. Similar respect of the most unlikely of clauses, he has been packaging increases the perception that two products able to persuade those who should know better that can be from the same source, enhances perceptions of they were not only in their scope but were central to quality and increases the propensity to buy—that is the whole understanding of consumer law in this area. precisely why it is done. There are a lot of prizes around Parliament, such as those for the best newcomer or the best law. We ought Why does existing legislation not work? Designers to have one for persistence, and the noble Lord, Lord who produce parasitic copies design around registered Clement-Jones, would win that hands-down. trademarks and to avoid infringement while still creating a similar overall impression to the original. Parasitic Having listened to the noble Lord, Lord Clement-Jones, copies tend to fall short of the substantial reproduction over the years, I am aware of the arguments he uses in tests required for copyright infringement. The evidence these matters; indeed, my speech was prepared in for proving passing-off in the courts to show confusion response to what I thought he would say. It is rather is extremely difficult to obtain. Consumers tend not to irritating, but also very gratifying, that the noble Lord, complain about low-priced items. Evidence cannot be Lord Stoneham, was able to find new words for these gathered in store and courts often dismiss survey issues. It shows that this is not just a one-man band, results as unreliable. which is an unhelpful way of describing it, but there is GC 471 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 472

[LORD STEVENSON OF BALMACARA] Baroness Jolly: I am grateful to my noble friend a broader sense of engagement with this issue, something Lord Clement-Jones for tabling these amendments that the Minister should reflect on when she comes to and to my other noble friend for speaking to them on respond. his behalf. The case on the question of copyright is a strong I realise that these amendments are closely related one. It is perplexing that until recently the Government but I will take each in turn, starting with Amendment 57A. have maintained the view that it was okay for copyrights Noble Lords asked why we are not changing the scope to be excluded from any negotiations, particularly of the Unfair Contract Terms Act in the Bill to apply where negotiations were between a relatively unresourced to business-to-business intellectual property contracts. creative person and a large corporation. Individual This is because this Bill is about consumers. We want creators can be at a disadvantage when negotiating to have a one-stop shop where consumers can go to such contracts, and it is time to look seriously at the find their rights. Adding business-to-business contracts Unfair Contract Terms Act and amend it if necessary would dilute this for consumers, making the law more in order to ensure that the terms of engagement are complex and reducing its accessibility. Having rights more equal. I know there have been discussions on this for businesses in the Unfair Terms part of the Consumer issue, and the last time this came up the then Minister Rights Bill may also be confusing for businesses. confirmed that he would meet with representatives We sympathise with the situation in which some from the various creative industries. I would be grateful small businesses find themselves. However, we have if the Minister would confirm whether that meeting not yet seen evidence that amending the Unfair Contract has taken place and, if so, tell us what the outcome Terms Act in this way would address the issue. We was and whether there were any proposals discussed would need substantial, quantitative evidence of a that might have ameliorated the issue. It is an interesting problem to make this change. We would also need to one, which has been bubbling away quietly, but it has be sure that amending the Unfair Contract Terms Act now reached a point where we need to make some in this way would solve the problem my noble friend movement on it—doing whatever is possible through raises without unintended negative consequences. this or other measures. My noble friend Lord Stoneham raised the issue of consultation, effectively saying that we do not need On the relationship to parasitic packaging—which consultation, we need action. We need to be sure that is a new name since we went though this last time—the we get this right, so we need to consider all interests. case was certainly well made by both the noble Lord, The creative industries are too important to rush this. Lord Clement-Jones, and the noble Lord, Lord Jenkin, They are really critical to the UK economy. The who is not in his place today but has followed this department is aware that this is a live issue, but the Bill subject with interest. I think it is correct to say that is not the place to solve it. lookalikes are already unlawful in the United Kingdom because they are contrary to a variety of measures Lord Stoneham of Droxford: Is my noble friend introduced by previous Governments, particularly the saying that in recognising the issue, the department is Consumer Protection from Unfair Trading Regulations prepared to initiate some form of consultation to put 2008. The point made by the noble Lord, Lord Stoneham, this inequity right? was right: these regulations would have little effect if the responsible authorities—in this case it must be the Baroness Jolly: Yes, there was a meeting and the trading standards people—do not have the resources outcome was agreement from the creative industries to to take action against those who might breach the provide evidence of the problem and to propose a regulations. His point, which I support, is that we need solution. My noble friend has just said that she is more detail from the Minister on whether trading seeing the British Brands Group tomorrow at an IP standards are sufficiently resourced to be able to deliver round table to discuss these issues. on this point. For instance, will the Minister identify precisely what resources are currently being deployed in this area? Where is the responsibility for these issues Lord Stoneham of Droxford: I am sorry, that is a physically located? There is an understanding among separate issue. That is on parasitic brands. I am sorry the trading standards authorities to locate particular to confuse my noble friend. Perhaps she could write to responsibilities in particular areas; I would be grateful me. if we knew a bit more about how that will have been done in this case. Baroness Jolly: I will drop my noble friend a line. I am sorry, that has thrown me. I was given this and told The most interesting issue is one that was touched exactly where to slot it in. on—but perhaps not explored as much—in the speech today: the line between confusing packaging on the Lord Stevenson of Balmacara: Just to pick that up one hand and the use of generic cues to signal to and endorse it, in my researches for today I just customers on the other. The point is that if similar happened to check back in Hansard and I felt it was packaging prompts mistaken purchases and creates important to reflect on this point. When this was false assumptions in the minds of consumers, there discussed previously, the noble Viscount, Lord Younger must be an effect on sales. If there is an effect on sales, of Leckie, said that the noble Lord, Lord Clement-Jones, then it is surely right for the Government either to had sent him a paper, strengthen existing powers so that they are effective or “on how the issue of unfair contracts could be addressed. I to introduce new legislation. I would be grateful if the confirm at the beginning that I have received this paper and that Minister could respond to that point. we will consider his suggestions very carefully. It is a little early to GC 473 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 474 talk about this as a formal review, but I reassure him that we will Although I am disappointed that the review on parasitic certainly discuss this and take it forward”.—[Official Report, products is not going to be published until early 2015 11/3/2013; col. 55.] and I have certain doubts as to how this Government I am very heartened to hear from the noble Baroness could deal with the European Act, we have had some that there has been a meeting. That is a good thing. If assurances that the Government are on a path towards evidence was required from the creative industries, I progress on this matter. I will have to leave it to my am sure that it would have been supplied, so what is noble friend Lord Clement-Jones to decide how he the hold-up? pursues this matter. I beg leave to withdraw the Baroness Jolly: We can clarify this. The noble Viscount, amendment. Lord Younger, had a meeting to discuss this and we have asked for more detail. I hope to be able to come Amendment 57A withdrawn. back with more detail on this for noble Lords, certainly before Report. Clause 77 agreed. Moving to Amendment 63A, I would like to add my compliments to those of the noble Lord, Lord Stevenson, to my noble friend for speaking to this Schedule5:Investigatory powers etc. well-crafted amendment so clearly and for raising the important issue of copycat packaging. This was debated Amendment 58 at the Committee stage of the Intellectual Property Bill in June last year and the noble Viscount, Lord Moved by Baroness Jolly Younger of Leckie, said that the Government would 58: Schedule 5, page 72, line 8, at end insert— undertake a review into this issue. “section (Enforcement of the duty)(1) of this Act.” 5.45 pm A call for evidence was launched in April this year. Baroness Jolly: My Lords, I want the requirement We received over 30 detailed responses. I was talking for letting agents to publicise their fees to come into to the Bill team about this yesterday. The responses effect in both England and Wales as soon as possible were incredibly detailed with a wide and often polarised to ensure that tenants have some certainty over the range of views on the issues identified. The call for payments they have to make. This is why I have laid an evidence was followed by a round-table discussion amendment putting the enforcement details into the with stakeholders in July, which provided us with Bill rather than subsequently using secondary legislation. more information. Officials are continuing to review This amendment simply uses the process described in the information received. We had hoped to publish the existing clause but makes it clear that the duty in our final report with analysis by September, but this England and Wales will be enforced by county councils, has not proved possible. It is important that the views county borough councils, unitary authorities and London of interested parties are properly considered and that boroughs. we take the necessary time to do this. Furthermore, it These authorities will be able to fine agents who fail had originally been envisaged that the review would be to publicise their fees up to £5,000 for each office and published before Ministers had taken any view on the website. Agents will be able to appeal to a tribunal. I matter. It has now been decided that it will be published recognise that enforcing the requirements for agents to alongside Ministers’ decisions on the issues. We anticipate publicise their fees will entail a new burden for English that the outcome of the review will be published in local authorities, so we will make additional funding early 2015, so while I recognise my noble friend’s available for this. Furthermore, authorities will be able desire to make progress on the issue, I am sure he to retain the fine, potentially enabling the proceeds would agree that it would not be appropriate to legislate from agents who are opaque on their fees to be used to before we have concluded the review and have determined tackle rogue agents where they exist, thus continually whether, and precisely what, action is needed. driving up standards in the industry. I beg to move. I am sure that his amendment has been prompted in part by the opportunity provided by the Bill. However, I hope I can offer some reassurance that, were we to go Baroness Hayter of Kentish Town: I rise to say “well down this route, we believe that we could do so via done”. I should warn the Minister that we will have secondary legislation under Section 2(2) of the European other amendments on letting agents next week. However, Communities Act 1972. My noble friend should be we are very pleased that this will be in the legislation reassured that I have passed his amendment to the and that it will happen early, by the extra resources, officials conducting the review and that Ministers have and by the incentive for local authorities to take met today once again with representatives from the action, given that they will be able to retain any fines British Brands Group to discuss these matters, as levied. I realise that that is the end of her political the noble Viscount, Lord Younger of Leckie, did in career, having had praise from me, but so be it. the past. I would ask my noble friend, on behalf of the noble Lord, Lord Clement-Jones, to withdraw the Baroness Neville-Rolfe: Before the noble Lady sits amendment. down, perhaps I can say thank you to her. Lord Stoneham of Droxford: I thank my noble friend for her comments. I apologise for interrupting, Amendment 58 agreed. but I am grateful for the assurance that she will come back to us on Amendment 57A and its implications. Amendment 59 agreed. GC 475 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 476

not help protect the consumer when grading food Amendment 60 preparation and catering premises for food hygiene Moved by Baroness Bakewell of Hardington Mandeville certificates. During the summer, I spent a day out with 60: Schedule 5, page 80, line 11, after “may” insert “on an environmental health officer. We visited a care production, if required, of his credentials,” home for the elderly which was anxious to increase its score from four to five, which is the highest rating. The visit was unannounced, but the home had requested a Baroness Bakewell of Hardington Mandeville (LD): rescore. The reason for the score of four was mainly to My Lords, I will speak to Amendments 60, 61, 62, 63 do with the preparation of paperwork and flow charts, and 63ZA. As noble Lords know, my noble friend not the cleanliness of the kitchen or the temperature at Lord Clement-Jones is elsewhere so I am standing in which the food was stored. I am sure that noble Lords for him. will agree that food hygiene in a care home for the frail The first group of amendments deals with powers elderly is extremely important. I was able to see the of entry for enforcement officers. While there is some food being prepared, stored and served to the residents. logic to giving advance notice of inspections by trading All of them had a choice of food and the menus ran standards officers, I do not believe that will work in for a month before being repeated. It was very reassuring favour of consumers and businesses in all cases. There that despite having to be in an institution, the residents are a number of situations in which the exemptions for were consulted about what they would like to eat and giving notice cannot be sustained and are likely to their special diets were catered for. Our unannounced cause confusion and uncertainty about whether an visit was successful and the home was told when we officer has to serve notice before an inspection of a left that it would now get its treasured five rating. business they believe is in breach of legislation. We then went on to visit premises where the officer The horsemeat scandal has caused the European had provided advice and support to two new small Commission and the consumer to voice support for businesses starting out in the food industry. One more unannounced inspections. Reviews of food safety comprised a man in his 20s entering the specialist beer powers have left powers of entry for trading standards brewing market and the other was made up of two officers untouched after concluding that the use of ladies starting a lunch and sandwich business close unannounced inspections is proportionate to the risks to a railway station and an industrial site where involved. The assumption is that consumer protection previously there had been no catering outlet. Once the against unsafe products, including dangerous electrical businesses were up and running, they would get goods, involves less risk. I question that assumption. unannounced inspections in order to be given a food Evidence from members of the consumer association hygiene grade. Both were aware of this and both Which? suggests that many authorities are already welcomed it. following an intelligence-only approach. They use powers We also visited a public house which the council, of entry only where there is good evidence to suggest together with the police, had prosecuted, having previously that a breach has occurred. Many businesses suggested served several improvement notices without success. that they value unannounced inspections, both for The photographs of this establishment were truly horrific their own businesses and their competitors. The need and proved that what the consumer sees in the bar or to give notice is questionable if it will do little to dining room of a restaurant is not what goes on change existing practices and add little to the system. behind the scenes in the kitchen. Mercifully, such Although Which? welcomes the new provisions to give instances are rare. consumers redress, help them make better choices or prevent businesses from creating further harm, it has A catering establishment which has been awarded a concern about how many authorities will actually take grade four or five will have the certificate displayed on up such provisions, due to the complex nature of the the door as you enter. Those which have received a processes, costs and risk to the enforcer. three or below will not have it displayed anywhere In the criminal courts, enforcers can be liable for since there is no requirement for them to do so. The the defendant’s costs only in limited circumstances; for officer who took me out also had on his patch Yeo example, in the event of the enforcer acting improperly, Valley yoghurts and a massive Dairy Crest processing negligently or unreasonably. We all know that in the plant on a farm. He said that of course he gave notice civil courts the loser generally pays the winner’s costs. when he went to visit them because he wanted to meet That could act as a disincentive to enforcers who are the managers and those who could give him the answers acting in the public interest. Perhaps now is the time to he required. He accepted that they were very busy have the same protections for enforcers in the civil people and did not wish to waste either his or their courts as in the criminal courts. If the legislation puts time. However, if when he went on his planned visit he the onus on the enforcer to prove that the cost of found something that he felt was unsatisfactory, he redress does not exceed the cost of the harm, it will would then make an unannounced inspection at a add to an area of possible challenge and could encourage later date. Noble Lords will be pleased to know that enforcers to use the criminal route instead. A more this did not happen in either of the two cases I have balanced approach is needed whereby the business mentioned. proposes a package of measures to the enforcer or the I am seeking an assurance from my noble friend the court and that is negotiated as necessary. Minister that the businesses I have described are not Amendment 63ZA is a probing amendment. I was included in the requirement to give advance notice of contacted by environmental health officers who are inspection. To do so would mean that the unscrupulous concerned that the need to give advance notice would would have a clean-up prior to the inspection but a GC 477 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 478 week later would revert to their normal practices. I do things first but with no added advantage. That seems a not believe that this would be in the best interests of or convoluted way of saying that they do not like the protect the consumer. I beg to move. present clause. There seem to be two things going on here. First, in 6pm moving the amendment, the noble Baroness, Lady Baroness Crawley (Lab): My Lords, I thank the Bakewell, said very strongly that she supports noble Baroness for her interesting description of going unannounced inspections—which is exactly what is out with local authority officers. I would recommend said in the amendment of the noble Lord, Lord Best. that experience, as I am sure she would, to all Members Secondly, she raised the interesting point about costs of the Committee. Environmental health officers do in civil courts, which we will come on to. I look an extraordinary job, given the scale of the work they forward to her support for that amendment when we are involved in and the scarcity of the resources they get there. My concern about these amendments is not have to work with. that they would not move a little way towards making The amendments in the names of the noble Lords, life easier but that they are actually a rather weak way Lord Clement-Jones and Lord Stoneham, and the of telling the Government, “We don’t like your clause”. noble Baroness, Lady Bakewell of Hardington Mandeville, are to be welcomed—I think. I am sure they are a Baroness Neville-Rolfe: My Lords, I thank my noble sincere attempt to bridge the gap between the friend Lady Bakewell for her very interesting comments Government’s stance on enforcement and the rather and good examples. They help us to understand so more clear-cut and preferable amendment of the noble much more clearly the issues that we are debating. Lord, Lord Best, which we will discuss in a few moments. However, I am not yet persuaded that these amendments In this part of the Bill we are consolidating and best the amendment of the noble Lord, Lord Best, on updating our investigatory powers in order to make the same subject of trading standards officers conducting enforcement more efficient and effective. A further inspections on business premises. I am sure it was not objective is to reduce burdens on business without at all the intention but these amendments might compromising consumer protection. We are doing unfortunately bring about increased barriers to this, for example, by making it easier for enforcers and enforcement for officers conducting inspections. For businesses to know what enforcers’ powers are by me, the jury is still out on these amendments. consolidating them across 60 pieces of legislation and setting them out in one place. I think that the Committee will welcome this. We are also modernising them— Baroness Hayter of Kentish Town: I am slightly clarifying that where there is a good reason enforcers confused by this. If I am completely honest, among can access information held or stored on computers. friends and just within these four walls, I think our Lib This brings us into the 21st century. We will return to Dem colleagues would very much like to support the the notice requirement again under the amendment of amendment of the noble Lord, Lord Best, but are not the noble Lord, Lord Best, and I expect that we will allowed to. They do not want to confront the Government have a fuller debate. so they are trying to find a weasel way of not quite confronting them while almost writing down exactly I want to say a few words about why we have the same words but making it very complicated. They introduced the requirement for enforcers to give two are not going the whole way but saying, “Well, in days’written notice, subject to some important exemptions. certain circumstances other than those already allowed The Government are committed under the Protection for in the Bill, the 48 hours would not have to be given; of Freedoms Act 2012 to protect civil liberties and to that is, when a trading standards officer shows his or reduce burdensome and intrusive powers of entry. Our her credentials and if they are going to see whether an aim is to strike a balance between the powers and offence has taken place”. safeguards that are needed for protecting businesses I am sure that the noble Baroness, Lady Bakewell, while ensuring that enforcers can tackle illegal activities. knows that trading standards do not go around in I am sure that we will come back to the detail. policemen’s big boots unless they think some offence I will answer a couple of points that my noble is being committed. They do not have the time or friend raised. She asked about notices and litigation, inclination—why on earth would they? They always and court cases being lost on a technicality. As is show their bona fides anyway. This basically seems to currently the case, enforcers will need to ensure that be saying, “We don’t like what the Government are they follow correct investigatory practices and procedures suggesting but can we find a way of saying that to ensure the integrity of their investigations and round the back?”. I could be quite wrong—and supporting evidence. We will not be amending the well look forward to being corrected—but I have my developed principles on what amounts to reasonable suspicions. grounds for suspicion. Many large businesses have a Of course, the problem with these amendments is primary authority relationship with a local authority. that they have all the disadvantages of the Government’s This includes an inspection plan. Where an inspection own clause; that is, the uncertainty. The same people plan is in place covering consumer law, this must be do food as do electricity safety, counterfeit booze or considered when deciding whether to carry out an whatever else one is looking for. The amendments inspection. We are committed to providing good guidance would still introduce two systems for when somebody on what the law means; as noble Lords would expect, could go in to do an inspection. It leaves all that that is being developed by business and other complication and uncertainty of having to checklist organisations. GC 479 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 480

[BARONESS NEVILLE-ROLFE] Baroness Bakewell of Hardington Mandeville: I thank My noble friend also touched on the fact that my noble friend for her comments and I am slightly enforcers risk costs in the civil courts. I reiterate that it reassured. I am grateful for the reassurance that food is a fundamental principle of civil litigation that one hygiene certificates are not covered by this legislation side is at risk of having to pay the other side’s costs if it but are covered elsewhere. I know that environmental loses. That would be a difficult principle to change. Of health officers will be reassured because they were course, the object of that is to deter unmeritorious extremely concerned about how they were going to cases and ensure that the winning party is not too operate if they had to give notice. adversely affected. With regard to competition versus the consumer’s Amendment 63ZA, on the issue of whether food rights and businesses generally, I thank my noble hygiene visits are covered by the Bill, is a probing friend for her comments. I have to say that I am not amendment. There may be confusion in general as to totally convinced but I beg leave to withdraw the whether food is covered by the Bill so it is good to have amendment. an opportunity to clarify the position. For example, the Bill does not apply to food hygiene inspections Amendment 60 withdrawn. carried out under the Food Safety Act. That sort of inspection is normally done by environmental health Amendments 61 and 62 not moved. officers. I should add that, curiously, I was the official Civil Service lead on that very Bill; I remember it with great affection. It was an important Bill at the time. In Amendment 62A view of those alternative provisions, we do not see the Moved by Lord Best need for this probing amendment. 62A: Schedule 5, page 80, line 14, leave out sub-paragraphs (3) On the lessons that horsemeat might give us for this to (11) Bill, the issue arose mainly through fraudulent activities of traders. That highlights the importance of greater Lord Best: My Lords, I declare my interest as a sharing and use of intelligence sources, and how important vice-president of the Trading Standards Institute, a that is in safety. The Bill supports the sharing of post I occupy because I chair the council of the information and intelligence by local authorities, business Property Ombudsman, which works with trading and other partners such as the police. That can be used standards in relation to the world of estate agents and by enforcers to determine whether it is necessary to letting agents. I greatly welcome the Minister’s earlier exercise a power of entry to premises and whether one announcement on fees. I also declare my interest as of the exemptions to giving notice applies. president of the Local Government Association. On Amendments 60, 61, 62 and 63, tabled by the The TSI welcomes the Bill and applauds the noble Baroness, Lady Bakewell, it is worth noting that Government’s efforts to simplify and clarify consumer currently enforcers such as the Competition and Markets law. The real problem for the trading standards service Authority, which has been referenced often today, is the startling decline in its manpower and budgets. have to give notice only for civil enforcement purposes. Over the lifetime of this Parliament, the workforce The amendments take us back to that position. However, will fall by almost half and budgets will be cut by an when an enforcer decides to carry out a visit, they will average of 40%. These reductions mean that we all not necessarily be focusing on whether civil or criminal face greater risk at the hands of rogue traders. New enforcement action may result. We therefore think it legislation needs to strengthen the hand of the remaining makes more sense to provide a general requirement for trading standards officers rather than in any way notice to be given regardless and then provide a number undermine their good work. of clear exemptions to giving notice, such as where There are two areas of concern to the TSI in this giving notice would defeat the purpose of the visit regard. This is the first of two amendments in my because, for example, counterfeit or illegal software name seeking to rectify these. I am grateful to the might be destroyed. noble Baroness, Lady Hayter, for adding her name to I am also keen to emphasise—we will come back to this amendment and already speaking in support of it. this—that this means notice need be given only for I am grateful also to the noble Baroness, Lady Crawley, routine inspections. If there is a risk of a breach of a for doing likewise. law, enforcers can still carry out unannounced inspections where they need to investigate illegal activities. The 6.15 pm exemptions ensure that we have the safeguards we Amendment 62A seeks to remove the controversial need. Small businesses in particular, which have been new proposal in Schedule 5 that would require trading consulted about the changes in the Bill, welcome this standards officers to give at least two days’ notice approach. They welcome clarity, and the noble Baroness, before inspecting premises. At present, officers—usually Lady King of Bow, emphasised the importance of acting on a tip-off or other intelligence—are free to that earlier. make unannounced inspections of businesses that come I believe that the Bill provides a better and simpler within their jurisdiction. enforcement regime for both businesses and enforcers, At first sight, this new requirement would appear to whether civil or criminal enforcement action is involved. make a mockery of efforts to uncover wrongdoing: Hygiene and food inspections are dealt with elsewhere providing plenty of time to hide incriminating evidence in the statute book. Therefore, I ask my noble friend to sounds like a rogue’s charter. I do not imagine that the withdraw the amendment. police would welcome a duty to give 48 hours’ notice GC 481 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 482 before knocking on the door of a suspected criminal. It is interesting to note that Ofsted, following a In reality, the proposition in the Bill is not quite as period of only carrying out school inspections after daft as that. First, as we heard from the Minister, it giving notice, has recently reverted to unannounced excludes action connected to food safety. The Minister visits following the high-profile cases in Birmingham, made it clear that trading standards officers can make and, of course, the public has demanded that the Care unannounced inspections relating to food safety of Quality Commission make spot checks of residential supermarkets and high street shops, in parallel to their care homes to ensure that they are meeting the necessary environmental health colleagues inspecting abattoirs, standards. Therefore, in other fields where inspections food processing plants and so on. After the recent of premises are required, there is no argument about horsemeat scandal, to which noble Lords have referred, the merits of these being unannounced. everyone understands that unannounced visits relating We are all supportive of efforts by BIS to reduce to food standards and food safety are important. bureaucracy, but this measure would undermine an However, consumer protection is not only about important service and it would add a layer of extra food. What about shops believed to be selling alcohol form-filling and administration created by the need to under counterfeit labels? Such products are known issue—according to the Government’simpact assessment— often to contain methanol, which can cause blindness. nearly 7,000 notices of intention to inspect each year, The illicit trading of cigarettes under counterfeit labels at considerable extra cost to a service with serious also represents a health hazard. Trading standards budgetary constraints. Amendment 62A seeks to remove officers need to be able to look under the counter, go from the Bill a measure which could undermine a vital to the back of the shop or inspect the warehouse service already seriously overstretched. I beg to move. without giving 48 hours’ notice. What about the sale of unsafe goods, perhaps from a market trader? There was the terrible example in May of this year of a Baroness Crawley: My Lords, I rise to support the house fire in Sheffield caused by a faulty electrical amendment in the names of my noble friend Lady charger, which killed five people. What is sensible for Hayter and the noble Lord, Lord Best. This amendment food safety is surely sensible for other areas where proposes that the requirement in the Bill for trading consumers need protection from traders intent on standards to give 48 hours’ notice to businesses before ripping them off. entering their premises be removed. In supporting this amendment, I remind noble Lords that it is my privilege Secondly, there are let-out clauses in paragraph 23 to be the current president of the Trading Standards of the schedule that say that an officer need not give Institute. I refer noble Lords to my entry in the register the minimum two days’ notice if the officer, of interests. “reasonably considers that to give notice … would defeat the Let us be clear: the power to enter business premises purpose of the entry” remains but the Bill introduces a new safeguard requiring or, written notice to be served before entering. Because of “reasonably suspects that there is an imminent risk to public the strong response to this highly controversial proposal health or safety”. from the enforcement profession, there is now a list of exemptions to this new proposal from the Government. Those exemptions would seem to negate the new process However, I believe, as do several other noble Lords, in a large number of cases, since the purpose of the that these exemptions will only lead to confusion and entry is very likely to be the detection of a failure to the possible introduction of overcautious behaviour adhere to required standards, and that purpose would on the part of the trading standards profession, which be defeated by giving a period of notice of the visit. is already seriously stretched. It will also lead to If these let-out clauses are intended to give trading increased financial and judicial burdens, as outlined standards officers proper discretion in deciding whether by the noble Lord, Lord Best. to give advance warning of their visit, are they really I remind noble Lords that the budgets of trading serving any purpose in the Bill? At present, where standards departments at local government level have trading standards officers want to visit in order to give in some cases seen cuts of up to 86% since 2009. While good advice to a responsible business, they will already the Government have listened and made some changes make an appointment. Therefore is the proposed new to the Bill, the Trading Standards Institute does not requirement really pretty harmless? The trouble is that believe that those changes yet strike the right balance, if and when the trading standards officer takes a which the noble Lord, Lord Best, talked about. It is trader to court, arguments seem inevitable over the essential that we achieve that balance between the interpretation of these let-out clauses. When is a risk right to carry on a business unimpeded by officials to public health “imminent”? Would giving notice and the right to protect consumers. really have defeated “the purpose of the entry”? How It is not the case that all businesses are clamouring do we define “reasonable”? And so on. for the removal of unannounced visits. In a recent The two days’ notice period, therefore, is likely to edition of The Grocer, the chairman of a large cash- raise legal arguments, create uncertainty and give succour and-carry business in the north-west stated: to those seeking to disregard consumer rights. In “It is independent retailers saying that local authority test today’s risk-averse world, many officers will feel they purchasing is less effective if there has to be 48 hours notice of a must back off from making unannounced inspections— visit.” even where shocking cases of bad behaviour are Many retailers welcome spot checks because they want suspected—for fear of offending the proposed new to see a level playing field in the high street and with rule. larger retailers. GC 483 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 484

[BARONESS CRAWLEY] exclusions in paragraph 23(5) of Schedule 5. However, Last week I spoke to a trading standards officer as the noble Lord, Lord Best, suggested, they pose a about food fraud in the light of the very important whole series of new potential problems. For example, Elliot report into the horsemeat scandal, which the the power of entry is to be exercised by an officer Minister has referred to. She told me that while checking when, one of those large storage units that are so prevalent “the officer reasonably suspects a breach of the enforcer’s legislation”. nowadays—we seem to have a lot of things to store in What does “reasonably” amount to in this case? I have our lives, do we not?—she came across a unit that was seen how litigious some of the people against whom being used to cut up some kind of raw meat. This was enforcement action has been taken can be. They will a unit that was usually used to store furniture; it had string things out and argue abuse of process. The more no running water or utilities necessary for processing serious the case, the more they argue. The litigious will meat. The trading standards officer had the unit closed say that there were no “reasonable” grounds. What is down immediately. She was able to close it down under going to be the basis of the reasonable suspicion? All the Food Safety Act—which the Minister has also of this will have to be defined and the danger is that referred to—because, unlike this proposed legislation that will lead to litigation which takes up more time being brought forward under BIS, food fault is an area and generates more problems as a result. where spot checks are still allowed: 48 hours’ notice is not required. Had that unit been processing highly If the officer reasonably—that word comes in again— dangerous electrical goods—such as in the tragic case suspects that there is an imminent risk to public health of the phone chargers to which the noble Lord, Lord or safety, that is fine, but that is about public health Best, referred, or the hair straighteners that I have seen and public safety. Other issues may arise where the in trading standards offices and which can be very evidence will disappear. What is it that is being gained detrimental to health when they are criminally by these changes? The whole point of having the produced—she would most likely have had to give power of random inspection is not just to find something 48 hours’ notice. No doubt she would never have seen on the occasions when a random inspection is made, it the rogue trader again. is also the deterrent implication for all those who the inspector may or may not visit. There is a chance that Life is hard enough for the seriously overstretched they will be inspected, something will be found and trading standards service—which still does a magnificent the consequences will flow. If that is taken away, job on behalf of the public—without putting another frankly, one of the most effective deterrent mechanisms bureaucratic obstacle in its way. Such an obstacle as far as these issues are concerned will be lost. could only allow rogue traders to prosper, damaging legitimate businesses—which are, of course, the vast majority of businesses in this country—and diminishing 6.30 pm consumer protection. We have to ask what this is all about. I rather Before I sit down I would like to ask the Minister suspect that at some point during the high noon of the where the evidence is that these inspections interfere deregulation zeal of this Government, some business with or hamper the operation of a business. The recent organisation was asked to list all the things that might Elliott report on food fraud highlights the value of conceivably irritate businesses at some point. This, unannounced inspections, so why are the Government along with a number of other things, was on the list. It moving away from them in this Bill? The amendment then trundled along as we went on. When it was of the noble Lord, Lord Best—which is also signed by initially proposed, there was quite properly an uproar my noble friend—denotes the line between the honest of protest with people saying, “This is nonsensical”. business and the hard-pressed consumer on the one Civil servants in BIS, being good civil servants, have side, and the rogue trader on the other. I call on noble come up with a way that tries to ameliorate the situation. Lords to support this amendment. They have come up with the exceptions as set out in this schedule. But the reality is that by creating these Lord Harris of Haringey: My Lords, I repeat my exceptions, they are raising the possibility of legal declaration of interest as chair of National Trading challenge. If they are so effective and so all-embracing, Standards. Will the Minister tell us what exactly is the why do it in the first place? If in practice what we are problem that the clauses we are debating now are there being told is that when an officer, to solve? What is the evidence that this has been a “reasonably considers that to give notice in accordance with this power that has been abused or misused by trading paragraph would defeat the purpose of the entry”, standards departments? If she can give us chapter and means that trading standards officers can inspect when verse today, I would like her to do so but, if not, I ask they want to because if they gave notice it would her to lay in the Library all the complaints that the defeat the purpose of a random inspection, all that we Department for Business has received on this specific have created is a legal circle. point. It is not clear to me that this has ever been a I am happy if the advice from BIS is that random significant problem or burden on anybody. inspections are therefore permissible because of We have to recognise that, certainly as initially put paragraph (5)(c) because it would defeat the purpose forward, this proposal was a complete nonsense. It of random inspections to give notice. But if that is the was essentially saying: if you were a rogue trader who case, why was the power taken away in the first place, had something to hide, you would have 48 hours to thus making the rather silly requirement of 48 hours’ make sure that it really was hidden before the trading notice necessary? Perhaps the Minister can give us the standards department came around to do an inspection. precise circumstances. In how many instances does she Since then, we have made some changes which are the anticipate that these various exemptions will be triggered? GC 485 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 486

Does she in fact envisage that most inspections will be stopped from trading or fined for what they are doing, permitted without notice on the basis of paragraph (5)(c) but who see an opportunity for wriggling out of it or does she expect that most businesses will be given with a claim that the process was not right and that 48 hours’ notice? We need to understand what the there was not enough evidence and intelligence for the rationale is behind this. trading standards officer to make a reasonable judgment Much has been made of the fact that, thank goodness, of this nature. this does not cover food. The reality is that in some local authorities it is the same officers who inspect for Baroness Hayter of Kentish Town: My Lords, at food safety as for electrical safety and other matters. Second Reading and at the start of this Committee I You might visit a shop that sells a bit of food as well as said that this was not a bad Bill, it is just a weak one. all sorts of other goods, some of them perhaps dodgy I also said that there was one exception, and this is it. imports of electrical goods and so on. The officers I hope that when the noble Baroness replies, she will make the random inspection because there is a potential allow herself—using what is probably not a very food safety issue; there is food in open cabinets. However, Hansardian term—some “wriggle room”. The debate they are not allowed to look at anything else, so they we have already had will be loud and clear at Report. have to come back on a separate occasion with 48 hours’ The Minister will know better than me how well this notice to inspect the same premises. I ask the Minister could come across in the House. It would perhaps be to defend the sense in this. It means that the business is much easier to withdraw gracefully rather than to try disrupted twice and that the limited resources of the to fight to the bitter end. As I have offered to Ministers local authority officers have to be deployed twice. In before, we will give them all the credit and say what addition, a notice has to be issued. wisdom they brought to it, although we will allow the While the officers are inspecting the open tray of noble Lord, Lord Best, some credit. food, they notice on display or perhaps more significantly It is a nonsense—I do not know who used that in a box behind the counter they have gone behind in word before—to require trading standards officers, order to make their inspection, food that is just as who work to protect consumers, to warn traders of an dangerous. They cannot take any action on that box inspection visit. My noble friend Lady Crawley asked because it would be an abuse of process. Does that what evidence there is of misuse and my noble friend make any logical sense? I suspect that it does not. Lord Harris asked what the problem is that this has been set up to solve. I will add three more questions. The Government are building in extra work for First, what is the benefit of this measure to consumers? small businesses and for local authorities at a time Secondly, who asked for it? Thirdly, what consultation when they are facing substantial cuts. The noble Lord, took place? Before anyone jumps to the 2013 consultation, Lord Best, referred to the TSI survey and the fact that which I have read very carefully, I would remind the trading standards departments have faced reductions Ministers that businesses were mixed in their responses of between 40% and 50%. I met a regional group of and were not unanimous. Only some of them supported trading standards officers last week. I have referred in this notice. Some of them said it would lead to better passing to the Trading Standards Institute survey. One co-operation between enforcers and businesses, but I after another the officers said that they did not really thought that enforcers were meant to act on behalf of like the survey because it presented an average figure consumers rather than work too closely with businesses. across the country and it did not give the picture in their region. The reductions in their region were far The consumer reps who responded to the consultation worse than what was recorded in the survey. were worried that giving notice would hamper enforcers’ ability to tackle rogue traders. There were three categories. We still have not seen the further impacts of another The third category, comprised of local authorities and huge round of local government cuts that are coming regulators, was similarly concerned about the requirement in over the next two or three years. I was discussing to give notice before exercising a power of entry as it cuts with a local council leader a few days ago. If any could encourage the obstruction of officers or hinder more cuts at all are made to the trading standards an intelligence-led approach. Local authorities and department there, there would be absolutely nothing regulators also commented that on-the-spot checks left; there is no more to cut. Under those circumstances, would be necessary where there was intelligence about how on earth can it be right to be imposing additional non-compliance, but of course, some of that intelligence bureaucratic burdens on these departments to carry could never be used in a court of law. If challenged in out a job to protect the public? the way we have heard either over costs or whether it I hope that the Minister will cut her losses on this was reasonable, there would be times when a trading clause and on trying to have a 48-hour notice period. I standards officer would not be able to cite the intelligence hope she recognises that these things should be left to that led him to that particular retailer. It is true that the sense of trading standards authorities. They will the respondents supported the restriction on powers, be so busy anyway that they will not randomly victimise but that was in relation to private dwellings, and that is people just for the sheer joie de vivre of saying, “Let’s not what this whole issue is about. harass a small trader”, because they have nothing While the Minister tries to find some more persuasive better to do on a Tuesday afternoon. This is not what answers to the questions posed today, I will make a it is about. The reality is that the Government are couple of extra points. Even with the let-outs mentioned imposing extra responsibilities and requirements that by my noble friend Lord Harris, it still makes no sense make no sense in practical terms. They will simply to give notice to those who are potentially breaking take up time and create an opportunity for legal the law about when enforcers are going to check on challenge by people who should quite properly be them. As we have heard, food safety officers do not GC 487 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 488

[BARONESS HAYTER OF KENTISH TOWN] the speed limit”. The letter goes on in similar terms have to do this, although very often they are the same and urges very strongly that this provision should be people. It is hard to know why they should have to do removed. so here. As we have just heard, it is difficult for the I know that the noble Lord, Lord Blencathra, who very same person to need to have different criteria in is not in his place, responded to a similar letter from their head and different lots of powers depending on this group, agreeing completely with its views. He which breach they are trying to check up on. pointed out that: “We did a report on tobacco plain The Government have said—certainly to us, but I packaging last year and there was very telling evidence am not sure if in public—that a trading standards of massive tobacco smuggling amounting to billions. officer can always enter the premises as a member of While there are many inspections of businesses which the public. That way, they can see what any ordinary I believe are excessive, there is no justification for shopper could, assuming it was a retail rather than giving 48 hours’ notice of an inspection of a tobacconist’s wholesale area. However, I have to tell noble Lords shop. It is not as if it is an intrusion into your personal that retailers do not keep the counterfeit drink on top; home”. they keep it underneath for those who come in with a What is serious for consumers is that there are likely nod and a wink. They do not put counterfeit cigarettes to be fewer inspections by trading standards authorities out on top either. They are put where a member of the because local officers are bound to become risk-averse public could not see them but where, on our behalf, we where they have to articulate, document and be able to want trading standards officers to be able to see them. prove in court what their evidence was for suspicion of The Government have also argued that this amendment malpractice. It is something that they may not be able would help small businesses so that they are not to do and it will make them risk-averse. They know troubled by too many visits from the TSO. However, that a challenge in court could cost their local authority trading standards officers these days work very much enormous amounts of money, which we will come on on a risk-based programme. Having looked at some of to later. the detail behind that, small businesses are actually We are talking here about checks against the sale of very low risk. One TSO said, “We never go to small dangerous goods such as flammable mattresses; sales businesses”. Please do not tell small businesses this, to underage children; sales of alcohol to people already but actually TSOs go to the big ones much more inebriated; sales of fake jewellery or household goods; because they work on a basis of risk. The idea that one estate agent misbehaviour and misleading advertisements. should constrain the powers across the piece because There is no one but trading standards to protect us, apparently some small businesses do not like it is the consumers, so why do the Government want them worrying. to do their work with one hand tied behind their back? Another issue, of course, is that wanting 48 hours’ notice in writing still does not allow the trading standards officer to politely phone or text to say, “Can I come on Baroness Neville-Rolfe: My Lords, I thank the noble Tuesday?”, which may well be what is best for the Lord, Lord Best, for provoking a wide-ranging and small trader that the Government seem to be worried thoughtful debate. As I mentioned in respect of the about. It would anyway be perfectly possible for a previous amendment, we are consolidating and updating trading officer to give notice; it is only the absolute consumer law investigatory powers in order to make requirement that we are worried about. Good practice enforcement more efficient and more effective. I will would be, for many routine visits, that notice would be try not to be too repetitious of that debate, but I will given for exactly the reason that has been given: so repeat something I said in earlier sessions of this that the right person is there. None of this would Committee: I feel strongly that trading standards officers prevent that. around the country do a very good job. I have dealt with them a lot over many years and I am very grateful for the work they do. 6.45 pm The Government are keen to support the honest We should also note that many small firms do not trader and to tackle the rogue, so there is a joint and like competitive retailers undercutting them by being agreed objective in these areas. I am going to speak at able to sell counterfeit cigarettes, booze or anything some length, for which I apologise in advance. I hope else. In fact, we have been urged by the tobacco that noble Lords will realise that our heart is in the retailers’ organisation to push this amendment because right place and we are trying to do the right thing in it knows jolly well that the trading standards authorities this area. As I have said, we are consolidating and need their existing powers to be able to crack down on simplifying consumer law investigatory powers across the sellers of fake cigarettes and those who are selling 60 pieces of legislation, setting them all in one place. to underage children. The national spokesperson for This variety of instruments can be a cause of confusion the TobaccoRetailers’Alliance, which represents legitimate and a burden for enforcers as well as businesses. We retailers who sell tobacco, has said particularly in view are also clarifying the law to make it easier for trading of its concern over tobacco smuggling that: “We were standards to work across their local authority boundaries disappointed … to learn that a … provision in this Bill in order to tackle the rogue traders who cause real will give a retailer suspected of selling smuggled tobacco harm to consumers and damage consumer confidence 48 hours’ advance warning of having their premises and reputable businesses. inspected. Frankly, this seems madness. It is like The noble Baroness, Lady Hayter, asked about giving drivers 48 hours’ notice of when the police what had happened with the consultation and about may be out on a particular road to catch those breaking the benefit to consumers. I can confirm that we did GC 489 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 490 have mixed responses, but the British Retail Consortium mentioned them—it is really difficult for compliant and the Federation of Small Businesses, which together businesses to see why they should be so disrupted represent a large number of small businesses, support when they are giving no cause for suspicion. the notice provision. Businesses in general welcome it Business disruption hits the bottom line. We estimate for reasons that I will come on to explain. It reduces that this measure would generate net savings to the the burdens and unnecessary costs that they are facing, economy of almost £50 million over 10 years. This net and those costs are in turn passed on to consumers in figure includes the savings to business as well as the a competitive market. The Government consider it costs and benefits to enforcers arising from a greater vital that trading standards and other consumer law degree of efficiency in inspection. enforcers can protect us from businesses that are Of course, I agree entirely that businesses cannot deliberately or inadvertently breaking the law. expect to have notice of an inspection when there is risk of a breach of the law. We have listened very Lord Harris of Haringey: I am sorry to interrupt carefully to enforcers’concerns on that: to local authorities, her, but can the Minister tell us why it is more costly regulators and trading standards officers, as I think for a business to be inspected without notice than it is was hinted at earlier in the discussion. Therefore, the to be inspected with notice? Bill provides a number of very clear exemptions that still allow enforcers to carry out unannounced inspections, as they do at present, where they need to investigate Baroness Neville-Rolfe: If the noble Lord would illegal activities and matters of urgency. I will go bear with me, I have an example which we can debate. through those and try to pick up the examples that While we share some common objectives, there are have been quoted in debates and which have obviously clearly real differences of opinion about how trading been concerning people. standards officers and other law enforcers should carry The first exemption would apply where an enforcer out their duties. The Government start from the principle reasonably suspects a breach, for example where the behind the Protection of Freedoms Act 2012, which sale of counterfeit alcohol is suspected or where a test aims to protect civil liberties and reduce burdensome purchase has been made and failed, e.g. on an age- and intrusive powers of entry. It starts from the simple restricted purchase. The noble Baroness, Lady Crawley, premise that an investigating officer should have good asked about access to warehouses and whether, if the reason for entering premises. This is really important officer suspects a breach, the exemption applies. Of because both as private individuals and as businesses course, that is particularly important in relation to we should rightly expect to be treated as law-abiding rogue traders and the same would be true of the unless there is a justification. The requirement in the example of the sale of counterfeit goods. Bill for enforcers to give two days’ written notice for routine inspections—I emphasise routine—flows from Lord Harris of Haringey: It is then reasonable for a this principle. However, we take very seriously the local authority to invoke that grounds of reasonable importance of ensuring that enforcers such as trading suspicion if, for example, it is clear to the trading standards can continue to tackle rogue traders. I am standards department in a small town that a certain sorry to keep repeating this but I think it is common form of counterfeit or dangerous goods is circulating ground, and I can assure noble Lords that we are and there are eight potential retailers who might be doing nothing to prevent enforcers investigating illegal selling it? Is it then reasonable for the trading standards activities—quite the opposite. department to inspect all eight? If it is reasonable to Let me explain in more detail why we have decided inspect all eight in that town, is it reasonable to inspect to require notice for routine inspections. Enforcers 200 in a city? currently have some very intrusive powers such as the power to enter commercial premises without a warrant Baroness Neville-Rolfe: In my opinion, that is reasonable to carry out their inspections. They can demand that if there is a suspicion—for example, if trading standards documents are produced and break open containers, officers have had some intelligence. There is an example and any person on the premises has to provide assistance I am coming to about cigarette butts, unless we cut and the information requested. Small businesses have that out. In relation to each of these exemptions, I am told us that unannounced inspections are burdensome trying to explain why they are generously drafted so and inefficient. In particular, the Federation of Small that we can do what we think is needed. Businesses is concerned about unannounced visits and The second exemption would apply where giving has said that booking inspections in advance will notice would defeat the purpose of entry, for example, allow the businesses to ensure the appropriate staff where an enforcer suspects that counterfeit DVDs are and paperwork are available. This ensures that neither being sold and the enforcer considers that the traders the trader’s nor the enforcer’s time is wasted in these in question are likely to conceal the illegal products if routine inspections. The owner or manager might be notice is given. The third exemption would apply visiting a supplier away from the premises, leaving a where it is not reasonably practicable in all the junior member of staff not equipped to deal with an circumstances to give notice, for instance because an investigator’s questions or to find the documents needed. officer reasonably suspects that there is an imminent Staff may be in the middle of receiving deliveries or risk to public health or safety. For example, enforcers busy dealing with customers or an important new may find evidence of illicit tobacco, such as stubs and client when the enforcer arrives. This can be disruptive papers, in the street near a couple of suspected outlets. and embarrassing for the business. While large retailers The enforcers need to act swiftly to remove it from may be able to cope more easily—the noble Lord sale. I know that illicit tobacco is a concern. GC 491 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 492

[BARONESS NEVILLE-ROLFE] later. What is sufficient for a suspicion of an individual A fourth exemption would apply where the enforcer trader? The officer has made a test purchase and now is carrying out market surveillance, for example to he has prima facie information to suggest that the check the safety of toys. Finally, notice need not be trader is up to something. That is straightforward and given where the trader has waived the requirement to no one would see any issues around that. However, I give notice so that agreement to an immediate visit is will come back to my example. It is known that always possible. We also carefully listened and have something is circulating in a town and it is likely that it already responded to the BIS Select Committee’s very has only been purchased from retailers in that town. Is sensible recommendation on this issue by simplifying that sufficient to cover all the retailers? Does that change the exemption for giving notice where that would if we are talking about eight retailers or 200 retailers? defeat the purpose of the visit. That is the second That is also possible. If it covers 200 retailers, that safeguard I referred to and I think that noble Lords would certainly reduce any concerns I might have, but commented favourably on that earlier in the debate. if it covers eight retailers, I would like to know what I have set out these examples to show that we really the cut-off number is. are only talking about giving notice for routine inspections. In my view, it is perfectly reasonable to do that and Baroness Neville-Rolfe: As my noble friend the Chief highly desirable. Routine inspections are where a business, Whip has just mentioned, you must have some sense such as a DIY store, may be operating properly without of proportionality. I think that I gave a clear answer to any significant breaches of legislation. Trading standards the question of eight retailers earlier and I stand by may consider them to present a risk simply due to the that. Once we get to 200 retailers, we could be in nature of the sector in which they operate or because slightly different territory.However, if there is a reasonable of the time that has lapsed since an inspection. Trading suspicion of a breach—although 200 premises seems standards officers have raised with us a number of to be rather an unlikely example— examples where they felt they would need to inspect without notice and, without exception, we were able to show how the powers of these wide-ranging exemptions Lord Harris of Haringey: I am sorry to interrupt could be used. the noble Baroness, but perhaps I may give a specific For example, another area which has been referred example. There is a suspicion about a dangerous electrical to in the debate is where an officer wishes to check fitting such as a plug adaptor which the trading standards whether petrol is being sold in short measures. The department has come across and knows is circulating officer can use the power to carry out a test purchase in the area, and those plug adaptors might be on sale and if that discloses a potential breach by the trader, in several hundred small retail outlets, local shops and he can immediately exercise a power of entry in order newsagents which sell a range of other things. Without to investigate. Another concern that was raised is being unreasonable about it, there might well be several when an enforcer comes across a new shop during hundred outlets in an area. It may be thought that the visits to other premises. I am happy to confirm that an device was such that it could kill someone, which enforcer can enter those premises immediately, using means that the test would be proportionately higher. the power to observe the business, or indeed he can That is what I am trying to get at. undertake a test purchase. If while on the premises he discovers that fireworks, for example, are being sold in Baroness Neville-Rolfe: I can reassure the noble breach of regulations—or mattresses, as one noble Lord on that point. There is of course another exemption Lord mentioned—the enforcer can make a test purchase. on the grounds of health and safety and I am absolutely If that discloses a potential breach by the trader, the clear that it would apply in that case. officer can exercise a power of entry immediately. 7pm Lord Harris of Haringey: Even for 200 shops. Baroness Crawley: The noble Baroness mentioned that when it comes to a new business, there would be a Baroness Neville-Rolfe: The officers would be looking power for trading standards officers to observe. What for a faulty electrical product that might be in circulation is meant by “observe”? Does it mean going behind the in an area; there would be a suspicion. That is exactly counter, as my noble friend Lady Hayter asked, or the kind of thing I am talking about. I am sorry, but I does it mean “observe” as if the officer was a member wanted to take the noble Lord through the examples of the public? In that case, it would hardly be worth in order to explain how the power will be used. walking in. Perhaps noble Lords will bear with me while I make Baroness Neville-Rolfe: It means observing as though another point about powers of entry. The powers that the officer was a member of the public, but obviously other law enforcers have when they investigate offences a test purchase can be undertaken. The officer can are of interest, and the noble Lord has raised one or speak to the trader and agree that there should be an two of those. The police have no general powers of exemption, in which case the exemption would apply. entry to commercial premises. They can enter a premises Moreover, if the officer suspects a breach, that also only with reasonable suspicion or a warrant. So there implies. is, if you like, a form of notice. Even with a notice requirement, enforcers such as trading standards will Lord Harris of Haringey: Perhaps I may press this have very substantial powers—more powers than the point a little because it is important and getting to the police, who deal with serious offences and serious root of the issue now might save the Minister time crimes. GC 493 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 494

A noble Lord mentioned Ofsted—a question I have a good job, and I think that better planning and asked, actually. For practical purposes, Ofsted does targeting can save money both for business and for give notice. It normally gives up to two working days’ enforcers. notice before a planned inspection to a further education In conclusion, it has been an important and good college—that is, a routine visit—but for schools, notice debate. I have listened. I have tried to explain where we is given by midday on the working day before the start are coming from in the way in which we have drafted of the inspection. But it also has the right, quite the Bill. I am trying to ensure that the investigatory rightly, to undertake unannounced inspections in cases powers in the Bill, modernised and brought together, of serious concern. strike the right balance between protecting civil liberties, The noble Lord, Lord Best, asked about interpretation. reducing the burden on compliant businesses and ensuring I assure the Committee that we will be providing that enforcers can tackle rogue traders. guidance. We are not creating principles such as reasonable suspicion. They are already well understood but obviously Baroness Hayter of Kentish Town: The noble Baroness we will need to explain them for day-to-day work. said that the balance is between civil liberties and business. Unfortunately, she did not use the word The noble Lord, Lord Harris, asked about evidence “consumers”. Perhaps I might leave her with three of the abuse of powers. This is not about abuse of questions. I know she will not be able to answer them powers; it is about reducing the burden on business now but they are extremely serious ones. First, she from intrusive powers of entry and protecting civil alleges that £50 million will be saved. I would like to liberties. It is about routine inspections, which, in my know how many visits are included in that £50 million. opinion, should be the subject of a warning. Where Secondly, as I understand it, test purchases can be there are reasonable grounds of suspicion, obviously made only in a retail outlet and someone would not be you can proceed immediately. I am a businessperson permitted to go into a warehouse or a wholesaler’s and I think business planning can have value in these premises to make such purchases. Thirdly, the biggest circumstances. worry about this issue is suspicion, as I mentioned. I was also asked how notice can be given. Notice How could suspicion be proved in a court of law if it can be given by post or e-mail to the occupier or by was the result of an anonymous tip-off? I am very leaving it at the premises. Actually, we have engaged content for her to write to the Committee on those extensively with the trading standards community while questions as I do not think that she has answered them formulating the exemptions. That brings me on to the this evening. point that a number of noble Lords have made about the funding of the trading standards service. Obviously, Baroness Neville-Rolfe: I thank the noble Baroness. spending and resourcing decisions are made by individual Perhaps she will also read Hansard on these points. We local authorities, which are better placed to make carried out an impact assessment and I think that the decisions about the enforcement needs of their £50 million figure comes from that assessment, which communities than central government. Like all parts I can certainly make available. I wanted to say that I of central and local government, the services have was going to mention consumers at the end because faced budget reductions in recent years. There is no this is the Consumer Rights Bill. It is important that point denying it; that is agreed. we have a deal that is good for all sides. There are various different pressures relating to investigatory As noble Lords know, the Government are committed powers. I have tried to explain the wider picture and to tackling the inherited budget deficit by making the parallels elsewhere. I am very keen that this should savings and trying to improve value for money for the be an effective part of the Bill, which is obviously taxpayer, and this is part of that effort. We greatly designed to modernise and improve both consumer value the work of trading standards to protect consumers rights and consumer enforcement. I therefore ask the from rogue traders and scammers, and we want to noble Lord, Lord Best, if he will consider withdrawing develop a better understanding of the impact it has the amendment. across the economy. That is why, in partnership with the Trading Standards Institute, we have commissioned Lord Best: My Lords, that was a powerful exchange a group of academics at the Institute of Local Government all round. Clearly, this is an issue of great interest and Studies in Birmingham to undertake research to build concern to your Lordships. I am grateful to the noble an evidence base on the impact, effectiveness and Baroness, Lady Crawley, who, among other things, efficiency of services, how improvements can be made, welcomed the fact that the Government have already what works well and how we can do partnerships. made a number of concessions along the way—that This sort of evaluation is really important in public needs to be on the record. However, she pointed out policy. that there are considerable costs involved for the trading I think I have pretty well finished. I was asked standards service because there is a lot of bureaucracy about the deterrence effect of inspections. We would involved in sending out 7,000 notices of intention to be concerned about the resource implications for inspect each year, and the correspondence that has to trading standards services where uncovering breaches go back and forth on all that. This is not a cost-free by chance is seen as an effective strategy for the new regulation. future, even on the basis that it has been useful in the I am grateful to the noble Lord, Lord Harris, for past. Targeting finite enforcement resources using calling into question whether there was a problem here an intelligence-led approach is a more efficient and that needed to be solved at all. He pointed out that effective strategy. I speak as a former businesswoman, this measure is bound to lead to endless litigation if we with experience of a pretty small business trying to do are not careful and made the important point that the GC 495 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 496

[LORD BEST] “( ) For the purposes of the enhanced consumer measures set ability of trading standards officers to make unannounced out in Schedule 7, the Secretary of State shall publish a review of visits is, in itself, a deterrent, and it is uncertain what the powers of Trading Standards Officers to consider— the world would look like if that deterrent effect was (a) the number of enforcement actions by Trading Standards removed. taken under the enhanced consumer protections set out in this Act, I am grateful to the noble Baroness, Lady Hayter, (b) any additional operational costs to Trading Standards for raising key questions. She asked what would be the Services associated with the new powers and procedures benefit of this measure to consumers and whether under sections 77 and 79 of this Act, and they would really benefit from it. She made the important (c) the establishment of a statutory minimum standard for point that an awful lot of unannounced visits follow all officers carrying out Trading Standards functions in anonymous tip-offs. Other traders know what is going any local authority and the role of a competent body to on down the road. They do not want to get into a fight set, test against, apply and monitor those standards.” over it but want trading standards to know about it. However, there is a difficulty with that information being used later in a court of law since it is important Baroness King of Bow: My Lords, I finally rise to but confidential information. I can see that that may speak to Amendment 63ZAA, in the names of my cause a problem in future. noble friends Lady Hayter and Lord Stevenson. This returns us to the issue of the enforcement landscape. The Minister provided reassurance under a whole The amendment would review whether the powers of series of headings, which was extremely helpful. We enforcement given in the Bill are adequate. Surely this have made some progress on these issues tonight. She is absolutely critical. paid tribute to trading standards officers, which I welcome, and emphasised continuously that this is I know we go in for a lot of hot air in politics—or about routine inspections only and that the legislation that is what we are accused of—but this Bill is a quite is generously drafted. We are reassured that suspicion good example of the detailed work politicians do to is good enough in these cases. If a suspicion of a improve things for people going around their daily breach in the law is enough to trigger a perfectly business. Yes, on this side we think the Bill could go legitimate unannounced visit, that covers an awful lot much further but still it is a good Bill. What an irony it of cases. However, it leaves unanswered whether it is would be if we lose hours and weeks of our lives really worth putting on statute this new regulation and putting this consumer law into place—although for the binding condition on trading standards officers if part of the debate on that last group I was worried less they are to be able to bypass it in an awful lot of about losing hours of my life as the will to live—but circumstances. the end result after all these words is that nothing To conclude, we have a lot of new and extra reassurance changes because trading standards officers do not on the record from tonight which is more than helpful. have the powers to enforce this law. Enhanced consumer Putting this in the Bill also seems rather heavy-handed powers and more flexibility are all well and good but when we know there will be guidance in any case unless we back them up with serious intervention following the legislation. Guidance not statute sounds traders might simply feel that they do not have to rather less of a sledgehammer to crack the remaining comply. nut after we have heard about the many exemptions Will all enforcers always be able to back up with and exceptions. With those words, and the thought legal action any threat of intervention and the use of that we might need to bring this back again, I beg enhanced consumer measures, which are after all designed leave to withdraw the amendment. to avoid legal action? Which? expressed the following concern: Amendment 62A withdrawn. “The threat of court action is not always sufficient to encourage traders to engage meaningfully in negotiations with enforcers Amendment 63 not moved. over remedies ... This risk is likely to be especially acute as enforcement budgets are streamlined”. Amendment 63ZA not moved. That is a quite nice way of putting it. Which? is Schedule 5, as amended, agreed. therefore keen to see, “enforcement mechanisms ... extended. This could include either Schedule 6 agreed. the ability for enforcers to impose monetary penalties or a simplified and streamlined court process”. Clause 78 agreed. This amendment takes the first step in remedying the imbalance between consumer protections on the 7.15 pm one hand and enforcement powers on the other. As we know, trading standards departments have undergone Clause 79: Enterprise Act 2002: enhanced consumer significant cuts yet they are supposed to enforce a vast measures and other enforcement array of legislation, apparently amounting to 200 pieces of law. For example, earlier on we discussed letting agents. Trading standards have to enforce whether Amendment 63ZAA estate agents are members of a redress scheme. Then again, we also heard today about their responsibilities Moved by Baroness King of Bow in other critical areas such as care homes. It will be 63ZAA: Clause 79, page 42, line 39, at end insert— very hard for them to balance those competing demands GC 497 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 498 but we know that they will have to go for those that Many trading standards officers have in the past travelled grab the headlines and also that carry more serious to countries around the world to share our best practice. risk. Ours is considered to be one of the finest services Given their reduced resources, is it realistic for us to globally. We should be proud of that. Therefore, I ask increase their responsibilities on the one hand while the Minister, who I know is a good supporter of having no overall idea of whether their powers are trading standards, to look favourably on my noble commensurate with their duties? Apart from anything friend’s amendment and not simply say that this is the else, it leaves the Government a bit exposed on the domain of local government and that therefore she is critical issue of ensuring enforcement. How can we unable to intervene. guarantee that trading standards have the financial capacity, never mind the legal capacity and expertise, Lord Harris of Haringey: My Lords, this is probably to use this legislation? The amendment is a sensible a helpful amendment from my noble friend. The reason measure which would help ensure consumer protection I say “probably” is that I am not sure that it is asking is actually enforced. I beg to move. all the right questions: it is asking two of the right questions, but I suspect that there is a third one as Baroness Crawley: My Lords, I support my noble well. One of the good provisions—which I actually friend’s amendment and her very important call for a think should be incorporated in all of the legislation government review of the powers of trading standards that goes through Parliament—is the one introducing officers, given the responsibilities inherent in the Bill. some mechanism for reviewing, once the legislation In the trading standards workforce survey of March has passed, how much the powers that have been 2014—despite the health warning on it from my noble granted to whoever have been exercised, whether they friend Lord Harris—a picture emerges of a service have worked, and so on, and what the cost has been. that is still excellent but is teetering on the edge of Paragraphs (a) and (b) here are very much a part of sustainability. Trading standards staff numbers have that. I would like to see those incorporated in every fallen by almost half in the past five years. Numbers of piece of legislation that we pass because it would be trading standards officers per service range from half helpful. I sometimes think that government departments an officer in one local authority to 48 officers in put forward these things and then nobody ever looks another, with apparently little reference to the population at them again until perhaps 20 years later, when there size of the areas they serve or the number of businesses is a Law Commission review as to whether anything in those areas. has actually happened. This would provide the raw material to see what happened. It is particularly critical The Minister has just spoken, in relation to the in this area because we know the extent to which previous amendment in the name of the noble Lord, trading standards departments are overstretched and Lord Best, about needing to be an intelligence-led in real difficulties. Therefore, it would be extremely service, particularly in the future. I applaud that but valuable to understand whether this has been yet what if there is no one left to gather the intelligence? another set of powers, duties and obligations placed We are seeing that in some places now. We all want a on them that they simply cannot cope with. service that is effective and capable of meeting current and future expectations in the Bill, in order to fulfil its The second important thing done by the amendment public safety remit and its consumer protection remit. is to try to set a standard for individual trading standards officers; to say essentially that there should Trading standards officers take great pride in their be a properly recognised qualification and describe work and they welcome the support that they receive how all that would work. That is also extremely helpful. from government. They want to make a full contribution The amount of law that trading standards officers are to economic growth, public health, environmental expected to enforce—I think there are 250 pieces of protection and safer communities but their depleted legislation and the number rises constantly—covers an numbers make that more and more difficult. In the enormous range of areas of activity and requires a workforce survey, more than 30% of trading standards degree of specialist skills. Some of them require authorities that responded mentioned stopping or limiting investigatory skills and financial skills in addition to several second-tier advice services to consumers. Nearly all that, so having some minimum standard as to what all respondents stated that service provision would be officers should do is helpful and useful. reduced, with most proactive work ceasing and some services providing only the statutory minimum. What the amendment omits is the minimum standard that our citizens—from whichever local authority—have The functions under threat in local authorities include the legitimate right to expect from local trading standards. underage sales work, intellectual property, food sampling What is the minimum level of protection that we can and animal feed. Non-statutory community projects expect from local trading standards? That is the area such as the no cold-calling zones, which have been where this amendment could be strengthened. Obviously, very successful, and trusted trader schemes, as well as if the Government accept this amendment today, there the provision of free business advice, are also at risk. would be progress and no doubt my noble friends Several authorities will be introducing a system of would then introduce an amendment on Report which responding only to complaints from vulnerable consumers focused just on this issue. Otherwise, if they bring it or those with very immediate risk to their safety. back, perhaps they could look at this wider issue as The trading standards service is centuries old. We well. This is important because there is enormous have recently been commemorating the trading standards variation between local authorities in terms of trading officers who gave their lives in the First World War. standards provision. GC 499 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 500

[LORD HARRIS OF HARINGEY] to extend the enhanced consumer measures to private As a former local government leader, I absolutely enforcers, we want to see how the measures bed in, and espouse the importance of local accountability, localism the experience of public enforcers using them, before and so on. That is an absolute principle, but there were deciding whether the use of them should be extended. plenty of areas when I was a council leader where, yes, Clearly, when deciding whether or not to extend the we had local discretion and espoused the principle of use of the measures, a key consideration will be how localism, but we were expected to achieve certain often they have been used and the cost to trading minimum standards. That is not the case as far as standards of using them. trading standards and consumer protection are concerned. The enhanced consumer measures represent a real It would be helpful to try to find some way to enable change in how public enforcers such as trading standards the Department for Business to look at whether there will approach enforcement. The measures will be was an acceptable minimum standard or level of trading innovative and far-reaching. We have already circulated standards provision in every local authority. I am draft guidance on using them to our implementation conscious that the level of provision made by local group for comment. authorities necessarily depends on their block grant. On the proposal to establish statutory minimum That is determined not by the noble Baroness and her standards for trading standards officers, if not the colleagues in the Department for Business, but by the service itself, local authority trading standards are Department for Communities and Local Government. required to have regard to the Regulators’ Code, which Consumer protection is one very miniscule part of is a statutory code of good regulatory practice. This that block grant. It would be in everyone’s interest— code makes it clear that regulators should ensure their particularly in the interest of all of us as citizens or officers have the necessary knowledge and skills to consumers—if there were some clear minimum standards support those they regulate, and that regulatory activity laid down. Perhaps some work done on the back of a should be proportionate and consistent. A post- small amendment to this Bill over the next year or so implementation review of the code was undertaken in would be extremely helpful in setting out what that 2012, and, following a consultation in 2013, an updated minimum should be. and simplified code came into force in April 2014. The Government have committed to monitor 7.30 pm regulators’ published policies and standards to ensure Baroness Jolly: My Lords, on behalf of the team I that they are consistent with the principles in the code. thank the noble Baroness, Lady King of Bow, for her There will be a post-implementation review of the kind words at the outset. revised code to check that it is operating as intended. In the meantime, the Better Regulation Delivery Office The enhanced consumer measures will give enforcers offers assistance to all relevant bodies to implement of consumer law greater flexibility to get better outcomes the provisions of the code. At a local level, we think for consumers. When there is a breach or potential that local authorities are best placed to determine breach of consumer law, the measures available to their officers’ competence. They will have a better enforcers can be limited. Prosecutions in the criminal understanding of local priorities, taking into account courts can lead to a fine or even imprisonment, while new models of delivery or collaborative approaches actions in the civil courts can stop the infringing with businesses and other neighbouring councils. conduct. However, neither option tends to lead to consumers getting their money back, nor does the As I have already said, the Government greatly person who has broken the law have to take positive value the work of trading standards and that is why we steps to put right the damage they have caused. have commissioned research on the impact and effect of trading standards on the economy, to build on the The enhanced consumer measures will allow public evidence base. The research will conclude in the autumn, enforcers to seek a range of innovative and positive and the outputs will inform future policy. I therefore measures in the civil courts, aimed at achieving one or ask the noble Baroness to withdraw the amendment. more of three outcomes: redress for consumers who have suffered loss, increased business compliance with the law or more choice for consumers. Measures must Baroness King of Bow: My Lords, I thank the be just, reasonable and proportionate. Once they have Minister for her reply and other noble Lords who have settled in, we expect the measures to lead to consumers taken part in this short debate. My noble friend Baroness getting around £12 million in redress annually. Although Crawley spoke powerfully about trading standards a business might be required to spend money in order services as they teeter on the edge of sustainability. to pay redress to consumers, to increase compliance or Anyone who has worked with them and followed their to provide information to consumers, a simple penalty trajectory over recent spending reviews and spending payable to the enforcer or to the Treasury would not rounds cannot help but feel that there is a bit of a be appropriate. chasm between what we are talking about in theory Turning to the amendment, and to answer the here—the laws that we want those trading standards points made by the noble Lord, Lord Harris, we have officers to promote—and the powers and resources already committed to a post-implementation review of available to them to do so, not least because, as my both the enhanced consumer measures and the changes noble friend pointed out, their numbers have been we are making to trading standards powers in the Bill. halved. Our impact assessments for both state that the policies If we are on the brink of ending current services will be reviewed three to five years after they comes and giving up on proactive work, it does not seem into force. In addition, when we introduce the power realistic that they may be able to make use of any GC 501 Consumer Rights Bill[29 OCTOBER 2014] Consumer Rights Bill GC 502 powers, which is another reason why we feel a review implementation group because often in the other place of this sort would be very helpful and important. My the answer to every question raised was, “The noble friend Lord Harris of Haringey gave me qualified implementation group will sort it out”. support—thank you. What will the implementation group look at? It will look at the point of sale information and identify the Baroness Crawley: You were lucky! best way to communicate and teach people about their rights. It will look at a range of ways to ensure that businesses and consumers know what the law is regarding Baroness King of Bow: I was very lucky. He said I the point of sale questions being asked. It will look at got two of the questions right; perhaps a 66% ranking statutory rights, what they mean and how people will is not too bad. He said that the areas that this amendment be told about them. It will also identify clear, promotes that are important relate, first, to providing understandable wording, not just how to tell people the mechanism for reviewing whether powers have about their rights but the words used to describe those worked and what the costs are, and, secondly, setting a rights. It will also look at the point of redress. It will standard for individual training standards officers. answer questions about the information given when That is extremely important; it is why we are asking someone complains about the goods, service or digital for support for this amendment. My noble friend Lord content. We also heard that the implementation group Harris pointed out that this whole area of minimum will look at the guidance given to trading standards; it standards has resulted in a postcode lottery nationally. will look at how this will be drafted for a wide range of If we are to tackle that postcode lottery and also organisations. ensure that the Bill’s objective of enhanced consumer protection is fulfilled, we need the powers set out in With that said it is clear that the implementation the Bill to be used proactively in the pre-emptive way group is not simply an add-on to this legislation. It is in which they were intended. This amendment would integral to the way in which it will work. The Bill is a give us the information we need to make sure that framework. As we know, most of the law is then happens in future. implemented via statutory instruments and guidance. Unfortunately, Parliament too often thinks that its job My noble friend Lord Harris said that the Government is done at that point, but implementation is really the might accept the amendment. Obviously, we need not most important part. The implementation group will worry about that, so I will leave it to one side and end be working behind the scenes—for example, preparing on the point that the Minister referred to, that effectively businesses. Consumers can be empowered only to it will be local authorities who have to make sure that know what their rights are, and therefore we need the this works. That brings us back to the point where we implementation group to succeed and its recommendations started. We do not see how we can avoid a dissonance to have bite. The key work of the group relates to Part between the powers that local authorities have and 1 of the Bill, improving business and consumer education their inability to use those powers and meet their on their new rights and obligations, as well as spending obligations because of a lack of resources. We do not some time informing trading standards officers. think that those two issues can be split up, but the review would illuminate where the problems really lie. After all that, what do we know about this mythical, None the less, I beg leave to withdraw the amendment. important, integral implementation group? It is an all-statutory group. So first, we do not actually know what it is doing. Secondly, without Amendment 105J Amendment 63ZAA withdrawn. its recommendations will have no teeth. We hope that the advice on the group would be taken by the Minister Clause 79 agreed. to turn into a code of conduct. There definitely should be a statutory code of conduct. We want the Amendment 63A not moved. implementation group to succeed. I beg to move.

Amendment 63AA Baroness Jolly: My Lords, I thank the noble Baroness Moved by Baroness King of Bow for highlighting both the work that we are doing on 63AA: After Clause 79, insert the following new Clause— the implementation of the Bill and that this “Report on work of Implementation Group for this Act implementation is vital if the measures are to make the differences that we intend. On commencement, the Secretary of State shall report to Parliament on the work of the Implementation Group to We have published our plans for implementation ensure consumers and businesses are adequately online, at gov.uk, and we have written to all noble informed of the changes in the law made by this Act, Lords about them. These plans have been drawn up in especially with regard to the key rights at the point of close co-operation with the experts on our implementation sale.” group. These are the people who know how this will really on the ground for business, consumers and Baroness King of Bow: In moving Amendment 63AA, enforcers. We intend the Consumer Rights Bill to I shall speak also to Amendment 105J in the names of come into force in October 2015. Work to inform my noble friends Lady Hayter and Lord Stevenson. businesses of the pending changes in the law will begin Amendment 63AA deals with the implementation group in earnest in April 2015. This will include the publication and is interesting, not least because during the Bill’s of guidance that is easy to understand and will be passage in the other place the shadow consumer rights supported by the sterling work of trade associations Minister, Stella Creasy, spoke about the mythical and enforcers to educate and assist businesses. GC 503 Consumer Rights Bill[LORDS] Consumer Rights Bill GC 504

[BARONESS JOLLY] The NTSB is then required to send the department Businesses will have six months to make any changes quarterly performance and finance reports of progress to processes and information to meet the requirements against its business plan, and a full annual report at under the Bill. They will be able to see at a glance the the end of the year. Ultimately, it is accountable to key changes in the law. They will also easily be able to Parliament, via the public accounts process, for the find more detailed guidance as and when they need it. delivery of its activities related to the grant that it The noble Baroness rightly emphasised the need for receives from the department. Therefore, all in all, consumers to be aware of their rights, while other noble Lords can be assured that Parliament will be noble Lords expressed similar thoughts. As we have kept well informed about work to improve the consumer said many times, the Government believe that we must landscape. I do not think that a formal requirement to ensure that consumers understand their new rights report on commencement is necessary in the legislation. and obligations. That is essential and I know that is With regard to consumers in the regulated sectors, something on which we can agree. it is important that consumers in these sectors are also That is why we are working closely with relevant aware of their rights, in particular around matters organisations, particularly consumer groups, to ensure such as refunds, repairs or replacements, and that that consumers have a basic awareness of their updated traders are aware of their responsibilities. Noble Lords rights and that they know where to get advice on a have raised some important points with this amendment specific problem with faulty goods, services and digital and I have an enormous amount of sympathy with content. The primary source of this advice will be the what is being said. I refer noble Lords back to my excellent Citizens Advice website and helpline, but of comments on Amendments 52 and 105A about what course the work of other consumer groups will be vital regulators are already doing to help consumers and to and we will work with key organisations to get the take into account their interests. In addition, I also message across. refer back to comments made on those amendments on the excellent work being done by the citizens advice 7.45 pm bureaux to help consumers in these sectors understand Unlike businesses, consumers will not need to know their rights. about the changes until closer to the time at which In Amendment 63AA the noble Baroness rightly they come into force. The experts on our implementation emphasises the need for consumers to be aware of group all agree on this. To publicise the new law too their new rights. As I have just outlined, we have a early could lead to confusion about which rights apply robust plan in place to ensure that both consumers when, where and how. The noble Baroness’s amendment and business become more aware of their rights and mentions, responsibilities. Therefore, while I agree with the sentiment “key rights at the point of sale”. behind this amendment, it will simply duplicate existing We have discussed this at some length in Committee. I work and cause confusion, and I therefore ask the am happy to reiterate that we have worked with business noble Baroness to withdraw it. groups and consumer groups to develop a high-level summary of consumer rights. This summary covers Baroness King of Bow: My Lords, if this our rights when we buy goods, services and digital implementation group is to take on so many of the content. It is a very important element of the work to issues that we have raised in Committee, we need to implement the Bill. As we have discussed in earlier know in good time when this information will be made sessions, we believe a voluntary, flexible approach will available to consumers and businesses. That is why it is be effective without causing unnecessary burdens and very helpful that the Minister has outlined the timeframe costs. A summary of these key consumer rights will be for some of the critical tasks that the implementation central to the work to publicise the changes under the group is responsible for. I heard what the Minister said Bill. When we publish this summary, I shall be very about the timing of publicising consumer rights. I was happy to place a copy in the Library. going to ask if she could write to us with an integrated I assure noble Lords that everyone will be hearing a summary of when both business and consumers will great deal about the new consumer rights, particularly be informed, but the Minister has said that she will around the time of commencement. We will be using a place something in the Library of the House. If it is wide variety of channels: social media, traditional possible to write to us in advance of that, that would media, trade associations, consumer campaigns, enforcer be welcome. education and online guidance, to list a few. We will be The key point, though, is not when these organisations, keeping Parliament informed. Noble Lords can rest stakeholders or citizens are informed; the key point is assured that they will hear about the changes next how they are informed, and whether it is in a common- October. sense, plain manner that they can understand. That I also remind noble Lords about the good work will be down to the implementation group and, given being done by trading standards, and this is perhaps a that group’s importance, it would be helpful for us to theme that we can all play together. It is playing a know more about how it will operate. In the mean crucial role in reducing the complexity of the consumer time, I beg leave to withdraw the amendment. landscape and in strengthening the effectiveness of enforcement. BIS sets key performance indicators for Amendment 63AA withdrawn. the National Trading Standards Board, and agrees its business plan at the beginning of each financial year. Committee adjourned at 7.50 pm. WS 115 Written Statements[29 OCTOBER 2014] Written Statements WS 116

My Right Honourable Friend the Secretary of State Written Statements for Foreign and Commonwealth Affairs attended the Wednesday 29 October 2014 Foreign Affairs Council on 20 October, and I attended the General Affairs Council on 21 October. The Foreign Affairs Council was chaired by the High Representative Defence: Air Traffic Management of the European Union for Foreign Affairs and Security Statement Policy, Baroness Ashton of Upholland, and the General Affairs Council was chaired by the Italian Presidency. The Parliamentary Under-Secretary of State, Ministry The meetings were held in Luxembourg. of Defence (Lord Astor of Hever) (Con): My hon. Commissioner for Enlargement and European Friend the Minister for Defence Equipment, Support Neighbourhood Policy, Štefan Füle, Commissioner and Technology (Mr Philip Dunne) has made the for International Cooperation, Humanitarian Aid and following Written Ministerial Statement. Crisis Response, Kristalina Georgieva and Commissioner I am pleased to announce the successful contract for Health, Tonio Borg, were in attendance for some award worth £1.5 billion (Ex-VAT) to AQUILA Air of the discussions at the FAC. Commissioner for Traffic Management Services to deliver the Air Traffic Inter-Institutional Relations and Administration, Maroš Management (ATM) sustainment and replacement Šefcovic, was in attendance for some of the discussions programme known as Marshall. The programme will at the GAC. last 22 years and covers the operation of more than 60 MOD sites in the UK and overseas, including in Foreign Affairs Council Cyprus, Gibraltar, Falkland Islands and Ascension A provisional report of the meeting and Conclusions Islands. adopted can be found at: This programme combines approximately 70 MOD http://www.consilium.europa.eu/uedocs/cms_data/ contracts into one and is expected to generate £1 billion docs/pressdata/EN/foraff/145218.pdf savings when compared with the contracts it replaces. It will bring MOD up to date with the latest advances Introductory remarks in civil ATM technology, improving reliability and Baroness Ashton expressed cautious optimism at streamlining the support chain. the recent elections in Bosnia, and hoped for the quick The MOD has a legal obligation as an Air Navigation formation of a new government. She briefed Ministers Service Provider to ensure the safe operation of aircraft. on the E3+3 / Iran negotiations, where parties were The Marshall programme will fulfil this obligation by still a long way apart on key issues. providing a sustainable Military Airfield ATM capability that will enable air vehicles to operate safely and Ebola effectively with tactical freedom, in all weather conditions Ministers discussed the need for a rapid and significant and in any environment, within the UK Areas of increase in the response to the Ebola outbreak in West Responsibility, including permanent overseas airfields, Africa. The Foreign Secretary called for a rapid and and in support of UK and coalition expeditionary up-scaled response from the EU and its Member forces worldwide. In addition it will enable compliance States, and outlined the UK’s ongoing significant efforts with forthcoming changes to ATM regulations. in Sierra Leone. Ministers agreed Conclusions which The contractor will supply, maintain and install set out an EU guarantee of appropriate care for new and updated ATM equipment. There will be a international health responders, including medical £400 million investment in very advanced surveillance evacuation, and an EU ‘clearing house’ system to help radars to equip MOD airfields and ranges with deploy more health workers more quickly. sophisticated and robust ATM equipment, including navigation aids and radios. Libya The contractor will also train maintainers and operators Special Representative of the UN Secretary General, and deliver the service at a high level of availability. Bernardino Leon, briefed that a deal amongst Libyans The full service will be provided during and after an was achievable and the parties were not far apart. The initial six-year transition period beginning on 1 April threat of sanctions had provided leverage. The Foreign 2015, when the service provider will assume responsibility Secretary agreed and called on the international for the provision of the military Air Traffic Management community to support the UN facilitated dialogue Service in its current state. During the transition period and to refrain from divisive actions. Ministers agreed the service provider will progressively remove old ATM Conclusions reinforcing the 18 October E3, Italian equipment and replace it with new equipment. and US Joint Statement urging all parties to observe a ceasefire and supporting Leon’s efforts to broker a EU: Foreign Affairs Council and political solution. General Affairs Council Iraq / Syria / ISIL Statement Ministers agreed Conclusions which firmly endorsed UK priorities, pledging EU action to defeat ISIL and The Minister of State, Foreign and Commonwealth supporting military action. They also endorsed a strategy Office (Baroness Anelay of St Johns) (Con): My right to tackle foreign fighters and underlined that Assad Honourable Friend, the Minister for Europe (Mr David cannot be a partner. Ministers agreed to ban the Lidington), has made the following written Ministerial export of jet fuel to Syria and extended sanctions to statement: 18 new entities associated with the Assad regime. WS 117 Written Statements[LORDS] Written Statements WS 118

Middle East Peace Process • The Council allocated a budget of ¤17.9 million Baroness Ashton briefed Ministers on the 12 October for activities of the EU mission on regional maritime Gaza Reconstruction Conference in Cairo, where the capacity building in the Horn of Africa (EUCAP EU had pledged ¤450m, and reiterated that the EU Nestor) for the period from 16 October 2014 to was ready to support a durable ceasefire. There was 15 October 2015. consensus that the EU should press for the Palestinian General Affairs Council Authority to return to Gaza and for restrictions to be lifted, whilst expressing frustration at the lack of progress The General Affairs Council (GAC) on 21 October and continued Israeli settlement expansion. The Foreign focused on: the preparation of the European Council Secretary welcomed international generosity at the on 23 and 24 October 2014; the follow-up to the Cairo conference. He stressed that the EU’s priority Strategic Agenda for the EU agreed at the June European must be supporting a sustainable ceasefire in Gaza, Council; Protocol 36 of the Treaties; composition of including through a reactivated and potentially expanded the Committee of the Regions; and strengthening border management mission (EUBAM Rafah). inter-institutional annual and multi-annual programming. Ukraine A provisional report of the meeting can be found at: The Foreign Secretary and a number of other Ministers http://www.consilium.europa.eu/uedocs/cms_data/ set out the importance of maintaining pressure on docs/pressdata/EN/genaff/145257.pdf Russia and enhancing support to Ukraine. The Commission outlined their financial support and The Preparation of the October European Council preparations for a donors’ conference, but called for maintaining conditionality, highlighting the importance The GAC prepared the 23 and 24 October European of reform. The Foreign Secretary and others pressed Council, which the Prime Minister attended. The October for a response to rising humanitarian needs as winter European Council agenda is expected to include: the approached, and hoped for an early deal with Russia Climate and Energy Policy Framework 2030; economic on gas. Ministers agreed Conclusions stating that Russia issues; and external relations issues (including Ebola must implement its commitments, including on: and Ukraine). We also expect the European Council withdrawing troops/arms from eastern Ukraine, control to formally appoint the new Commission, following of the border, and local elections in separatist-controlled the vote by the European Parliament on 22 October. areas. On Climate and Energy, I emphasised the need for Other business an ambitious 2030 agreement which gives Member Ministers agreed without discussion a number of States flexibility to achieve the necessary reductions in other measures: greenhouse gas emissions in the most cost effective way, and includes substantial measures to improve EU • The Council adopted Conclusions on Bosnia and energy security and allow development of low carbon Herzegovina; Yemen; Afghanistan; Sudan and technologies as core elements the package. Somalia. Follow-up to the June European Council • The Council approved the seventeenth progress report on the implementation of the EU strategy to By way of follow-up to the June European Council combat illicit accumulation and trafficking of small the GAC held its second thematic discussion of the arms and light weapons and their ammunition covering implementation of the ‘Strategic Agenda for the Union the EU’s activities from 1 January to 30 June 2014. in times of change’ which focused on Freedom, Security • The Council amended EU sanctions against and Justice. Due to the cross-border nature of key Somalia. challenges facing Member States, such as immigration and security, it was agreed that there was scope for the • The Council reinforced EU restrictive measures EU to add value in this area. The Italian Presidency against the Syrian regime. raised the need to deal with the threat posed by foreign • The Council amended the EU restrictive measures fighters and stated that increased EU-level information in view of the situation in Libya to take account of and risk sharing, as well as further progress on the changes approved at the UN. Passenger Name Records (PNR) Directive, would be crucial in tackling this issue. • The Council extended the EU restrictive measures against five persons from the Republic of Protocol 36 of the Treaties Guinea. I updated the GAC on the UK’s intentions regarding • The Council approved the High Representative’s the Prüm and Probation decisions, as reflected in the report on the twentieth six-monthly review of Home Secretary’s statement of 10 July, and laid a Operation ALTHEA. statement into the Council minutes to that effect. • The Council adopted the concept of operations and the operational plan for the EU Advisory Composition of the Committee of the Regions Mission for Civilian Security Sector Reform The GAC considered a Commission proposal to Ukraine (EUAM Ukraine). amend the composition of the Committee of the • The Council approved the concept of operations Regions, which would reduce the number of members for the EU Common Security and Defence Policy from 353 to 350 as stipulated in the Treaties. Following mission in Mali (EUCAP Sahel Mali). concerns raised by several Member States on Commission WS 119 Written Statements[29 OCTOBER 2014] Written Statements WS 120 handling, Ministers requested further work on the Transforming Rehabilitation proposal and agreed to return to the matter at a Statement subsequent meeting. The Minister of State, Ministry of Justice (Lord Faulks) Strengthening inter-institutional annual and multi-annual (Con): My right honourable friend the Lord Chancellor programming and Secretary of State for Justice (Chris Grayling) has The Italian Presidency outlined their proposals for made the following Written Ministerial Statement. the Council to examine the Commission’s draft 2015 “Today the Government took another major step Work Programme and establish a framework for working forward in delivering its important reforms to with the Commission and European Parliament on rehabilitation services, announcing Preferred Bidders improving inter-institutional annual and multi-annual for 21 Community Rehabilitation Company contracts. programming in future years. The competition for contracts was strong, with over 80 bids received and an average of four bidders in each I supported early engagement with the new area. Commission on its Work Programme and the need I have placed a copy of the list of Preferred Bidders for the Council to be fully prepared for discussions in the House Libraries today. You will see that we have with the Commission and European Parliament on a strong and diverse market, with Preferred Bidders in strengthening inter-institutional programming. Both all but one of the 21 contract areas including voluntary of these present an opportunity for the Council to and social sector organisations as ‘top tier’ partners in ensure that the Commission’s work is focussed on the their bids (the other Preferred Bidder is a medium-sized implementation of the Strategic Agenda, as set out by British business). Four probation staff mutuals are the June European Council. also represented as top tier partners.”

WA 153 Written Answers[29 OCTOBER 2014] Written Answers WA 154

Affairs, my right hon. Friend the Member for East Written Answers Devon (Mr Swire), raised the issue with the Chinese Permanent Representative in Geneva on 18 June. Wednesday 29 October 2014 Asked by Lord Eames Apprentices To ask Her Majesty’s Government whether they Question have raised concerns with the People’s Republic of China concerning its compliance in the treatment Asked by Lord Smith of Clifton of North Korean refugees within Chinese territory with the United Nations Convention on the Rights To ask Her Majesty’s Government how many of the Child and the United Nations Convention (1) 16 year-olds, (2) 17 year-olds, and (3) 18 year-olds against torture and other cruel, inhumane or degrading started apprenticeships in the academic years 2012–13 treatment or punishment. [HL2200] and 2013–14 in England. [HL2335] Baroness Anelay of St Johns: The Government regularly The Parliamentary Under-Secretary of State, Department raises with China the treatment of North Korean for Business, Innovation and Skills (Baroness Neville-Rolfe) refugees. We have made clear that people who have (Con): Table 1 shows the number of apprenticeship escaped from North Korea are entitled to protection starts for 16, 17 and 18 year olds in 2012/13 and under the International Convention relating to the provisional full year apprenticeship starts for the same Status of Refugees (1951) and the Protocol Relating to ages in 2013/14. Provisional data are subject to change the Status of Refugees (1967). We have also made and should not be directly compared with data from clear that the Chinese government should allow people earlier academic years. from the Democratic People’s Republic of Korea safe passage to resettlement in third countries; and we Table 1: Apprenticeship starts by age (2012/13 and 2013/14 provisional full year) encourage the Chinese government to work with the UN High Commissioner for Refugees to facilitate this. 2012/13 2013/14 We expect China, like all countries, to comply fully Full year with its obligations under international human rights Age Full year (provisional) conventions. The Minister of State for Foreign and 16 25,080 25,170 Commonwealth Affairs, my right hon. Friend the 17 35,810 38,320 Member for East Devon (Mr Swire), raised these 18 53,430 54,140 issues with the Chinese Permanent Representative in Geneva in June 2014. Notes 1) Volumes are rounded to the nearest 10. 2) Age is calculated based on age at start of the programme Coalition Governments rather than based on 31 August. Question 3) Provisional data are subject to change and should not be directly compared with data from earlier academic years. Asked by Lord Lexden To ask Her Majesty’s Government, further to China the Written Answer by Lord Wallace of Saltaire on Questions 23 June (HL244), whether they will now set a definite date for the release of their written response Asked by Lord Eames to the report of the Select Committee on the Constitution on the Constitutional implications of To ask Her Majesty’s Government whether any coalition government (HL Paper 130, Session 2013–14) discussions have been held with the Ambassador of published on 12 February and debated on 13 May. the People’s Republic of China concerning the findings of the United Nations Commission of Inquiry, [HL2131] especially on the issue of the forcible repatriation of North Korean refugees and the People’s Republic Lord Wallace of Saltaire (LD): The Government is of China’s obligation under the United Nations grateful to the Select Committee on the Constitution Convention relating to the status of refugees. for its work on these important issues. The Government [HL2199] is considering these issues carefully and will respond shortly. The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): Foreign Disabled Students’ Allowances and Commonwealth Office (FCO) officials raised concerns on the forcible repatriation of refugees with the Chinese Question Embassy in London on 13 August 2014. FCO officials Asked by Lord Addington also raised this issue and the findings of the UN Commission of Inquiry during the UK-China Human To ask Her Majesty’s Government whether, in Rights Dialogue on 19-20 May 2014, which representatives the light of reforms of the disabled student allowance, from the Chinese Embassy in London attended. The there is a clear guide to the duties of higher education Minister of State for Foreign and Commonwealth sectors towards disabled students. [HL1991] WA 155 Written Answers[LORDS] Written Answers WA 156

Baroness Williams of Trafford (Con): The Government The Parliamentary Under-Secretary of State, Department has published draft guidance which sets out what of Health (Earl Howe) (Con): The Transatlantic Trade Disabled Students Allowances will fund in the 2015-16 and Investment Partnership (TTIP) will not affect the academic year. Institutions have a legal duty under the way the United Kingdom Government runs the National Equality Act 2010 to provide reasonable adjustments. Health Service. It has been made clear by negotiators It is not the role of Government to set out what an from both the United States and the European Union institution should do to meet that legal duty. that it is up to the UK alone to decide how the NHS is run and any assertion that TTIP will undermine the Government’s control of the NHS is a red herring. The TTIP could offer great benefits to British business Electronic Warfare and for British jobs. Greater consistency in existing Question and new regulatory requirements would make it easier for Asked by Lord Maginnis of Drumglass companies—especially small and medium enterprises—to access markets and, for patients, potentially help to To ask Her Majesty’s Government whether they increase access to new medicines and medical devices. have made any provision comparable to that made by the United States towards the creation and retention of a service dedicated to cyber warfare technology; General Practitioners and whether there is a services’ cyber commander Question in post. [HL2197] Asked by Lord Browne of Belmont

The Parliamentary Under-Secretary of State, Ministry To ask Her Majesty’s Government how many of Defence (Lord Astor of Hever) (Con): The United general practitioner practices in England have closed Kingdom’s approach to military cyber operations since June 2010; and how many have opened since recognises that the contemporary operating environment January 2013. [HL2108] now requires commanders at every level to understand cyberspace. The Ministry of Defence is therefore The Parliamentary Under-Secretary of State, Department mainstreaming cyber throughout the Department and of Health (Earl Howe) (Con): The data requested is the Armed Forces to ensure that every part of Defence shown in the following table. It is not possible to show sees cyberspace as part of their responsibilities. For this by calendar month. those elements of Defence that are cyber specialists, the Chief of the Defence Staff has issued direction to It is important to note that these figures also include the four star commander of the Joint Forces Command practice mergers and takeovers and do not provide an appointing him as the Joint Commander for the planning accurate representation of activity or service provision. and conduct of Defence’s cyber operations. Responsibility For example, the merger of three practices would is delegated through the Chief of Defence Intelligence show as three practices closing and one opening. to the Joint Forces Cyber Group, who plan and direct the activities of our Joint Cyber Units. The Senior Closed: England Opened: England Responsible Owner for the integration of Cyber across 2010 79 x Defence is the two-star Director of Cyber Intelligence 2011 111 x and Information Integration. 2012 124 x 2013 126 13 2014 (to 31 78 9 EU External Trade: USA August) Source: HSCIC Questions Notes: Asked by Baroness Manzoor Details for opened practices in 2010 to 2012 have not been provided, but are available. To ask Her Majesty’s Government whether they have undertaken an impact assessment of the potential impacts on the National Health Service of the Gibraltar: Spain Transatlantic Trade and Investment Partnership which is being negotiated between the European Union Question and the United States. [HL2373] Asked by Lord Patten To ask Her Majesty’s Government what are the To ask Her Majesty’s Government, further to implications for the National Health Service and the Written Answer by Baroness Anelay of St Johns the staff who work in the National Health Service if (HL1709), how many incursions by Spanish state the Transatlantic Trade and Investment Partnership vessels into British Gibraltar Territorial Waters there is agreed. [HL2374] have been in 2014 to date and in each of the To ask Her Majesty’s Government what are the preceding five years; and, in the light of these implications for hospitals and foundation trusts if numbers, what is their assessment of the efficacy of the Transatlantic Trade and Investment Partnership the defence of United Kingdom sovereignty over is agreed. [HL2375] these waters using current methods. [HL2285] WA 157 Written Answers[29 OCTOBER 2014] Written Answers WA 158

The Minister of State, Foreign and Commonwealth We are helping single homeless people find and Office (Baroness Anelay of St Johns) (Con): There sustain accommodation in the private rented sector were 247 unlawful incursions between January and through our £13 million funding to Crisis. By 2016 we September this year. There were 103 in 2010, 24 in expect the Crisis scheme to have helped 10,000 single 2011, 229 in 2012 and 496 in 2013, as stated in the homeless people since it started in 2010. reply of 17 June, Official Report, column WA38, given We are continuing to tackle and prevent rough by the former Senior Minister of State for Foreign and sleeping. Thousands of vulnerable people have been Commonwealth Affairs, the right hon. Baroness Warsi. helped off the streets through the No Second Night The Government cannot readily provide statistics for Out and Streetlink initiatives. £20 million funding has incursions before 2010 as this could only be obtained been made available to the voluntary sector through at a disproportionate cost. the Homelessness Transition Fund which has helped Incursions are a violation of sovereignty, not a No Second Night Out schemes across the country. threat to it. They do not change the fact of British There have been 18,000 Streetlink referrals since December sovereignty over British Gibraltar Territorial Waters. 2012. The Government challenges and protests all unlawful incursions and these actions effectively defend our In Vitro Fertilisation sovereignty over British Gibraltar Territorial waters. Question Higher Education: Finance Asked by Lord Alton of Liverpool Question To ask Her Majesty’s Government, further to the Written Answers by Lord Darzi of Denham on Asked by Lord Blencathra 22 July 2008 (HL4926 and HL4927) and by Earl Howe on 9 July 2012 (HL1211), of how many To ask Her Majesty’s Government, in view of cycles the Human Fertilisation and Embryology the latest Times Guide to Universities ranking all Authority are aware in which fresh embryo transfers United Kingdom universities in terms of performance, took place after 15 or more eggs were collected over what plans they have to cut or reduce funding to the each of the past ten years. [HL2287] poorest performers. [HL2118] The Parliamentary Under-Secretary of State, Department Baroness Williams of Trafford (Con): The reforms of Health (Earl Howe) (Con): The number of treatment this Government has introduced mean that funding cycles in which fresh embryo transfers took place after now follows the decisions of students and that students 15 or more eggs were collected, in each of the last can access better information, including about University 10 years, is shown in the following table: performance, to support their choices. In September 2012 we introduced the Key Information Set to provide Cycles in which fresh embryo transfers took place after comparable information which students have said they Years 15 or more eggs were collected find useful when choosing their higher education course. 2004 5602 It includes on student satisfaction ratings, graduate 2005 5737 salaries and employment outcomes, tuition fees and 2006 5843 financial support, and the cost of accommodation. 2007 6345 2008 6589 Homelessness 2009 7344 2010 7801 Question 2011 8195 Asked by Baroness King of Bow 2012 8200 2013(1) 8128 To ask Her Majesty’s Government what is their assessment of the findings of the recent research by Source: The Human Fertilisation and Embryology Authority (1) Crisis into the treatment of single homeless people 2013 is the most recent year for which information is available. by local authorities in England. [HL2305] India The Parliamentary Under-Secretary of State, Department Question for Communities and Local Government (Lord Ahmad Asked by of Wimbledon) (Con): This Government is committed Lord Ramsbotham to preventing and tackling homelessness. We have To ask Her Majesty’s Government whether Foreign increased homelessness prevention spending, making and Commonwealth Office-sponsored officials from over £500 million available since 2010 to local authorities the Indian Prison Service were charged for a visit to and the voluntary sector to help the most vulnerable in HMP Grendon; and if so, how much, and on what society. grounds. [HL2116] We are improving services through the new £8 million Help for Single Homeless Fund. This will enable local The Minister of State, Ministry of Justice (Lord authorities, working with local partners such as the Faulks) (Con): The National Offender Management health and probation services, to better tackle and Service (NOMS) charged Penal Reform International prevent single homelessness. £1,000 for running a full day visit to HMP Grendon in WA 159 Written Answers[LORDS] Written Answers WA 160

June 2014, involving ten Indian Prison Officers, two The Department and NHS England continue to Indian Training Academy officials and one Penal Reform work together to ensure that there are consistent messages International representative. The charge covered the to commissioners and providers about the importance costs of NOMS staff screening and arranging the visit of delivering parity of esteem for people with mental and HMP Grendon’s staff costs for escorting and health needs. providing refreshments for the thirteen delegates. Monitor and NHS England are responsible for Most of the international visits to prisons that setting the national tariff arrangements and are working NOMS arranges are at the request of other governments together to develop a national payment system for and are not charged. NOMS applies charges in a few mental health which promotes early intervention, access cases to cover its costs where, as on this occasion, a to effective evidence-based care, improved outcomes private company or non-governmental organisation and recovery. approaches NOMS as an intermediary and has a The national tariff arrangements for 2015-16 will funded programme of which the visit is part. include examples of new and innovative payment models which local commissioners and providers may choose to adopt next year. Israel Question Morocco Asked by Baroness Tonge Question To ask Her Majesty’s Government what Asked by Lord Black of Brentwood representations they have made to government of To ask Her Majesty’s Government what recent Israel concerning the banning of non-governmental representations they have made to the government organisations such as Amnesty International from of Morocco about its treatment of homosexual working in Israel. [HL2208] men and women. [HL2326]

The Minister of State, Foreign and Commonwealth The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): We have Office (Baroness Anelay of St Johns) (Con): We regularly not raised this issue with the Israeli authorities as discuss human rights issues with the Moroccan authorities. Amnesty International are not banned from working Our ambassador in Morocco most recently raised in Israel. lesbian, gay, bisexual and transgender rights with the Officials from our Embassy in Tel Aviv have, however, Moroccan Foreign Minister in early October 2014. raised our concerns with the Israeli National Security Adviser and the Israeli Office for the Coordination of Government Activities in the Territories (COGAT) on North Korea access to Gaza for non-governmental organisations. Questions Our deputy Ambassador to Tel Aviv sent a letter to the Head of COGAT, Major General Mordechai, in Asked by Lord Alton of Liverpool mid-August requesting that Amnesty be granted access To ask Her Majesty’s Government what assessment to Gaza. they have made of the statement by Mr Marzuki Darusman, the United Nations Special Rapporteur on human rights in North Korea, that the United Mental Health Services Kingdom should consider implementation of all Question recommendations made by the United Nations Commission of Inquiry in its report, including Asked by Lord Hunt of Kings Heath steps to increase the flow of free and impartial information into North Korea. [HL2178] To ask Her Majesty’s Government what effect spending pre-emptions by NHS England have had on the ability of NHS England to ensure parity of The Minister of State, Foreign and Commonwealth esteem as required by the Health and Social Care Office (Baroness Anelay of St Johns) (Con): The UK Act 2012, the NHS Mandate for 2013 to 2015 and welcomes the spotlight shone by the Commission of the Refreshed Mandate for 2014 to 2015. [HL2183] Inquiry (COI) report on horrific and systemic violations of human rights in the Democratic People’s Republic of Korea (DPRK). We have urged the DPRK authorities The Parliamentary Under-Secretary of State, Department to respond in detail to the contents of the report and of Health (Earl Howe) (Con): Funding for mental to address the violations that it documents. health has increased by £120 million in 2014-15, a rise Although not all recommendations in the COI report of 1.4% in cash terms. Total mental health spending apply directly to the UK, where possible we have taken will rise from £8.5 billion in 2013-14 to £8.62 billion in steps to support implementation. For example, on the 2014-15. findings related to trafficking and forced repatriation, The Government has committed an additional we have made clear to the Chinese government that we £40 million funding boost for mental health services in believe that people who have escaped from the DPRK 2014-15. A further £80 million in 2015-16 will be freed are entitled to protection and should be allowed safe by NHS England from existing budgets. passage to resettlement in third countries. WA 161 Written Answers[29 OCTOBER 2014] Written Answers WA 162

Asked by Lord Alton of Liverpool above the national average; and how the national average compares with other European Union member To ask Her Majesty’s Government what steps states. [HL2328] they will take to ensure that the recommendations accepted by North Korea in the first cycle of the Universal Periodic Review have been implemented; The Parliamentary Under-Secretary of State, Department and whether they will offer support to North Korea of Health (Earl Howe) (Con): It is not possible to in its implementation of accepted recommendations distinguish in Hospital Episode Statistics between “major” from its second periodic review. [HL2179] and “minor” amputations. The Health and Social Care Information Centre Baroness Anelay of St Johns: Following the adoption (HSCIC) has calculated the England average rate of of the Democratic People’s Republic of Korea (DPRK)’s amputation per 100,000 population and highlighted Universal Periodic Review (UPR) report on 19 September the clinical commissioning groups (CCGs) of residence 2014, the UK issued a statement via our Mission in having rates more than 33% higher than the national Geneva welcoming the DPRK’s engagement. We urged average. There are 25 such CCGs. the DPRK to fulfil the commitment made to respond to the 185 recommendations which it agreed to examine, This is not a count of people as the same person and to take concrete steps to implement all the UPR may have had more than one episode of care within recommendations. We also noted with regret that 83 the same time period. UPR recommendations did not enjoy the support of the DPRK, particularly those related to the findings We do not have information on a comparison of of the UN Commission of Inquiry, co-operation with rates of amputation with other European Union member the Special Rapporteur, the treatment of political states. prisoners and closure of political prison camps. Count of We have made clear to the DPRK that the UK finished Rate per would be happy to provide technical assistance or Clinical Commissioning consultant 100,000 advice to the DPRK on any aspect of its human rights Group of residence episodes Population population performance, including for example information on NHS 68 110,488 61.5 the UK approach to our own UPR. SCARBOROUGH AND RYEDALE CCG North Sea Oil NHS EAST RIDING 169 314,504 53.7 OF YORKSHIRE Question CCG NHS DONCASTER 159 302,739 52.5 Asked by Lord Hodgson of Astley Abbotts CCG NHS MANSFIELD 101 192,539 52.5 To ask Her Majesty’s Government what is the AND ASHFIELD total revenue they have received from the extraction CCG and exploration of North Sea oil. [HL2133] NHS BLACKPOOL 72 141,976 50.7 CCG NHS KNOWSLEY 74 145,936 50.7 The Commercial Secretary to the Treasury (Lord CCG Deighton) (Con): Government revenues from UK oil NHS DURHAM 138 273,043 50.5 and gas production for all years to 2013-14 are published DALES, by HM Revenue & Customs (HMRC) as National EASINGTON AND SEDGEFIELD CCG Statistics on the GOV.UK website[1]. Total revenues NHS KERNOW CCG 272 540,178 50.4 can be found in Table 11.11 from the Statistics of NHS FAREHAM 98 196,078 50.0 Government revenues from UK oil and gas production AND GOSPORT publication[2]. CCG NHS LANCASHIRE 78 158,528 49.2 The values in Table 11.11 are detailed in current NORTH CCG prices, so for previous years they do not reflect the NHS NORTHERN, 421 869,408 48.4 value of total revenue today. The total revenue received EASTERN AND from the extraction and exploration of North Sea oil WESTERN DEVON is £187.8 billion in current prices. CCG NHS STOKE ON 124 258,114 48.0 [1] https://www.gov.uk/government/collections/petroleum- TRENT CCG revenue-tax-prt-and-government-revenues-from-uk-oil-and-gas- NHS TELFORD 80 167,682 47.7 production AND WREKIN CCG [2] https://www.gov.uk/government/uploads/system/uploads/ NHS 88 184,932 47.6 attachment_data/file/306225/140424_Table_11_11.pdf HEREFORDSHIRE CCG NHS HULL CCG 122 257,204 47.4 Orthopaedics NHS NORTH 88 186,706 47.1 KIRKLEES CCG Question NHS BOLTON CCG 131 278,984 47.0 Asked by Lord Harrison NHS EAST 58 123,945 46.8 STAFFORDSHIRE To ask Her Majesty’s Government in how many CCG Clinical Commissioning Groups rates of (1) major, NHS COASTAL 222 476,677 46.6 and (2) minor, amputations are more than 33 per cent WEST SUSSEX CCG WA 163 Written Answers[LORDS] Written Answers WA 164

Count of Government is in the process of obtaining the necessary finished Rate per legislative consent motion and approval from the Northern Clinical Commissioning consultant 100,000 Ireland Assembly. Group of residence episodes Population population [1] Explanatory notes for the Taxation of Pensions Bill were NHS 106 228,111 46.5 published on the Parliament Website. Territorial extent is LINCOLNSHIRE detailed in paragraph 52 http://www.publications.parliament.uk/ EAST CCG pa/bills/cbill/2014-2015/0097/en/15097en.htm NHS HALTON CCG 58 125,692 46.1 NHS NEWARK & 53 115,897 45.7 SHERWOOD CCG Prisoners’ Transfers: Northern Ireland NHS THANET CCG 62 135,661 45.7 NHS SOMERSET 243 534,950 45.4 Question CCG NHS BRADFORD 37 82,319 44.9 Asked by Lord Browne of Belmont CITY CCG To ask Her Majesty’s Government how many prison transfer applications from Great Britain to Pakistan Northern Ireland have been (1) sent, (2) approved, Question and (3) rejected, in the past 12 months. [HL2109]

Asked by Baroness Berridge The Minister of State, Ministry of Justice (Lord To ask Her Majesty’s Government what is their Faulks) (Con): From 1 October 2013 to the 30 September response to the assassination of the Ahmadi Muslims 2014 the National Offender Management Service referred in Pakistan, and in particular, the recent assassination a total of eight applications to the Northern Ireland of Latif Aalam Butt. [HL2217] Prison Service from prisoners seeking to transfer from a prison in England and Wales to one in Northern Ireland to continue serving a sentence of imprisonment The Minister of State, Foreign and Commonwealth or to facilitate a period of temporary visits with close Office (Baroness Anelay of St Johns) (Con): We remain family. concerned about the violence faced by the Ahmadiyya and other communities in Pakistan and continue to Of the 8 applications, two were approved and the urge the Government of Pakistan to protect and guarantee prisoners were transferred, one application was refused, the fundamental rights of all its citizens as laid down one prisoner withdrew their application and four in the Constitution and in accordance with international applications remain under consideration. standards. The Foreign and Commonwealth Office closely monitors the situation in Pakistan as documented in the annual Human Rights report and quarterly Public Sector: Pensions updates. The Prime Minister, my right hon. Friend the Questions Member for Witney (Mr Cameron) and the former Asked by Lord Laird Secretary of State for Foreign and Commonwealth Affairs, my right hon. Friend the Member for Richmond To ask Her Majesty’s Government what estimate (Yorks) (Mr Hague), raised human rights concerns they have made of how many individuals in defined with Prime Minister Sharif during his visit in May contribution funded public sector pension schemes 2014. will withdraw their entire accrued entitlements under the new Freedom and Choice for Pensioner Pensions: Northern Ireland arrangements in the first year from April 2015, and at what cost. [HL2096] Question To ask Her Majesty’s Government whether they Asked by Lord Laird consider that delaying transfer payments and reducing transfer values are sufficient safeguards to stabilise To ask Her Majesty’s Government whether and public sector funded pension schemes threatened how the new Freedom and Choice for Pensioners by large-scale withdrawals under the new Freedom arrangements will apply to Northern Ireland; and and Choice for Pensioners arrangements. [HL2097] whether they have discussed the matter of a legislative consent motion with the Northern Ireland To ask Her Majesty’s Government whether, under Executive. [HL2100] their proposed entire pension withdrawal arrangements, they will include in the legislation a power to suspend the concession for such schemes in the event of The Commercial Secretary to the Treasury (Lord serious destabilisation of funded public service pension Deighton) (Con): The tax changes necessary to deliver schemes or extreme cost to the Exchequer. [HL2098] the Freedom and Choice in Pensions agenda are contained in the Taxation of Pensions Bill. The provisions in this To ask Her Majesty’s Government what is the Bill will apply across the UK as the relevant tax key difference between trust-based and contract-based legislation is not, in the main, a matter over which public sector defined contribution schemes in relation powers have been devolved.[1] The Pension Schemes to the proposed pension withdrawal arrangements; Bill is being used to introduce further changes relevant and what was the result of their consultation with to the Freedom and Choice agenda. Where these do the Local Government Pension Scheme on extra relate to devolved matters in Northern Ireland, the safeguards for such trust-based schemes. [HL2099] WA 165 Written Answers[29 OCTOBER 2014] Written Answers WA 166

The Commercial Secretary to the Treasury (Lord area of Greater London (excluding the City of London, Deighton) (Con): The government believes that people and the Inner and Middle Temples). Details of the should be free to make their own choice about how to local authorities in this region can be found at http:// use their savings—individuals who have worked hard www.londoncouncils.gov.uk. and saved responsibly throughout their adult life should Asked by The Earl of Clancarty have a choice about their pension savings and the reforms announced at Budget 2014 will deliver this. To ask Her Majesty’s Government whether the The new tax framework, which will allow, from Department for Culture, Media and Sport holds an April 2015, individuals with a defined contribution archive and register (including plans, drawings etc.) pension to access their entire pension flexibly will relating to consent given by the Secretary of State apply equally across trust and contract based money for the erection of statues under the Public Statues purchase pension schemes. In the public sector, members (Metropolis) Act 1854; if so, whether they make of defined contribution schemes will also have access that archive publicly accessible; and what plans to these flexibilities, including members with savings in they have for any such archive. [HL2259] Additional VoluntaryContribution (AVC) arrangements. The Government’s assessment of the impact of the Lord Gardiner of Kimble: The Department does not policy is set out in detail in the Budget costing note hold an archive or register relating to consent given by and the Tax Information and Impact Note, published the Secretary of State for the erection of statues under alongside the Taxation of Pensions Bill. section 5 of the Public Statues (Metropolis) Act 1854. The Government wants to extend the principles of freedom and choice to as many pension savers as Regional Schools Commissioners: possible which is why, following an extensive public consultation, it was decided to permit transfers out of Greater London private sector and funded public sector defined benefit Questions schemes to continue. Giving scheme members the Asked by Baroness Jones of Moulsecoomb choice to transfer their accrued benefits into a defined contribution scheme, in order to access their pension To ask Her Majesty’s Government what was pot flexibly if they wish to. their reason for dividing responsibility for London To ensure due consideration is given to the interests between three regional school commissioners. of scheme members, scheme funds and the taxpayer in [HL2396] the continuation of these transfers for the public service schemes, government set out in the response to the The Parliamentary Under-Secretary of State for consultation, Freedom and Choice in Pensions, that it Schools (Lord Nash) (Con): The Regional Schools would look to implement, where appropriate, safeguards Commissioners structure has been designed to share akin to those which already exist in the private sector. London’s expertise and track record in school We are continuing to discuss these options and others, improvement with wider geographic areas. including with the Department for Local Government Asked by Baroness Jones of Moulsecoomb as the department responsible for the Local Government Pension Scheme, the largest of the funded public To ask Her Majesty’s Government what service pension schemes, and will set out further detail consideration they have given to the recommendation on this issue in due course. of the London Assembly Education Panel, in its report London learners, London lives published on 16 September, that London should be covered by a Public Statues: Greater London single London-wide, London-only regional school Questions commissioner. [HL2397] Asked by The Earl of Clancarty Lord Nash: The Department for Education determined the structure for Regional Schools Commissioners in To ask Her Majesty’s Government what is the December 2013 and they began their role in September area of London for which the Secretary of State is 2014. The Government has not seen evidence that currently responsible under the Public Statues restructuring the regions is necessary and currently (Metropolis) Act 1854 for giving consent for the has no plans to make changes to the regional boundaries. erection of public statues; and which local authorities are included in that area. [HL2258] Syria Lord Gardiner of Kimble (Con): Under section 5 of Questions the Public Statues (Metropolis) Act 1854 the consent Asked by The Lord Bishop of Coventry of the commissioners of works needs to be obtained before a public statue can be erected in a public place To ask Her Majesty’s Government what steps in the Metropolitan Police District of London. The they are taking to work with Syria’sreligious communities, functions of the commissioners of works are now including the smallest minority communities and vested in the Secretary of State for Culture, Media and their political and civic representatives, to help them Sport. By virtue of the London Government Act 1963 reach agreement on what measures are needed to (as amended by the Greater London Authority Act 1999), ensure religious freedom and security for all communities the Metropolitan Police District of London is now the in that country. [HL2204] WA 167 Written Answers[LORDS] Written Answers WA 168

The Minister of State, Foreign and Commonwealth The Government has agreed to look again at how Office (Baroness Anelay of St Johns) (Con): We are funding is provided for in 2015-16. Any decisions will supporting non-governmental efforts to promote dialogue be taken after we have reviewed how the current funds between different ethnic and sectarian groups in Syria, have been used and the ongoing consultation and with a view to a future political settlement. We are also equality analysis on 2015-16 funding being co-ordinated funding training for Syrian activists to document abuses by the Department for Communities and Local to a criminal law standard with the aim that this Government. documentation could be used in a future process of accountability. In the long run the only way to secure the position Work Experience of Syria’s minority communities is to find an inclusive Question political solution to the crisis. The UK is determined to support the moderate opposition, who are working Asked by Baroness Berridge for an inclusive political settlement, and are committed to protect all of Syria’s communities and resist, extremists To ask Her Majesty’s Government what is their and authoritarian regimes. assessment of the recent proposal by the Child Poverty and Social Justice Commission that unpaid Asked by The Lord Bishop of Coventry internships should be illegal. [HL2219] To ask Her Majesty’s Government what measures they are taking to ensure that any assistance provided The Parliamentary Under-Secretary of State, Department to opposition groups in Syria does not either directly for Business, Innovation and Skills (Baroness Neville-Rolfe) or indirectly support any militia, non-state actor or (Con): This Government is absolutely clear: exploitation other organisation credibly charged with involvement of interns is unacceptable and we do not hesitate to in sectarian or religiously motivated violence. act where we find that employment law has been [HL2205] broken and someone who is entitled to the minimum Baroness Anelay of St Johns: The assistance we wage has not been paid it. provide, including to the armed opposition groups, Complaints from interns about non-payment of the has undergone intense scrutiny to ensure that we are minimum wage are prioritised by HMRC for investigation providing the best possible support and that we meet and HMRC will investigate every complaint made to all our national and international obligations. The the Pay and Work Rights Helpline. equipment has been scrutinised to ensure its provision Research shows that internships and work experience is consistent with export controls under the Consolidated programmes can be valuable opportunities for young EU and National Arms Export Licensing Criteria and people taking their first steps in the labour market. EU restrictions on the provision of goods to Syria (as Our work on interns and the National Minimum agreed by Member States on 27 May 2013). The UK Wage aims to achieve the right balance between ensuring does not supply weapons to anybody in Syria. that opportunities for young people are not cut off and minimising the risk of exploitation. Welfare Assistance Schemes Our concern, if we were to prohibit unpaid internships, Question is that this may lead to employers recruiting interns Asked by Baroness King of Bow through informal and privileged networks with adverse effects on social mobility or have adverse consequences To ask Her Majesty’s Government, in the light on the number of available opportunities. of their decision not to contest the judicial review of the decision to cease funding for Local Welfare There is no definition of an internship in minimum Assistance, whether they will reinstate that funding wage legislation and interns are considered in the same way as everyone else with regards to whether the for 2015–16. [HL2304] minimum wage is due. The key issue is whether or not The Parliamentary Under-Secretary of State, Department they are workers as defined by minimum wage legislation. for Work and Pensions (Lord Freud) (Con): From April If they are, then they are eligible for the minimum 2015 it was intended funding for local welfare provision wage unless a specific exemption applies. Volunteers would be funded from the general grant to Local are not workers and are not eligible for the minimum Government. The general grant took this into account. wage. Wednesday 29 October 2014

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Defence: Air Traffic Management...... 115 Transforming Rehabilitation...... 120 EU: Foreign Affairs Council and General Affairs Council ...... 115

Wednesday 29 October 2014

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Apprentices...... 153 Mental Health Services...... 159

China...... 153 Morocco ...... 160

Coalition Governments...... 154 North Korea ...... 160

Disabled Students’ Allowances ...... 154 North Sea Oil...... 161

Electronic Warfare...... 155 Orthopaedics ...... 161 Pakistan...... 163 EU External Trade: USA...... 155 Pensions: Northern Ireland...... 163 General Practitioners...... 156 Prisoners’ Transfers: Northern Ireland...... 164 Gibraltar: Spain...... 156 Public Sector: Pensions ...... 164 Higher Education: Finance...... 157 Public Statues: Greater London...... 165 Homelessness...... 157 Regional Schools Commissioners: Greater London...... 166 In Vitro Fertilisation ...... 158 Syria ...... 166 India ...... 158 Welfare Assistance Schemes...... 167 Israel...... 159 Work Experience...... 168 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL1991] ...... 154 [HL2131] ...... 154

[HL2096] ...... 164 [HL2133] ...... 161

[HL2097] ...... 164 [HL2178] ...... 160

[HL2098] ...... 164 [HL2179] ...... 161

[HL2099] ...... 164 [HL2183] ...... 159

[HL2100] ...... 163 [HL2197] ...... 155

[HL2108] ...... 156 [HL2199] ...... 153

[HL2109] ...... 164 [HL2200] ...... 154

[HL2116] ...... 158 [HL2204] ...... 166

[HL2118] ...... 157 [HL2205] ...... 167 Col. No. Col. No. [HL2208] ...... 159 [HL2305] ...... 157

[HL2217] ...... 163 [HL2326] ...... 160

[HL2219] ...... 168 [HL2328] ...... 162 [HL2335] ...... 153 [HL2258] ...... 165 [HL2373] ...... 155 [HL2259] ...... 166 [HL2374] ...... 155 [HL2285] ...... 156 [HL2375] ...... 155

[HL2287] ...... 158 [HL2396] ...... 166

[HL2304] ...... 167 [HL2397] ...... 166 Volume 756 Wednesday No. 48 29 October 2014

CONTENTS

Wednesday 29 October 2014 Introduction: Lord Goddard of Stockport ...... 1191 Questions Police and Crime Commissioners ...... 1191 Child Abuse: Police Investigations...... 1193 Gaza: Reconstruction...... 1196 European Arrest Warrant ...... 1198 Scotland: Devolution Motion to Take Note ...... 1201 Grand Committee Consumer Rights Bill Commitee (6th Day)...... GC 441 Written Statements...... WS 115 Written Answers...... WA 153